The Character and Fitness Inquiry: Can We Predict “Problem” Lawyers?

Leslie C. Levin*

Every U.S. jurisdiction requires bar applicants to demonstrate that they have the requisite

character and fitness to become a lawyer. The character inquiry seeks to determine “whether the

present character and fitness of an applicant qualifies the applicant for admission.1 In most

states, bar examining authorities seek extensive information about the applicant’s personal

history, and past misconduct typically creates a rebuttable presumption that an applicant lacks

the requisite character to practice law.2 Bar examining authorities look at a variety of factors

when considering any past misconduct including, inter alia, the seriousness and recency of the

misconduct, the cumulative effect of the conduct, and evidence of rehabilitation.3As a practical

matter, few applicants are denied admission to the bar on character and fitness grounds.4

The character inquiry has been criticized on a variety of grounds, including the absence

of evidence that the inquiry succeeds in weeding out those individuals who are likely to do harm

* Professor of Law, University of Connecticut School of Law. I am grateful to Christine Zozula and Peter Siegelman for their work on the project that is briefly described in this paper and for substantially advancing my thinking about the topics discussed here. 1NATIONAL CONFERENCE OF BAR EXAMINERS AND ABA SECTION OF LEGAL EDUCATION AND

ADMISSIONS TO THE BAR, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS 2012, at viii-ix (2012) [hereinafter “COMPREHENSIVE GUIDE”]; see alsoJennifer C. Clarke, Conditional Admission of Applicants to the Bar: Protecting Public and Private Interests,BAR EXAMINER,May, 53, 59 (1995). 2See, e.g., Keith Swisher, The Troubling Rise of the Legal Profession’s Good Moral Character, 82 ST. JOHN’S L. REV.1037, 1045 (2008). In some states, certain misconduct, such as a serious felony, is automatically disqualifying, at least for a period of time. COMPREHENSIVE GUIDE , supra note 2, at 4-5. 3Aaron M. Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination for Bar Applicants,” 40 AKRON L. REV. 255, 278 (2007); Donald H. Stone, The Bar Admission Process, Gatekeeper or Big Brother: An Empirical Study, 15 N. ILL. U. L. REV. 331, 364-66 (1995). 4 A study in the early 1980s found that only 0.2% of all applicants wee denied admission on this basis. Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L. J.491, 516 (1985). Recent denial rates based on character and fitness grounds are not easy to obtain. Denial rates in Connecticut on character and fitness ground are roughly 1-2 people (0.14%) per year. In Missouri, denials during 2002-2008 ranged from .18% to .477%. Missouri Board of Law Examiners, Frequently Asked Questions (FAQs) (2011), https://www.mble.org/faq#360. Applicants who are denied bar admission on character and fitness grounds are often given leave to reapply.

1

if they become lawyers.5Of course, it is very difficult to prove that someone who was denied bar

admission would have become a problem lawyer. But we do know that attempts to predict future

conduct, even by trained clinicians, have met with only mixed success.6Moreover, predictions

based on human judgments by a variety of actors (e.g., psychiatrists, college counselors, judges,

etc.) are often less reliable than predictions based on algorithmic models.7This evidence suggests

that intuitive judgments by bar examining authoritiesabout who might become a problem lawyer

may not be especially reliable.

Commentators have also argued that the character and fitness inquiry cannot reasonably

be expected to prevent admission of “problem” lawyers because the inquiry comes too early to

predict which applicants might become problems.8This argument finds support in the research

showing that lawyers’ ethical orientation and decision making are significantly affected by the

context in which they work.9This argument also finds support in the discipline statistics. The

most common subjects of lawyer discipline are disproportionately middle-aged males who

5See, e.g.,John Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. REV. 93 (2001); Rhode, supra note 4, at 529-32, 555-62 ; Roger Roots, When Lawyers Were Serial Killers: Nineteenth Century Visions of Good Moral Character, 22 N. ILL.U. L. REV. 19, 35; Swisher, supra note 2, at 1064. 6 Alice Woolley & Jocelyn Stacey, The Psychology of Good Character: the past, the present and future of good character regulation in Canada, inREAFFIRMING LEGAL ETHICS: TAKING STOCK AND NEW IDEAS 178-79 (Kieran Tranter et al. eds. 2010). 7 William M. Grove & Paul E. Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The Clinical-Statistical Controversy, 2 PSYCHOL., PUB. POL’Y & LAW 293 (1996). 8 Rhode, supra note 4, at 515. 9See, e.g.,JEROME CARLIN, LAWYER’S ETHICS: A SURVEY OF THE NEW YORK CITY BAR (1966); Lynn Mather et al., DIVORCE LAWYERS AT WORK:VARIETIES OF PROFESSIONALISM IN PRACTICE(2001); Kimberly Kirkland, Ethics in Large Law Firms: The Principle of Pragmatism, 35 U. MEMPHIS L. REV. 631 (2005); Lynn Mather & Leslie C. Levin, Why Context Matters, inLAWYERS IN PRACTICE: ETHICAL

DECISION MAKING IN CONTEXT 3 (Leslie C. Levin & Lynn Mather eds. 2012); Robert Nelson, Ideology, Practice and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm, 37 STANFORD L. REV. 503 (1985).

2

practice in solo or small law firms.10Bar examining authoritiesoften do not know who will be

practicing in these settings until after applicants are admitted to the bar.11Likewise, disciplined

lawyers often report some depression related to work or life circumstances, alcohol abuse, or

family or financial crises.12 These problems often arise several years after the character and

fitness inquiry occurs.13

Nevertheless, it is possible that certain behaviors displayed by bar applicants predict

which ones are morelikely to become problematic lawyers. Research in other fields may be

useful in this regard. For instance, psychologists and other researchers have found a relationship

between academic dishonesty and unethical behavior at work (e.g., theft from employers,

violations of work place policies, etc.).14 Academic dishonesty also correlates with measures of

risky driving behavior, unethical behaviors in clinical settings, illegal behaviors and personal

unreliability.15Most of the studies have been limited to undergraduate students, although a few

10RICHARD L. ABEL, LAWYERS IN THE DOCK: LEARNING FROM NEW YORK DISCIPLINARY

PROCEEDINGS54-55, 496 (2008); Patricia W. Hatamyar & Kenneth M. Simmons, 31 FLA. ST. U. L. REV. 785, 832-34 (2004); Leslie C. Levin, The Emperor’s Clothes and Other Tales About the Standards for Imposing Lawyer Discipline Sanctions, 48 AM. U. L. REV. 1, 51-52 (1998) 11Of course, some predictions about an applicant’s likely practice setting can be at the time of admission, based on the tier of law school attended and law school performance, but it seems unlikely that an applicant would be denied admission based on those measures. 12ABEL, supra note 10, at 90-91, 265-67; Rick B. Allan, Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial? 31 CREIGHTON L. REV. 265, 268-69 (1997); Carol M. Langford, The Changing Structure of American Law Firms: Depression, Substance Abuse and Intellectual Property Lawyers, 53 U. KAN. L. REV. 875, 876-77 (2005); Levin, supra note 10, at 51-52. 13 G. Andrew H. Benjamin, et al., The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 INT’L J. L. & PSYCHIATRY 233, 241 (1990). 14Trevor S. Harding et al., Cheating in College and the Workplace: An examination of engineering undergraduates’ ethical behavior,ASEE Annual Conference & Exposition: Portland, OR, Jan. 2005;Sarath Nonis & Cathy Owens Swift, An Examination of the Relationship Between Academic Dishonesty and Workplace Dishonesty: A Multicampus Investigation, J. EDUC. FOR BUS., Nov./Dec 2001, at 69, 75; Randi M. Sims, The Relationship Between Academic Dishonesty and Unethical Business Practices, J. EDUC. FOR BUS.,Mar./April 1993, at 207. 15 Kevin L. Blankenship & Bernard E. Whitley, Jr., Relation of General Deviance to Academic Dishonesty, 10 ETHICS & BEHAV. 1, 6 (2000); Trevor S. Harding et al., Does Academic Dishonesty Relate to Unethical Behavior in Professional Practice? An Exploratory Study, 10 SCI.&

ENGINEERINGETHICS 311, 323 (2004); Gail A. Hilbert, Involvement of Nursing Students in Unethical

3

have looked at graduate business students.16 Nevertheless, the studies are of interest because

they suggest that academic misconduct may be correlated with other reckless or dishonest

behaviors that can be a problem in professional practice.

Psychometric testing and other information have also been used to predict problem

behavior in the work place. Researchers have focused closely on the construct known as

“Conscientiousness,” which is one of the “Big Five” factors in personality theory. Lower scores

on measures of Conscientiousness (e.g., Responsibility, Socialization and Self Control) have

been found to be predictors of counterproductive work behaviors such as theft and rule

violations.17 Certain personality measures on the California Psychological Inventory and the

Minnesota Multiphasic Personality Inventory correlate with unprofessional behavior by law

enforcement personnel18 and by medical students.19 Discrepancies, inconsistencies or omissions

by individuals when supplying life history information (e.g., criminal activity, drug use, etc.)

prior to being hired significantly differentiated disciplined and never disciplined law

enforcement personnel.20

Classroom and Clinical Behaviors, J. PROF. NURSING, July/August 1985, at 230, 232; Joe Kerkvliet, Cheating by Economics Students: A Comparison of Survey Results, 25 J. ECON. EDUC. 121, 132 (1994); Gwena Lovett-Hooper, et al., Is Plagiarism a Forerunner of Other Deviance? Imagined Futures of Academically Dishonest Students, 17 ETHICS & BEHAV. 323, 330 (2007); Nonis & Swift, supra note 14, at 75. 16Donald L. McCabe et al., Academic Dishonesty in Graduate Business Programs: Prevalence, Causes and Proposed Action, 5 ACAD. MGMT. LEARNING & EDUC. 294 (2006); Nonis & Swift, supra note 14, at 71; Sims, supra note 14. 17 Charles D. Sarchione et al., Prediction of Dysfunctional Job Behaviors Among Law Enforcement Officers, J. APPLIED PSYCHOL. , Dec. 1998, at 904, 905; Thomas H. Stone et al., Predicting Workplace Misconduct Using Personality and Academic Behaviors, inCRIME AND CORRUPTION IN ORGANIZATIONS: WHY IT OCCURS AND WHAT TO DO ABOUT IT, at 97, 101-102 (Ronald J. Burke et al. eds. 2011). 18 Sarchione et al.,supra note 17, at 909; Sellbom et al., Identifying MMPI-2 Predictors of Police Officer Integrity and Misconduct, 34 CRIM. JUST. & BEHAV. 985, 998-99 (2007). 19 Carol S. Hodgson, The Relationship Between Measures of Unprofessional Behavior during Medical School and Indices on the California Psychological Inventory, ACADEMIC MEDICINE, Oct. 2007, at 54. 20Michael J. Cuttler & Paul M. Muchinsky, Prediction of Law Enforcement Training Performance and Dysfunctional Job Performance with General Mental Ability, Personality, and Life History Variables, 33 CRIM. JUST. & BEHAV. 3, 18 (2006); Sarchione, supra note 17, at 906, 909.

4

Using a different approach, Maxine Papadakis et al. looked at the medical school records

of 235 graduates disciplined by state medical boards and compared those records to a control

group.21 They found that disciplinary action by a medical board was strongly associated with

prior unprofessional behavior reported in supervisors’ narratives during medical school and

somewhat less strongly associated with low MCAT scores and poor grades during the first two

years of medical school. A different retrospective study of internal medicine residents found that

residents with either low professionalism ratings on their Resident’s Evaluation summaries or a

low score on the internal medicine certification exam had nearly twice the chance of being

subsequently disciplined by a state licensing board.22 Disciplined diplomates also had more

unsuccessful attempts to pass the internal medicine certification examination than those in the

control group.23

Only one previous study has sought to explore whether there is, in fact, a relationship

between applicants who disclose “problem” histories during the bar admissions process and

those lawyers who are later disciplined. Based upon a review of 52 disciplined attorneys’

records and their bar admissions files, and a comparison to the general population of all

Minnesota applicants for bar admission, Carl Baer and Margaret Corneille found that disciplined

lawyers were more likely to reveal evidence of certain types of conduct in their admissions files

(e.g., arrests, possible substance abuse, involuntary employment terminations, financial

problems, etc.) than other bar applicants.24 Lawyers who were disciplined were also more likely

than other lawyers to fail the Minnesota bar examination at least once before they successfully

21 Maxine A. Papadakis, et al., Disciplinary Action by Medical Boards and Prior Behavior in Medical School, NEW ENG. J. MED., Dec. 2005, at 2673. 22 Maxine A. Papadakis. et al., Performance during Internal Medicine Residency Training and Subsequent Disciplinary Action by State Licensing Boards, ANNALS INTERNAL MED., June 2008, at 869, 873-74. 23Id. at 872. 24 Carl Baer & Peg Corneille, BAR EXAMINER, Nov., 5, 6-7 (1992).

5

passed it. But as Corneille later noted, “the study was not conducted scientifically and involved a

very small sample.”25

One topic of discussion at the ABA’s National Conference on Professional Responsibility

will be a recent study of Connecticut lawyers whichsuggests that some of the measures of past

conduct traditionally relied upon to evaluate the character and fitness of bar applicants to practice

lawdo not predict who will later be disciplined.26 And it appears that other measures

traditionally believed to reflect adversely on an applicant’s character and fitness to practice only

weakly predict those applicants who will laterbe subject to discipline. If these findings are

replicated in other jurisdictions, they raise obvious questions about whether the character and

fitness inquiryshould be continued in its current form.

Of course, even if the character and fitness inquiry relies on information that does not

strongly predict future discipline, this does not mean that the inquiry is entirely without value.

Perhaps the small number of applicants who are denied admission to the bar based on the

character inquiry would have done some very bad things if allowed to practice law. The

character and fitness requirement may also deter an additional number of individuals whose

backgrounds suggest that they would have been problematic lawyers from ever seeking bar

admission. The good character requirement might also have symbolic importance. It may signal

to the public that lawyers can be trusted. For the legal profession, the good character

requirement may express shared assumptions and values about what it means to be a member of

25 Margaret Fuller Corneille, Bar Admissions: New Opportunities to Enhance Professionalism, 52 S. C. L. REV. 609, 619 (2001). 26 Leslie C. Levin, Christine Zozula & Peter Siegelman,, LSAC Research Report, A Study of the Relationship between Bar Admissions Data and Subsequent Lawyer Discipline (forthcoming 2012).

6

7

the bar.27 These and other topics will be discussed when we explore whether it is possible to

predict “problem” lawyers.

27 Rhode, supra note 4, at 509. More generally, see Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996) (suggesting that law serves not only to deter or compensate, but to signal disapproval of disfavored conduct).