PR Chapter 1

What are factors used for Character & Fitness?

- Severity of past misconduct - Timing - Characteristics at time of misconduct - Characteristics at time of bar application

What are the most frequent areas of concern for admission purposes?

- past criminal record - untreated mental illness and/or substance abuse - lack of candor - financial irresponsibility

Problem 1-2 The Doctored Resume You are members of the law school Honor Board. You have been asked to hold a hearing in the case of Jan Kass, a third year law student. She has been charged with intentionally altering her resume (falsely stating her undergraduate degree was awarded "with honors"; misrepresenting her class rank and prior employment) and changing her law school transcript to improve her academic credentials. Now that you have reviewed the allegations, assume you are convening as the Honor Board. Jan admitted she falsified her resume and transcript. 1. What questions would you ask of Jan and how would you go about deciding what to recommend? 2. What sanction, if any, would you recommend (expulsion, suspension, informal warning, additional requirements)? 3. Should such conduct prevent her admission to the Bar? Does she demonstrate the requisite moral character and fitness to be admitted?

1. Find out the circumstances/reasoning for doctoring a resume 2. Suspension for a time or strict supervision + permanent record and notification to future employees 3. In her particular situation, I would just prevent admission for a number of years + rehabilitation

Characteristics at time of bar application

Also relevant are individual characteristics at the time of the bar application (e.g. candor and remorse)

Characteristics at time of misconduct

Consideration given as to individual characteristics at the time of the misconduct (e.g. age and maturity)

What is a universal requirement for admission to the bar?

Good moral character

Problem 1-1 Adderall You are a law student preparing to apply for admission to the bar. You just read the application. Question 41 asks: "Are you currently, or have you been in the last three years, engaged in the illegal use of drugs? If yes, give complete details . . ." "Currently" does not mean on the day of, or even the weeks or months preceding the completion of this application. Rather, it means recently enough so that the condition or impairment may have an ongoing impact. During law school you used Adderall several times each year to help you study, most recently three weeks ago. You did not have a prescription; you obtained the pills from another student, who did have a prescription. You heard a rumor that if you tell the bar examiners, they will deny your admission. The use of Adderall, a controlled substance, by someone for whom it was not prescribed, is illegal in the state. a.Reveal that you used Adderall without a prescription. b.Answer in the negative, stating that you have not used Adderall. c.Invoke the 5th Amendment. d.Other (specify).

See Comment 2 of Rule 8.1 - the Fifth Amendment can apply Answer is A. - it is best to be completely candid, even if the response will be unfavorable to your position

Jane, an applicant for admission to the bar, had been fired from a temporary job in high school because she took money from the cash register without permission. However, she was never charged criminally. She does not want to disclose that she was terminated from this job in high school on her application for admission. •If the bar application in her state contains a question about past employment, does she have to disclose her complete employment history, including the one from which she was fired and the reason for her termination? •Could she be subject to discipline if she does not disclose her entire employment history?

See Rule 8.1 and Comment 1 Jane should disclose everything, because her situation will be much worse if she does not and then later the bar finds out. That incident was several years ago, and the bar will likely not hold it against her. However, if she withholds information, that is an active concealment and would like result in her not being admitted.

•Does the subject of racial, ethnic, and gender bias belong in an ethics course? •Are there ethical rules that regulate the subject of bias in the legal profession?

See Rule 8.4(g) (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules Also Comment 3 Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct.

What rule does Texas have in regard to discrimination?

Texas did not adopt the ABA model, however, there is a more narrow rule of the TDRPC 5.08 that somewhat addresses this issue. 5.08 A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

Who controls admission to the bar and discipline of lawyers for each state?

The highest court in each state

Prior to entering law school, an individual pled guilty to one felony count of possessing child pornography. As a result, was required to register as a sex offender for 20 years. Thereafter, applied to law school, disclosing his conviction on law school application. However, did not disclose his obligation to register as a sex offender initially but amended the application during 1L year. Did well in law school; attended Sex Addicts Anonymous regularly; completed a sex offender treatment program; and entered into a monitoring program with a Lawyer's Assistance Program in the state. A number of character references supported his application for admission to the bar and the law firm where he worked as a law clerk indicated it would hire him as a lawyer if he was admitted. Should he satisfy character & fitness inquiry and be admitted?

This was based on a real case, and the Kentucky Supreme Court said he should not be admitted.

Are judges held by the ABA rules of conduct in regard to discrimination and prejudice?

Yes, there is a ABA Model Code of Judicial Conduct and its Rule 2.3 has standards for a judge against prejudice and discrimination

Severity of past misconduct

the more serious the conduct, the more likely it will be that a showing must be made that the individual has been rehabilitated

Timing

timing of misconduct (more recent misconduct is likely to be given additional weight

What types of conduct would you consider relevant and requiring further inquiry when applying for admission to the bar?

§ unlawful conduct § academic misconduct § making false statements, including omissions § misconduct in employment § acts involving dishonesty, fraud, deceit or misrepresentation § abuse of legal process § neglect of financial responsibilities § violation of a court order § evidence of mental/emotional instability § evidence of drug/alcohol dependency § denial of admission by another jurisdiction § prior disciplinary action by a professional organization (either as a lawyer or otherwise)

What are the three general categories for admission to practice law?

▪ Graduation from accredited law school ▪ Passage of bar exam ▪ Character and fitness inquiry