-- AndrewMcCormick - 13 Nov 2009

This remains a work in progress, and is not quite finished draft. I'm considering this to be part one of the project, a general overview of my area of interest, and I plan to revise and add a section of more specific work this semester after spending more time on Hamlin and Chroust, and visiting the NY Historical Society

Contents

1. Character and Fitness: a ubiquitous, historically present standard. But a significant one?

2. Rise of Character as a Professional Credential for Lawyers:

3. The Uses of "Character and Fitness" as a Bar to Entry – Caselaw:

4. The Role of Education in Character and Fitness:

5. Character, Fitness, Race, and Gender. A very short comment.

6. Partially Integrated/Otherwise Interesting sources:

7. Sidebar of Related Projects:

8. Attachments:

This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect a(n) historical investigation of character and fitness as professional concepts would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and case law in order to (1) explore the history of character as a professional credential and (2) to search out historic applications of character and fitness standards.

A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding religion, political affiliation, and potentially homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin. However, it is likely thin for a reason.

Character and Fitness: a ubiquitous, historically present standard. But a significant one?

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.

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.)

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.

Rise of Character as a Professional Credential for Lawyers.

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.

In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, fascinatingly 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". The disdain for lawyers was not limited to legislatures, the public also held them in disdain. 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 suggested a 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 "bedbtor 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. (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, now a common profession for those in government, would threaten the Republic if allowed to serve in office. He also wrote entertaining 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 (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).

Character and fitness standards may have been a "showpiece", to borrow Rhode's term, designed to achieve two ends: (1) quell the dislike of lawyers by non-lawyer classes in early America, especially until lawyers became an accepted fixture of American professional culture and (2) to provide some semblance of retaining Britain's elite solicitor class by attempting to give American lawyers elevated personal status.

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.

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.

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".

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:

"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).

He also told a story out of California: “In California two “law students,” who had clerked in the same building, had applied for admission to the bar. One day a member of the Supreme Court of California called upon one of the students and announced that he had come to ascertain his professional qualifications. The whole examination consisted in the question: “Is the Legal Tender Act constitutional?” The student replied: "It is" Whereupon the judge observed: “I have just examined your friend in the other office and he says that the Act is unconstitutional, but we need lawyers who are able to answer great constitutional questions so quickly, right or wrong. Your are both admitted" (Chroust II, 38).

The end of 19th and beginning of 20th century saw formalization and stiffening of policies, but number of those denied entry for character reasons remained very small. In 1878 the ABA formed in New York, including formalizing rules for character, "Court of Appeals fixed requirements for preliminary education and proof of character" and required that "as a condition precedent to admission to the Bar, the character of each applicant will be subjected to a scrutiny which will be genuine and not perfunctory." (Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Before that time, there was no code of ethics and education remained informal. See generally, The ABA's Bar History page.

The Uses of "Character and Fitness" as a Bar to Entry: Caselaw.

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.

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.

In Re Application of Stewart - PDF? , 112 Ohio St. 3d 415, was a recent Ohio case to the point of my initial interest; there, the court affirmed the character and fitness board's decision that debt combined with sketchy disclosure was enough to deny admission to the bar. Looking to the facts, his debts were extraordinary, but it appears his behavior and attitude may have been the truer source of the bar's reluctance to admit the applicant.

Ex Parte Wall (with notes), 1077 U.S. 265 (1883) 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 a very serious crime and a symbolic attack on law's legitimacy.

The Role of Education in Character and Fitness

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.

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).

Character, Fitness, Race, and Gender. A very short comment.

As mentioned, I initially suspected that character and fitness standards could be used as a proxy for racial, religious, or gender values. This may have been short sighted, as until relatively late in American history women and minorities were flatly barred from entering the legal profession, rendering character and fitness a needless proxy, if it was one. With regard to religion, there are instances (see Rhode below) of denying entry for, among other qualms, not having defined thoughts on religion, but there religion was being used as a character and fitness standard, in full public light.

Partially Integrated/Otherwise Interesting sources

Gawalt. The Promise of Power: The Emergence of the Legal Profession in Mass. 1760-1840

Character Examination of Candidates, I B. Examiner (1932)

Douglas, The Pennsylvania System Governing Admission to the Bar, 54 Rep. A.B.A. (1929) (Rhode uses to demonstrate "unworthiness" standard)

Confronting Racists at the Bar: Matthew Hale, Moral Character, and Regulating the Marketplace. Jason O. Billy available here: RacistsattheBar

Lefler, Hugh Talmage. 1956. North Carolina History told by contemporaries. Chapel Hill: University of North Carolina Press.

Sidebar of Related Projects:

(1) The professionalization of legal practice and the varying element of public service in law

(2) Frontier American Lawyers and Legal Practice

(3) The rise of the law firm in America

(4) Distrust and Animosity toward lawyers in early America (and perhaps related topics in Quaker tradition)

(5) Women in the American Legal Profession

(6) Minorities in the American Legal Profession

(7) The Private Debt and the Legal Profession as an Historical Phenomenon (Shays Rebellion; New York rent riots would be a starting point - look to Chroust vol. II at 13 for beginnings)

• 16_YLJ_514_1-21-10_1403.pdf: Smith, 16_YLJ_514

• Export.pdf: American Legal History. Hall, Wiecek, Finkelman. Oxford Univ. Press, 1006.

Legal Ethics, Fifth Ed. Rhode, Luban. Foundation Press, 2009, including reproductions of (1) Alexis de Tocqueville "on Lawyers and Judges" 1835, (2) P. W. GRAYSON [peeud.] "Vice Unmasked, an Essay: Being a Consideration of the Influence of Law upon the Moral Essence of Man ..."1830, (3) Alexis De 'I'ocqueville, Democracy in America Vol. I, 283-90 (H. Reeve trans., P. Bradley ed., F. Bowen rev., 1973) Ost ed. 1835).

NOTE: I have the following fully scanned and ready to upload, but the files are too large right now: (1) Rise of the Legal Profession in America (Volume 2), Chroust, University of Okla. 1965. (2) Legal Education in Colonial New York, P.M. Hamlin