Whether To Ask Question 26

It’s been there for as long as anyone can remember and it’s about as intrusive as it gets. But is it right? Is it lawful? Is it useful? It’s Question 26 of the New York Bar Exam.

Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?  Traffic violations that occurred more than ten years before the filing of this application need not be reported, except alcohol or drug-related traffic violations, which must be reported in all cases, irrespective of when they occurred.  Do not report parking violations.

Let’s get a few basics out of the way. First, no one has a right to be a lawyer, so choosing to seek membership in the bar is a voluntary choice by the applicant, and thus reflects the applicant’s acquiescence to whatever requirements the bar imposes. Second, the bar exam is still state licensure, and unlike a private actor, the state is still constrained by the law. Even if applicants consent, it doesn’t make it lawful for the state to ask.

The purpose of the question is for Character & Fitness to determine whether you are a person of sufficiently good moral character to be a lawyer. STOP LAUGHING. While it may not be a foolproof method of making the distinction, it’s not entirely crazy either. Would it not be worthy of consideration that a person seeking to be a lawyer puts his or her personal or financial self-interest ahead of others?

If you’ve been the victim of a bad lawyer, whether by dishonesty, neglect or incompetence, and there were indicia that the person was not trustworthy before being admitted to the bar, wouldn’t you expect C&F to do better, to protect you from bad lawyers?

But as Question 26 says, it’s not merely convictions for serious offenses that must be disclosed, but everything short of a parking ticket, even if it didn’t result in conviction or even prosecution. What about “presumption of innocence,” you ask? What about sealed or expunged cases? What about juve/YO cases? These are all matters that would never be considered in almost any other circumstance, but here disclosure of matters never to be disclosed are mandated and fairly considered.

Executive Law § 296(16) states that, in connection with licensing, it is an “unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about” or take adverse action on the basis of any adult arrest or criminal accusation that was resolved in one of five ways: a termination in the applicant’s favor under section 160.50 of the Criminal Procedure Law (“CPL”); a criminal case adjourned in contemplation of dismissal under CPL §§ 170.55, 170.56, 210.46, 210.47, or 215.10; a noncriminal conviction sealed under CPL § 160.55; a criminal conviction sealed under CPL §§ 160.58 or 160.59; or a youthful offender adjudication under CPL § 720.35.  The lone licensing activity expressly exempted from this provision is the regulation of deadly weapons.

This comes atop Family Court Act § 380.1(3) protecting juvenile delinquency arrests. And there is overwhelming reason to be concerned with the discriminatory impact of Question 26, since its extremely hard if not impossible for a black male to make it to maturity without getting tossed by a cop a few times while walking to school.

That Question 6 is asked does not mean that a positive response precludes approval by C&F. Indeed, many of us have a moment or two in our past that doesn’t reflect our best judgment, and so we’re asked about it at our interview and explain that we’ve grown up since then and recognize the error(s) of our wayward youth. The surest way not to make it past C&F is to conceal something that should have been divulged, but having a prior isn’t the kiss of death. Then again, if it isn’t, and it shouldn’t be, why is it asked?

The short answer is that it’s left to the sound discretion of the committee to determine whether past transgressions are sufficiently bad and reflect character that makes bar membership untenable. Except how does one know? How can one tell? It’s not that it’s untrue that some lawyers lack the character to be entrusted with other people’s lives and fortunes, but that this is so subjective and fraught with bias and error as to grossly unfair to the applicant.

Heck, if past murderers and bank robbers can be admitted and make great lawyers, who can’t be trusted? Is it crimes of moral turpitude, or the crimes we hate most today as opposed to the crimes we hated yesterday? Or do we recognize that cops disproportionately police and arrest people in black neighborhood such that an arrest of a black applicant is significantly less concerning than an arrest of a white applicant?

To be fair, we want to protect the public from bad lawyers, or to be more specific, disreputable people who want to become lawyers but will not honor their ethical duty to their client. We just don’t have a magic way to figure out who that bad lawyer is. Much as we want to be fair (or at least appear to be fair) to applicants, their concerns are secondary to the concerns for the welfare of clients.

But still, our most principled interest in protecting clients from lawyers does not give rise to breaking the law by asking questions of applicants that the state may not ask, even if it may reveal information that’s highly relevant to the inquiry, such as the ten times an applicant beat his or her significant other who later refused to cooperation and so the case was dismissed. Something has to give, but what that may be depends on where the line gets drawn.