“Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications.” Thus starts the California Supreme Court’s Jan. 27 decision that declined to admit Glass to the practice of law, based on the court’s assessment of Glass’ moral fitness. The decision presents an opportunity to ask questions about the nature of moral character, fitness to practice law, and the relationship of bar admission as a gatekeeping process to the rest of the law governing lawyers.
To gain admission to the bar, a person must be of “good moral character” (Cal. Bus. & Prof. Code §§ 6060(b), 6062(a)(2)), which state bar rules define as a specific set of “qualities,” including honesty, obedience to the law, and respect for the rights of others. The bar admission process screens for persons whose past conduct is inconsistent with these moral traits. As the California Supreme Court reiterated in Glass’ case: “Persons of good character … do not commit acts or crimes involving moral turpitude—a concept that embraces a wide range of deceitful and depraved behavior.” The court found that Mr. Glass’ deceptions as a journalist, while he was in law school, suggested a dishonest character.
The question for Mr. Glass and others is whether the law governing lawyers creates a space for redemption—that is, whether the law sees one’s moral character as relatively fixed or fluid.
California law is ambivalent, but leans toward a hopeful account of human nature.
On the one hand, our state bar admissions process treats moral character as a quality that can be assessed, implying that character is sufficiently stable to make any assessment meaningful. The assessment outcome—that an applicant is either fit or unfit—suggests that one’s prior bad acts are not mere lapses, but, instead, are evidence of one’s moral essence, one’s propensity to make unacceptable moral choices. On this account, the moral fitness application screens out (at least some) bad apples.
On the other hand, there is a path to rehabilitation for persons seeking entry into the profession. The law identifies good acts that allow an applicant to meet his burden to make a compelling showing of changed moral character. Specified exemplary acts include law compliance, honesty in the bar admission process, treatment for underlying psychological disorders that may have contributed to past moral turpitude, acceptance of responsibility for past wrongs, compensation to injured third parties, and community service. But as the state Supreme Court just reminded us in the Glass ruling: “Cases authorizing admission on the basis of rehabilitation commonly involve a substantial period of exemplary conduct following the applicant’s misdeeds.” The length of time of exemplary conduct necessary to demonstrate reformation of character varies with the reprehensibility of the prior bad acts, but typically runs between six and 10 years. The opportunity to demonstrate rehabilitation suggests that, indeed, the unfit can become fit. On this account, moral character is fluid, at least over long periods of time.
The court did not find that Glass is incapable of developing the requisite moral character for bar admission. Instead, the court held that Glass failed to meet his burden to show rehabilitation on the particular facts in the record in his case. The court was particularly troubled by evidence of dishonesty and disingenuousness occurring after the exposure of Glass’ journalistic deceptions, and running through a state bar evidentiary hearing in 2010. The court found that, in the process of attempting to satisfy the good moral character requirement, Glass was insufficiently forthcoming about his past bad acts. Furthermore, the court found that Glass’ efforts since ending his journalism career seemed to be mostly directed at advancing his own career and financial and emotional wellbeing, rather than at truly serving others in the community.
Can Glass ever be deemed morally fit, even though, as the court notes at the outset of its decision, he is famously dishonest? The answer is yes as a formal matter, and—probably—yes as a practical matter. As a formal matter, Glass needs to establish an extended period of exemplary conduct post-dating his 2010 state bar evidentiary hearing, including substantial community service in addition to continued self-improvement. This formal opening makes him potentially eligible to be deemed fit to practice by approximately 2020. As a practical matter, the court might always treat Glass as a public relations problem. But, at some point, the court must feel compelled to honor in practice the rehabilitative ideal embedded in the law governing admission to the bar.
At the end of the day, Glass could simply become more patient and adept at crafting a record of rehabilitation, without necessarily changing his true colors. We should not be unduly alarmed by the possibility that by carefully building the right record Glass could, at some later date, game the moral fitness evaluation and thus be deemed rehabilitated despite the possible absence of a truly reformed character. After all, no one of us is morally perfect. The propensity to make poor moral decisions is present on a continuum, one that changes for each person given the circumstances. Few experienced lawyers can claim never to have rounded up a time entry, or to have skirted the line between zealous advocacy and obstructionism, or to have otherwise fallen short of our professional ideals in any of the innumerable and largely invisible ways that make practice so ethically challenging.
That is why lawyers are justifiably so heavily regulated, post-bar admission, via a combination of public law (e.g., disciplinary rules) and private law (e.g., torts). Between the poles of morally fit and unfit stand the rest of us: flawed individuals doing our best to exercise sound professional judgment under difficult and often murky circumstances. We should take little comfort in the spectacle of Glass’ failure to establish rehabilitation, for, as Cicero said, “the enemy is within the gates.”
Morris Ratner is associate professor of law at UC Hastings College of the Law, where he teaches Civil Procedure, Legal Ethics and Law Practice Management.