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-- AndrewMcCormick - 13 Nov 2009 | | | Character and Fitness: a ubiquitous, historically present standard. But a significant one? | |
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< | Every state bar currently requires some form of character and fitness examination, as do most other countries (Rhode citing The Bar Examiner’s Handbook, S. Duhl 2d ed. 1980 - apparently unavailable online, in need of scanning). For most law students, this means little more than checking that parking tickets are paid; for a smaller number, serious matters prohibit admission to the bar. Typically, issues of fraud and non-disclosure of lesser offenses. Historically, character has been relevant, but the formality and process of assessment, as well as its rigor, has varied. | >
> | Every state bar currently requires some form of character and fitness examination, as do most other countries (Rhode citing The Bar Examiner’s Handbook, S. Duhl 2d ed. 1980.) For most law students, this means little more than checking that parking tickets are paid; for a smaller number, serious matters prohibit admission to the bar. Typically, issues of fraud and non-disclosure of lesser offenses. Historically, character has been relevant, but the formality and process of assessment, as well as its rigor, has varied. | | | Rhode argues that throughout its history and into the present day character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, Legal Ethics, 490-491. See attachment below). Despite her characterization of C&F standards as "showpieces", she argues that "within the American Bar moral character requirements have been a fixed star in an otherwise unsettled regulatory universe... virtue remained a constant prerequisite, in form if not in fact," and "during the course of the study [it became apparent that] bar examiners rarely exclude candidates on grounds of character, and generally report encountering few cases of serious misconduct" (Rhode, Moral Character as a Professional Credential, MoralCharacterCredential, 491.) | |
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< | A cursory look at secondary sources indicates the first litigation over character and fitness standards was during the McCarthy? era, theoretically supporting Rhode's thesis of character as a non-effectual standard. However, historically bar admission proceedings suggest early practices were personal, informal, and less likely to be litigated. Additionally, the screening future lawyers for character issues may take place earlier than bar exams; for example, at the time of gaining an apprenticeship, or upon applying for law school. | >
> | A cursory look at secondary sources indicates the first litigation over character and fitness standards was during the McCarthy era, theoretically supporting Rhode's thesis of character as a non-effectual standard. However, historically bar admission proceedings suggest early practices were personal, informal, and less likely to be litigated. Additionally, screening for character issues may take place earlier than bar exams; for example, at the time of gaining an apprenticeship, or upon applying for law school. | | | Rise of Character as a Professional Credential for Lawyers. | |
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< | The English system suggests informal character selection. In Britain Solicitors received training and eduction by apprenticeship, usually in their teens. One can hardly imagine a solicitor not considering character in selecting a student to work in his office for two gears. The Inns of Court, which provided barristers with accreditation, required presence at meals and casual debates over a number of days in the year; again, one can hardly imagine the Inns not basing admission on partially on character, and law was a respected profession. The British program did not fully transplant itself across the Atlantic, and neither did accompanying respect for law as a profession. For more information on the early legal education in America, which was apprenticeship, and the development of law departments in colleges and eventually law schools, see Hamlin, attached in full below. | >
> | The English system suggests informal character selection. In Britain Solicitors received training and eduction by apprenticeship, usually in their teens. One can hardly imagine a solicitor not considering character in selecting a student to work in his office for two years. The Inns of Court, which provided barristers with accreditation, required presence at meals and casual debates over a number of days in the year; again, one can hardly imagine the Inns not basing admission on partially on character, and law was a respected profession. The British program did not fully transplant itself across the Atlantic, and neither did accompanying respect for law as a profession. For more information on the early legal apprentice education in America, and subsequent development of law departments in colleges and eventually law schools, see Hamlin, attached in full below. | | | | |
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< | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, interestingly prohibited legal representatives from taking fees in section 26. Similarly, the 1669 Fundamental Constitutions of the Carolinas' article 70 proclaims practicing law for money as "base and vile". Disdain for lawyers was not limited to legislatures, the public held them in disdain as well. J. McMaster, A History of the People of The United States: From the Revolution to the Civil War (1927) "With the merchants, in the condemnation of the multitude, were joined the lawyers. Indeed, of the two classes, the members of the bar were the more hated and despised. The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern... They were denounced as banditti, as blood-suckers, as pick-pockets, as wind-bags, as smooth-tongued rogues." Chroust suggests that American's dislike for all things English and haphazard nature of the unformed law contributed to this antipathy (Chroust I, p5). However, a more persuasive argument is economic: lawyers were "the lawyer was most unpopular, not to say despised, in the "debtor areas," while in the "creditor areas" he was... at least welcomed" (Chroust II, 14). It is easy to imagine the reputation of lawyers tracks debtors rights, and before tenants' and debtors' rights developed lawyers would be unpopular.. (as an aside, an interesting side project would be investigating early letters and publications targeting lawyers - if anyone's interested, beginning with Benjamin Austin's letters signed "Honestus" might be a starting point. I find it especially interesting the he argued that lawyers would threaten the Republic if allowed to serve in public office. He also wrote entertaining, rambling anti-lawyer poetry. if interested see Chroust I, FN53, Vermont Gazette Feb. 28 1786, et al.) | >
> | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, interestingly prohibited legal representatives from taking fees in section 26. Similarly, the 1669 Fundamental Constitutions of the Carolinas' article 70 proclaims practicing law for money as "base and vile". Disdain for lawyers was not limited to legislatures, the public held them in disdain as well. J. McMaster, A History of the People of The United States: From the Revolution to the Civil War (1927) "With the merchants, in the condemnation of the multitude, were joined the lawyers. Indeed, of the two classes, the members of the bar were the more hated and despised. The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern... They were denounced as banditti, as blood-suckers, as pick-pockets, as wind-bags, as smooth-tongued rogues." In "The Rise of the Legal Profession in America" Chroust suggests that American's dislike for all things English and haphazard nature of the unformed law contributed to this antipathy (Chroust I, 5, attached below). However, a more persuasive argument is economic: lawyers were "the lawyer was most unpopular, not to say despised, in the "debtor areas," while in the "creditor areas" he was... at least welcomed" (Chroust II, 14). It is easy to imagine the reputation of lawyers tracks debtors rights, and before tenants' and debtors' rights developed lawyers would be unpopular.. (as an aside, an interesting side project would be investigating early letters and publications targeting lawyers - if anyone's interested, beginning with Benjamin Austin's letters signed "Honestus" might be a starting point. I find it especially interesting the he argued that lawyers would threaten the Republic if allowed to serve in public office. He also wrote entertaining, rambling anti-lawyer poetry. If interested see Chroust I, FN53, Vermont Gazette Feb. 28 1786, et al). | | | In late 18th century New York, lawyers were not banned but were required to take an oath and provide evidence of their commitment to the United States, and those previously licensed to practice had to make a showing to a jury that they had "conducted himself as a good and zealous friend to the American cause", introducing patriotism as a professional credential, or a facet of the character credential (Chroust II, p7, quoting Laws of the State of New York Passed at the Sessions of the Legislature 155-157). This proved to be a substantial burden, and reduced the New York Supreme Court bar to nine members (although it is unclear how much larger a group these nine were selected from) (Chroust II, p10). | | | Friedman argues that "As soon as... society posed problems for which lawyers had an answer..., layers began to thrive, despite the hostility.", . As the profession grew, one might hypothesize that established lawyers would use character and fitness standards to limit entry to the profession for economic reasons. Alternatively, lawyers may have had class-based motivations; between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman), and elite class may have developed character standards as barriers for entry. However, Rhode's empirical research suggests that if were this a motivation, it was an ineffective ploy. | |
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< | A law review article on Hamlin's Legal Education in Colonial New York, New York University Law Quarterly Review 1939, discussed character of lawyers and men of government critically, and commenting on the unprofessional legal system in early America. On the other hand, Alexis de Tocqueville, on Lawyers and Judges, attached a certain importance and conservatism to American lawyers. Interestingly, de Tocqueville observes that "they entertain the same repugnance of the actions of the multitude [as the aristocracy]", suggesting that, despite Hamlin's comments that the legal profession in America was, compared to that of Britian, base and common, America's legal community harbored elitism. | >
> | A law review article on Hamlin's Legal Education in Colonial New York, New York University Law Quarterly Review 1939, discusses character of lawyers and men of government critically, and comments on the unprofessional legal system in early America. On the other hand, Alexis de Tocqueville, on Lawyers and Judges attached a certain importance and conservatism to American lawyers. Interestingly, de Tocqueville observes that "they entertain the same repugnance of the actions of the multitude [as the aristocracy]", suggesting that, despite Hamlin's comments that the legal profession in America was, compared to that of Britian, base and common, America's legal community harbored elitism. | | | George Sharswood, in An Essay on Professional Ethics, 1884, demonstrates the shift from wishing to eliminate the legal profession to a desire to hold it to a high standard, "the things we hold dearest on earth... we confide to the integrity of our legal counsellors[sic] and advocates. Their character must be not only without a stain, but without suspicion." Lawyers became an established fixture of American commerce, and character and fitness standards were present if unused.
During 18th and 19th centuries, bar examinations were orally administered before a judge, and according The Troubling Rise of the Legal Profession's Good Moral Character "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." Obviously, this invites questions regarding "reported instances". | |
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< | Several instances in a 1907 Yale Law Journal article suggest that bar admissions criteria were severely lax, and one might suppose the ease of entry would extend to character standards. In Kentucky, a candidate who was unable to supply any correct answers to legal questions was admitted on the theory that no one would employ him "anyhow." (Rhode in FN20, quoting Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Chroust thought that same instance, along with one other from the same state and a story from California, demonstrated how "deplorably lax, in the main" bar examinations could be saying: | >
> | Several instances in a 1907 Yale Law Journal article suggest that bar admissions criteria were severely lax, and one might suppose the ease of entry would extend to character standards. In Kentucky, a candidate who was unable to supply any correct answers to legal questions was admitted on the theory that no one would employ him "anyhow" (Rhode in FN20, quoting Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Chroust thought that same instance, along with one other from the same state and a story from California, demonstrated how "deplorably lax, in the main" bar examinations were, noting that: | | |
"In Kentucky a candidate was unable to give one single correct answer. Nevertheless, he was admitted on the ground stated officially by the Court which acted as an examining board that "no one would employ him anyhow." The question of character fitness of another candidate was duly met by the statement of the court that he "had never fought a duel with deadly weapons either in the state or without the state with a citizen of the state [of Kentucky]" (Chroust II, 38). | | | The Uses of "Character and Fitness" as a Bar to Entry: Caselaw. | |
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< | Despite their small number, the cases present cases offer points of interest. The character standard, as taught in modern law school, is that issues of fraud are serious, as are financial crimes or crimes that would be easily committed in the course of legal practice. Other crimes less relevant to legal practice (e.g., assault) are less serious, but dishonesty and non-disclosure regarding even minor crimes are very serious. | >
> | Despite their small number, the cases available offer points of interest. For the non-lawyer it may be useful to know that the character standard, as taught in law school today, is that issues of fraud are serious, as are financial crimes or crimes that would be easily committed in the course of legal practice. Other crimes less relevant to legal practice (e.g., assault) are less serious, but dishonesty and non-disclosure regarding even minor crimes are very serious. | | | Schware v. Board, 353 U.S. 232 involved a New Mexico man's denied entry to the bar on account of failing to show "good moral character." Among other minor crimes, his eight year membership in the communist party, from 1932-1940, was the major concern. The Court established in an 8-0 opinion that character and fitness requirements must comport with the Due Process Clause, and that party membership did not show bad character, especially over a decade later. | | | An 1883 case, Ex Parte Wall, 1077 U.S. 265, discusses a striking case involving a white Florida man who participated - although to what degree is unclear - in removing a black suspect from a jail cell and lynching him in front of a courthouse. The lynch mob participant challenged his bar rejection on character and fitness grounds and prevailed, despite involvement in a serious crime and a symbolic attack on law's legitimacy. | |
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< | | | | The Role of Education in Character and Fitness | |
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< | As discussed above, early lawyers used apprenticeship which we can assume was a filtering device. Hamlin's work (attached at bottom) includes discussion of apprenticeship as well as photographs of hand-written documents contracting apprenticeship. In very early colonial America many attorneys were English trained, and Hamlin extensively outlines the substantial cost of such education. In western states, for a time, "the aversion to the lawyer went so far that almost anyone but a trained lawyer was regarded as a fit person to sit on the bench", and individual study was generally the path to becoming a lawyer and, as the bar examinations were cursory, education's role in determining character and fitness was nonexistent during that period. | >
> | As discussed above, early lawyers used apprenticeship which we may assume was a filtering device. Hamlin's work (attached below) includes discussion of apprenticeship as well as photographs of hand-written documents contracting apprenticeship. In very early colonial America many attorneys were English trained, and Hamlin extensively outlines the substantial cost of such education. As such, in many parts of the country formally trained lawyers were unavailable, but due to lawyers' reputation as a class, this may not have mattered. In western states, for a time, "the aversion to the lawyer went so far that almost anyone but a trained lawyer was regarded as a fit person to sit on the bench". For lawyers in these areas, individual study was generally the path to becoming a lawyer and, as the bar examinations were cursory, education's role in determining character and fitness was nonexistent during that period. | | | | |
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< | After the 19th century, law schools may have been responsible for legal ethics. Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237). This would suggest an interesting and difficult historical project - discovering what the historical standards were for character assessment by law schools during the early and middle 20th century. It is not difficult to imagine that early law schools' admissions practices would serve similar functions of attorneys taking on apprentices, or Inns of Court in their admissions. (if curious, Rhode has surveyed present standards here). | >
> | After the 19th century, law schools may have been responsible for legal ethics. Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237). This would suggest an interesting and difficult historical project - discovering what the historical standards were for character assessment by law schools during the early and middle 20th century. It is not difficult to imagine that early law schools' admissions practices would serve similar functions of attorneys taking on apprentices, or Inns of Court in their admissions. If a reader is curious, Rhode has surveyed present standards here. | | |
Character, Fitness, Race, and Gender. A very short comment. | | | The New York Historical Society | |
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< | I spent a day at the New York Historical Society, digging through manuscripts with a view to finding information on early legal education in New York and related character matters. Unfortunately, they will not allow me to use their book scanner, so I have included bibliographic notes, some (non-comprehensive) summary, and interesting quotations for three documents. | >
> | I spent a day at the New York Historical Society, digging through manuscripts hoping to find information on early legal education in New York and related character matters. Unfortunately, they will not allow me to use their book scanner, so I have included bibliographic notes, some (non-comprehensive) summary, and interesting quotations for three documents instead of the digital copies I would have liked. | | | | |
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< | I might add that for those interested, the Historical Society’s museum library is easy to use, convenient to get to, and free. One can go from a general topic idea to reading original documents very quickly. | >
> | I might add that for those interested, the Historical Society’s museum library is easy to use, convenient to get to, and free. One can go from a general topic idea to reading original documents very quickly. Also, they have a nice exibit on John Brown, which I thought might be especially interesting to law students. | | | Methods of legal education in the state of New York : a paper read before the State Bar Association at its annual meeting held at Albany, N.Y., January 17, 1899
• Author/Creator: Clarence D. Ashley (Clarence Degrand), 1851-1916. |
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