Archive for the tpoic: ‘character and fitness’

Character and Fitness Concerns? A Shattering Experience

Friday, September 14th, 2007

In our last post, we touched on the meaning of the term “legal ethics”. This time we will look at the prequel — that is, what types of issues can arise that will prevent an otherwise qualified applicant from becoming a lawyer, and thus being subject to the requirements of “legal ethics.”

Four or more years of college tuition, room, board and books, followed by three or more years of the same for law school leaves many students drained financially, mentally, and emotionally. It must be quite shattering to then learn that the Board of Bar Examiners either will not permit them to take the bar exam, or will not license them because of alleged character or fitness defects.

At or about the time most applicants enter law school they fill out an application that is submitted to the Board of Law Examiners. This application starts the process of review by the Board who assesses the character and fitness of the candidate to practice law. An applicant is required to possess good moral character. Nevertheless, there is an inherent difficulty in assessing “good moral character” to practice law. “Good moral character,” standing alone, can be “easily adapted to fit personal views and predilections, [and] can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.” Konigsberg v. State Bar, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1967). At best, what the Board does is look at past conduct of the applicant and makes a prediction about how the applicant will behave in the future.

The Board of Law Examiners is not without guidance in evaluating “good moral character.” TEXAS GOV’T CODE ANN. Section 82.028(c) authorizes the Board to conduct investigations, but expressly circumscribes the power of the Board in making this determination such that:

  • The board may not recommend denial of a license and the supreme court may not deny a license to an applicant because of a deficiency in the applicant’s moral character or fitness unless:
    • the board finds a clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client or obstruct the administration of justice if the applicant were licensed to practice law…. (emphasis added).

The purpose of requiring a candidate to have good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients or will result in obstruction of the administration of justice, or in a violation of the Texas Disciplinary Rules of Professional conduct. Tex. R. Gov. Bar Adm’n. IV(b).

The assessment of character and fitness looks at issues such as debt, chemical dependency, criminal records and dishonesty, among other things. The Board is to determine whether those acts show that an applicant has a negative character trait that is likely to cause the applicant to injure a client or violate the disciplinary rules. Such a character trait “usually involve[s] either dishonesty or lack of trustworthiness in carrying out responsibilities,” but “other character traits [may be] relevant.” RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b). There must additionally be “substantial evidence” of a “clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client [or violate the DISCIPLINARY RULES] if the applicant were licensed to practice law …” TEX.GOV’T CODE Section 82.028(c); RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b), XV(i)(5) (1992). The most salient character traits involve either dishonesty or lack of trustworthiness in carrying out responsibilities. RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b) (1992).

Assuming an adverse decision is made against a candidate by the Board of Bar Examiners, it that the end of the line? The short answer is probably not, but each situation is different and requires careful studied analysis. There have been instances when the Board’s decision has been wrong, and a court has overturned the decision of the Board.

For instance, in Board of Law Examiners v. Alritt, 2001 WL 838378 (Tex. App. — Austin, 2001) Arlitt had passed the Bar examination, but was not licensed because the Board found that Alritt had negative character attributes of dishonesty and lack of respect for the judicial process. The Board found that Alritt had filed contradictory statements under oath, failed to disclose involvement in an adversary proceeding in bankruptcy court and had been personally sanctioned twice. The district court found that the contradictory statements, made about her homestead and in the bankruptcy court, were not supported by substantial evidence. The two sanctions against Arlitt were for going to the court ex parte without giving notice to the other side and getting a bond released to her. The court found that because she was not yet licensed and “had not yet practiced law, was aware her ex parte conduct was improper,” but did not indicate a lack of respect for the judicial process, just ignorance. The court accordingly reversed the decision of the Board.

Similarly, in Board of Law Examiners v. Coulson, 48 S.W.3d 841 (Tex. App. — Austin, 2001) an applicant successfully challenged an adverse decision by the Board. In Coulson, the candidate disclosed in his application that he had undergone treatment for alcohol and substance abuse almost twenty years before. Upon receiving his probationary license, Coulson was told he would have to be evaluated by a social worker and a Board evaluator, and see a Master Addiction Counselor. Despite testimony by both counselors that Coulson did not suffer from chemical dependency, and similar testimony from his father, wife, employer and former classmate, the Board determined that “there was a clear and rational connection between the Applicant’s possible chemical dependency,… and the likelihood that he might fail to discharge properly his duties to a client, a court or the legal profession. In overturning the Board’s decision, the district court found that Section 82.038 of the Tex. Gov. Code required there to be a present chemical dependency before imposing a probationary license. The court of appeals agreed and found that there was insufficient evidence to find a present chemical dependency. The court of appeals reemphasized an earlier decision it had issued disapproving of the use of attendance at Alcoholics Anonymous (“AA”) to support a finding of present chemical dependency. The Court of Appeals pointed out that it would be hard to imagine how anyone could overcome the stigma of chemical dependency if the Board was allowed to use participation in AA meetings against a person who was still in recovery.

The unpaid debts of an applicant have also been used as a basis by the Board to deny the applicant a law license. Although the Board may not use blanket rules barring from practice all applicants, who possess indicia of “financial irresponsibility,” failure to pay debts when due can be a basis to deny a candidate a law license. For instance, Board of Law Examiners v. Stevens, 868 S.W. 2d 773 (Tex. 1994) a candidate who had not paid taxes for 14 years and who had several unpaid judgments for unpaid debts, but who was licensed in Louisiana sought to obtain a Texas law license. The Texas Supreme Court pointed out that a fourteen-year failure to pay taxes and the failure to satisfy three overdue judgment debts constituted substantial evidence that the candidate had a demonstrated longstanding lack of financial responsibility. This was substantial evidence that the candidate suffered from a persistent inability to discharge, or unreliability in carrying out, significant obligations under the Texas Disciplinary Rules of Professional Conduct. The applicant was not permitted to obtain a Texas law license.

So what is the moral to the story of the character and fitness issue? An applicant who wants to become a lawyer must expect to be held up to the standards established by the Disciplinary Rules. The Board of Bar Examiners will make a prediction of whether the applicant is likely, in the present future, to violate the Disciplinary Rules or injure a client. The Board’s determination can be challenged, but if there is substantial evidence that supports the Board’s determination, then the Board’s determination is likely to be sustained. On the other hand, if the Board’s determination more closely resembles a blanket prohibition or lacks a rational foundation, then the Board’s determination may be overturned and the applicant may become a lawyer. Similar to our last post, which asked the question: what is legal ethics, here the heart of the issue turns on what do the Disciplinary Rules require. In our next post, we will begin the march through an examination of what the Disciplinary Rules require.