Stephen Glass is quite a writer. When he worked for the New Republic, I loved his articles. They were invariably well-researched and dealt with hot topics. I remember one where he claimed to have attended a meeting of the great right wing conspiracy. Fascinating stuff.
But then it was determined that they were all lies. He was fired and left journalism in disgrace. Now, a dozen years later, he has applied to be a member of the California bar. He was rejected, appealed and won admission. That order is on appeal to California’s highest court. The case raises fascinating issues. Do past bad acts serve as predictors of future misconduct? Can we judge a person’s moral worth by the mistakes they have made? Can our sins be forgiven?
Connecticut, like every other state, has a character and fitness component of its bar examination process. This makes perfect sense when you consider that the purpose of bar regulation is to assure the courts and the public that those who practice law are possessed of some minimum levels of skill and competence as well as being physically, mentally and morally fit for the challenges of the practice. The rub is how to do this.
Legal knowledge is pretty easy to test for—the bar exam has developed into a fairly reliable tool to evaluate how much the applicants have retained from their lectures. Yes, a whole industry has developed around bar exam prep, but cramming for the bar exam is not much different from cramming for a trial.
Connecticut’s bar gatekeepers ask a lot of questions on their application about prior problems such as those that Glass had. They want to know if the applicant has had judgments against her, has been accused of dishonesty, has been denied a bond, has had a license revoked, been arrested or has a history of motor vehicle violations. Such questions presume that the past is a good predictor of the future. But no one has ever tested that theory until now.
Recently, Professor Leslie Levin of UConn Law School and two colleagues completed a two-year review of selected years of Connecticut bar admission information, comparing pre-admission character and fitness data with post-admission lawyer discipline. The question posed was whether pre-admission issues were a good predictor of later problems. The results say not. According to the data, a pre-admission history of problems such as reviewed in the character and fitness process is only marginally useful to predict later bar discipline trouble. Factors such as gender and class rank may be more better predictors than bankruptcy or criminal trouble.
While many may be surprised by these findings, I was not. After reviewing thousands of bar discipline matters while chief disciplinary counsel, I came to realize that the things that get most lawyers into discipline hot water are not things that could have been predicted when they were admitted. Problems such as depression, mid-life crises, drug dependency, burnout and gambling usually develop after a decade or so in practice. Yes, there are the few who quickly flame out, but the majority of lawyers in serious trouble have been at it for some time. And very few had pre-admission character and fitness issues.
Interim Chief Disciplinary Counsel Pat King maintains that better predictors of bar discipline troubles are class rank, law school ranking and number of attempts at passing the bar exam. Her feelings are shared by many in bar discipline.
Having no other tools to use, most discipline systems do what Connecticut does—they make their decisions based upon the past history of the applicant. While the focus is on present fitness, the past looms heavily as prologue. But if past problems bear little empirical relationship to post-admission troubles, can we justify their use?
The Connecticut Supreme Court, in a case called Doe v. Bar Examining Committee, noted that testing for moral worth requires a deft and delicate touch, “an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth.”
The Connecticut Bar Examining Committee deserves huge amounts of praise for being the first to welcome such a study as Professor Levin’s. Hopefully, others will try to replicate the results.
After all the dust settles, whether we will find better tools to test the worth of applicants is anyone’s guess. But if the basis of our decision-making is only intuition, we might want to rethink the process.•