From My Perspective: Advising Applicants on the Character and Fitness Process

This article originally appeared in The Bar Examiner print edition, Spring 2022 (Vol. 91, No. 1), pp. 54–58.

By James E. Spence, Jr

All applicants for bar membership must undergo an investigation of their fitness and character. Depending on the jurisdiction, this process takes place before or after the applicant sits for the bar examination. The investigation begins with bar admissions staff and may include review and adjudication by members of the board of examiners, a separate character and fitness board, and/or the jurisdiction’s highest court.

Essays from a broad range of perspectives on bar admissions-related topics, with the goal of stimulating conversation and promoting understanding among the different stakeholders in bar admissions.

All jurisdictions have developed detailed fitness applications that require the applicant to disclose much of their life history. Applicants are expected to be complete and candid in doing so. Deficient responses might delay the process and call the applicant’s qualifications into question.

This article offers basic guidance for those advising applicants on how to navigate the character and fitness process and is based on my experience advising applicants for certification of fitness before the Georgia Office of Bar Admissions.

Applicant Awareness of the Process: The Three Stages

There are three times when potential bar applicants should pay particular attention to the fitness certification process.

1. When Beginning Law School

Potential applicants should become generally familiar with the character and fitness process when beginning law school. They should consult the character and fitness application (this application may go by different names and in some jurisdictions may even be part of the bar exam application) as well as the board rules and any character and fitness standards of every jurisdiction where they may seek admission. Character and fitness standards (whether in the form of policy statements in some jurisdictions or inherent in character and fitness and/or bar application questions) are especially important at this time, as they detail conduct that is problematic and to be avoided or mitigated during law school and while pending admission.

Disclosure of the following on the fitness application typically causes further inquiry:

• Unlawful conduct
• Academic misconduct, including plagiarism
• Making false statements, including omission of relevant facts in the character and fitness process
• Misconduct in employment
• Acts involving dishonesty, fraud, deceit, or misrepresentation
• Abuse of legal process
• Neglect of financial responsibilities, especially failure to repay student loans, meeting/remedying financial obligations (e.g., checking credit score, paying off old debts, ensuring timely child support payments)
• Neglect of professional obligations
• Violation of an order of a court, especially failure to pay child support
• In those jurisdictions where such an inquiry is allowed, evidence of mental or emotional instability
• Evidence of drug or alcohol dependency
• Denial of admission to the bar in another jurisdiction on character and fitness grounds
• Disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction1

Applicants should be advised that admission to law school does not guarantee success before a character and fitness board, as law schools may have comparatively less stringent requirements for admitting students. Applicants should be encouraged to realistically assess any vulnerability created by their personal history. If necessary, during law school they should enact a plan to demonstrate rehabilitation.

2. When Preparing the Application

The character and fitness application is the board’s first impression of applicants. It must be thorough and honest. Failure to disclose potentially harmful information, even inadvertently, may cause the board to question applicants’ honesty, creating a candor problem (i.e., lack of complete honesty), thus vastly complicating the original issue. Applicants should be encouraged to allow enough time to collect all required documentation in support of the application, prepare it carefully, and review it thoroughly before filing.

In preparing the fitness application, applicants should review earlier documents, such as similar applications filed in other jurisdictions, college and law school admission applications, applications for admission into other professions, credit histories and applications, criminal histories, driving records, and the like. If they have not retained such documents, unless they are certain they contain no adverse information, applicants should obtain copies. The board has access to all these documents and always meticulously cross-checks. Advise applicants to perform an equivalent comparison before filing the character and fitness application.

For obvious reasons, the character and fitness application must disclose all relevant information contained in the earlier documents. Equally important, applicants should determine whether any prior document omits information that should have been disclosed at the time and is then disclosed in this character and fitness application. If the board finds an applicant omitted material information in a previous application, even if disclosed in the current one, it may find a problem with the applicant’s candor. Depending on the severity of the omission, applicants should consider amending the earlier application. At a minimum, they should make written disclosure of the omission to the relevant institution. Applicants should expect to be questioned about the original omission.

Many law school and college admission applications are continuing, meaning students are required to amend as events require. For example, if a law school application requires disclosure of all criminal arrests, one must amend it to disclose a drunk driving arrest during one’s time as a law student. If applicants have not properly amended an earlier application, they should be prepared to explain the circumstances and expect to have their candor questioned. The board will be skeptical of an explanation that applicants did not realize the application was continuing in nature.

As fitness applications are continuing, be sure to advise applicants to amend in a timely manner as necessary.

3. If There Are Proceedings before the Board Based on the Application

Character and fitness boards certify a large majority of applicants based on review of the application and routine verification of information. However, they identify a small number as requiring additional examination. Sometimes an application is unclear, or incomplete. Typically, routine inquiry and supplementation resolve such matters. In other instances the application discloses potentially concerning information. The remainder of this article addresses cases where further proceedings are necessary.

A Five-Step Approach to Establish Present Fitness

Character and fitness boards realize that all incidents of misconduct are not of equal concern. As the typical mandate of the board is to determine applicants’ present fitness, it evaluates the specifics of any matter of interest as it might be relevant to present fitness, considers whether rehabilitation must be shown to establish present fitness, and, if appropriate, considers what the applicant has done to prove rehabilitation. Applicants who have committed misconduct of concern to the board should consider the following approach to prove present fitness.

1. Applicants must be sure to know precisely what the board believes they have done wrong.

Applicants must understand and be able to articulate what they’ve done wrong. If they truly have no idea why the board has pursued its investigation into their application, applicants should be advised to consult with counsel experienced in the bar examination process to review it and suggest possibilities. Applicants should never go into a meeting with the board without a clear idea of the area(s) of its concern.

In some jurisdictions, as a preliminary step of the process, the board may invite the applicant to an initial, informal meeting without giving advance notice of its area(s) of concern. Often these meetings begin with a variant of the question: “Do you know why we’ve asked you to meet with us today?” One may think it unfair to invite an applicant to such a meeting without first specifying issues of concern. The board believes it is not. It expects applicants to be familiar with their application and issues typically of concern to it. Applicants should have enough insight to form a reasonable idea of the issue(s) and be ready to address them.

If applicants prepare for such a question properly, it is very much to their advantage. They will have a terrific opportunity to give a response that impresses board members with insight, honesty, and thoughtfulness.

2. Applicants must show an understanding of why the transgression is relevant to service as an ethical lawyer.

It is not enough to specifically identify prior misdeeds. Applicants must also know why such conduct creates a legitimate concern regarding whether they would be an ethical and responsible lawyer. If they don’t understand the connection, and/or are unable to articulate it, the board might conclude that they are at risk to repeat the same kind of misconduct out of ignorance if/when practicing.

If called to appear before the board and unsure of the connection between the misconduct and the duties of a lawyer, or how to express it, applicants should consider consulting with someone experienced in representing bar applicants who can help.

3. Applicants must be able to articulate what they have done to overcome prior misconduct.

If applicants understand why their prior conduct is unacceptable for a lawyer but persist in engaging in such conduct, the board may conclude that they are not responsible enough to represent clients appropriately.

Applicants must know that change has to be both in attitude and conduct. Have them write a list of changes made and explain to a trusted advisor all they have done to overcome prior misconduct. Encourage difficult questions. Applicants can record themselves  in a simulated hearing before the board and analyze what they’ve said. If unpersuasive to themselves, they’re unlikely to persuade anyone else.

4. Applicants must show rehabilitation.

In Georgia, “rehabilitation” in the context of bar fitness is more than reform from prior inappropriate behavior. The concept is explained as follows:

Merely showing that an individual is now living as and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. Positive action showing rehabilitation may be evidenced by such things as a person’s occupation, religion, or community service. The requirement of positive action is appropriate for applicants for admission to the bar because service to one’s community is an implied obligation of members of the bar.2

Not all jurisdictions may have identical requirement—for example, many jurisdictions do not consider an applicant’s religious affiliations and works. Even so, if applicants are called to meet with the board, they should expect to be asked about such things as community service and other works showing commitment to improve society. Applicants must give an organized, persuasive response.

Advise applicants that they cannot establish a helpful history of rehabilitation quickly. They must prove consistent behavior over a significant time—the longer the better. For example, if an applicant has a history of irresponsible financial behavior, they should establish no less than a six-month period of never being late on a payment of any kind.

If applicants must show rehabilitation but have not begun the process, they should get going immediately.

5. Applicants must convince the board that they will not repeat prior misconduct.

Applicants bear the burden to prove that they are recovered from prior difficulty, rehabilitated, and presently fit. If applicants have taken the steps reviewed above, they have done the right things to carry their burden and shown credibility based on their conduct.

If they have rehabilitated from past bad conduct, they should be proud of what they have accomplished and be prepared to communicate to the board in a direct, honest way.

Handling Failed Excuses

Character and fitness boards encounter reoccurring excuses for applicants’ failure to report detrimental information. Because boards hear them frequently under unconvincing circumstances, such explanations­—even if truthful—may be received skeptically.

“My counsel told me I didn’t have to disclose the information, so I didn’t.”

An applicant’s explanation that he or she omitted damaging information upon advice of counsel is unpersuasive to the board. It is the applicant’s responsibility—not counsel’s—to be sure that the application is correct.

“It happened so long ago that I simply forgot about it.”

Character and fitness boards encounter this excuse in a wide variety of circumstances, but especially when an applicant fails to disclose one or more arrests for minor criminal infractions committed when the applicant was much younger.

Even if the applicant truly forgot an infraction, he or she may find the board to be quite skeptical.   Generally, boards believe that if an incident is material to a specific question on an application, it is sufficiently important that the applicant should not have overlooked or forgotten it. Its initial reaction may be to suspect that “forgetfulness” isn’t the true reason for the omission. This possibility should be avoided, as it brings the applicant’s honesty into question.

Even if the board concludes the undisclosed information is of little consequence, failure to disclose it may indicate a conscious disregard for the applicant’s obligation to report information and/or a lack of diligence in preparing the application.

Applicants should not analyze questions in the application in a hyper-technical way to justify withholding damaging information. Some applicants do this in criminal matters. Generally, if an applicant has had an encounter with law enforcement, the board wants to know about it. For this reason, many applications require disclosure of arrests without regard to the ultimate outcome of the case. Depending on the jurisdiction, even expungement may not absolve the obligation to report an arrest.

If applicants possess a criminal record, even a minor one, they should get a copy of it and be sure to report every incident the fitness application requires. If unsure whether the application requires disclosure of an incident, they should disclose it.

“Since I’m no longer the same person I was, the character and fitness board didn’t need to know.”

Applicants should never exercise editorial judgment to decide what information should or would make a difference to the board. Even if the board completely discounts an incident, failure to disclose would harm the applicant. It proves the applicant was aware of the requested information and deliberately chose to withhold. This renders them untruthful by omission. It also demonstrates fundamental disrespect for the board, the process, and the applicants’ role in it.

“I didn’t report it because I thought if I didn’t tell them, they’d have no other way of finding out.”

This excuse is given rarely but, I suspect, is more frequently the true reason for many failures to disclose. Any applicant who opts for this rationale has chosen an especially dangerous path. It demonstrates fundamental dishonesty and, to many board members, disqualifies the applicant.

For those inclined to give this approach even the slightest consideration, they should ask themselves how they could believe this approach could ever be acceptable. All character and fitness applications are sworn. Applicants have made an oath or affirmation that the application contains the truth and consciously omits no material fact. Why should the fact that requested information would be unknown to the board in any way change the oath and obligation to disclose it honestly?

If honesty isn’t the applicants’ primary concern, they should consider the possibility that the board has learned the damaging information from other sources. Should it have done so, and if the board concludes the applicant withheld the information because they believed it would not be discovered through other sources, it will conclude the applicant is dishonest. The application will almost certainly be denied.

Even if the board does not discover the dishonesty, applicants have not necessarily escaped. The American Bar Association Rule of Professional Conduct 8.1 states in part: “An applicant for admission to the bar … shall not … knowingly fail to respond to lawful demand for information from an admissions or disciplinary authority.”3 Applicants can expect any intentional omission of information on their fitness application to imperil them well into their legal career.

Conclusion

Character and fitness boards have the very difficult task of determining whether applicants are fit and able to serve as lawyers. Essential to the process is that applicants disclose honest and complete information. If they fail to do so, they show a lack of candor. For that reason alone, their fitness is in question.

Applicants should try to ensure that they have omitted no information inadvertently. If applicants later learn their application as filed is incorrect or incomplete, they should amend as appropriate—even at the possible cost of exposing and explaining the original error.

If applicants follow these suggestions, they will maximize the chance to succeed in the character and fitness application process.

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