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Tabloid journalism is sensationalist by nature, so it was hardly surprising when the Daily News in New York devoted half of its April 10, 2006, front page to the story of Adrianna Dominguez, a Brooklyn College law student who had appeared nude in a Playboy TV production called “Naked Happy Girls.” But even the Daily News needs something more than voyeurism to justify front page coverage, so the reporter had to dig pretty deep for a plausible human interest angle. Hey, maybe the exposure will ruin the poor girl’s career. Could it keep her from being admitted to the bar? It was a contrived question, but the newspaper managed to coax a useful response out of the New York Bar’s Committee on Character and Fitness. “It may have an effect,” speculated an unnamed committee representative. “It’s a possibility in the worst-case scenario that the person does not get admitted.” That was just the hook the story needed to make it respectable — there’s more than prurient interest here! — and it was quickly picked up by The Wall Street Journal‘s online edition, followed by various legal-academic blogs, all of which weighed in on the question of character and fitness. Most commentators tut-tutted about Dominguez’s poor judgment, although virtually no one thought the video should prevent her admission. We are long past the time when character and fitness committees served as guardians of Victorian rectitude. Today’s committees focus on the likelihood of a candidate’s future misconduct, not her immodesty. And, frankly, there just isn’t any discernible connection between light-hearted flashing and, say, the potential to lie to judges or steal from clients. End of discussion. Then again, perhaps there is a more profound principle involved. University of California-Los Angeles professor Eugene Volokh, constitutional law scholar and libertarian ringleader of the widely read Volokh Conspiracy blog, raised the discourse to another level, opining that it would be a “clear First Amendment violation for a state bar to consider this in the character and fitness evaluation.” Making a “sexually themed video” is protected by the Constitution, he said, as long it doesn’t cross certain lines. (Child pornography, for example.) A SICK JOKE First Amendment claims are always attractive, but it was not long before another law student put Volokh’s theory to the test. Two days after the massacre at Virginia Tech, an anonymous post on the despicable AutoAdmit Web site (previously best known for repulsive comments about women and minorities) raised the possibility of a replay at a San Francisco law school. The post was headed “Just decided not to do a murder-suicide copycat at Hastings Law.” Hastings College of the Law dean Nell Newton recognized that it was probably a “sick joke,” but she obviously had to take it seriously, which meant evacuating the school and canceling classes for the day. The FBI subsequently determined that the poster, who had used the pseudonym Trustafarian, was a first-year law student at the Boalt Hall School of Law in Berkeley. The following week, Boalt dean Christopher Edley Jr. announced that the law school would seek to expel Trustafarian (the school did not release his real name), due to “the intrinsic wrongness of the act . . . and the disruption, turmoil, and emotional toll” that it caused. Edley accurately described Trustafarian’s post as an “astounding instance of . . . reckless disregard for the welfare of others,” but let’s assume that it did not actually violate any laws (as of this writing, no charges have been filed). Like it or not, sick jokes are covered by the Constitution, just like erotic videos, so Trustafarian is sure to argue that he cannot be disciplined by a state-operated law school or kept out of the bar, if he manages to make it that far. Can he count on the same broad protection — it was just free expression, folks! — as Adrianna Dominguez? The answer turns out to be pretty complex. PREDICTIVE VALUE The First Amendment makes no ready distinction between nudity and creepy-though-not-quite-threatening rants. In both disciplinary and bar admission proceedings, however, the inquiry is not limited by the familiar “clear and present danger” standard. As many courts have held, the ultimate issue is not the expressive nature of the applicant’s speech, but rather its predictive value. In other words, does the aspiring lawyer’s questioned behavior raise a strong and reliable inference of future misconduct? If so, admission can be denied. If not, welcome to the bar (but try not to do it again). The best known example (mentioned by Volokh) is the racist and anti-Semitic cult leader Matthew Hale, who was refused admission to the Illinois bar because his “publicly displayed views” were “diametrically opposed” to the legal profession’s obligation to equality and nondiscrimination. At the time, I went on record in support of Hale’s applica-tion, arguing in an op-ed that “racist ideas are ideas nonetheless” and that he should not be penalized for his opinions. Well, it turned out that the bar examiners understood Hale better than I did. His strident expressions of “Aryan” supremacy, even though lawful under the First Amendment, did indeed evidence his utter contempt for the law. Following his exclusion from the bar, he was convicted of soliciting the murder of a federal judge, whom he had described as a “probable Jew.” That precedent spells big trouble for Trustafarian, who has not exactly shown himself to be a pillar of fiduciary trust and confidence. On the other hand, it would be a mistake to wield the Hale rule too broadly. Hale had made a career out of racism, leading an organization that was committed to subjugation of the “mud people.” His repeated pronouncements meant something, and it was impossible to dismiss them as merely rash or ill-considered. Trustafarian, as far as we know, apparently committed a single appalling and outrageous act, which he can attempt to characterize as an aberrant instance of Web-induced dementia. That might cause the authorities to give him another chance, although I wouldn’t bet on it. FULL DISCLOSURE? Brooklyn College and Boalt Hall are a full continent apart, which also happens to be the metaphoric distance between one student’s harmless exhibitionism and another’s alarming screed. So no matter what happens to Trustafarian, it is almost certain that the New York bar examiners will eventually decide — if they bother to reach the question — that video nudity has no bearing on fitness to practice law. That won’t be quite the last word on the matter, however, because there is one more ethics issue to consider. Once she is admitted to the bar, would Dominguez ever have to tell her clients about her brush with notoriety? In many jobs, of course, her risqu� lark would be completely irrelevant — no law firm client would fret about the youthful escapades of an associate assigned to library research or document production. But what if she becomes a public defender? And what if there are knuckle-draggers in the prosecutor’s office who like to brag about ogling her video? That presumably wouldn’t upset Dominguez. “I’m not that shy,” she said on camera, according to the Daily News, “so it wouldn’t bother me if, say, the opposing counsel has seen these pictures of me.” Her clients might not be so nonchalant about the possible impact on her advocacy. It is difficult enough for any new defense lawyer to get respect from the prosecution, especially when plea bargaining, and let’s face it, naked pinups are not going to make anyone seem tougher. No one could blame a vulnerable defendant for wanting a lawyer who doesn’t draw sniggers, even if the sniggering is puerile and unfair. Uncomfortable as it may be, that suggests a duty of disclosure. The New York Code of Professional Responsibility provides that crucial decisions belong “exclusively” to clients, who must therefore be informed of all “relevant considerations.” But what happens when client autonomy collides with an attorney’s right to privacy? Dominguez herself has rather starkly waived any possible privacy interest, but it is not hard to imagine other situations where a lawyer’s effectiveness may be seemingly (if not actually) compromised through no fault of his or her own — perhaps as the target of an outrageous slander, the victim of a criminal assault, or an unwilling participant in a lurid divorce. There must be some personal information — about activities, associations, experiences, beliefs — that lawyers are entitled to keep to themselves, even if certain clients might reasonably prefer to know the details. But how and where do you draw the line? That could be the most intriguing question raised by the Dominguez story, but it is far too subtle ever to be on the front page of the Daily News.
Steven Lubet teaches law at Northwestern University. His latest book is Lawyers’ Poker: 52 Lessons That Lawyers Can Learn From Card Players (2006). This article first appeared in The American Lawyer , an ALM publication.

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