April 11, 2007
Character Screening for Fitness to Practice Law and the Playboy "Controversy"
Posted by Alan Childress
Over at Discourse.net, Miami's Michael Froomkin asks, "Does Posing Naked for Playboy TV Have Anything to Do With Your Fitness to Practice Law?" In a word, No, says he. Despite all the hype and hypothetical questions about the effect on bar admission, particularly at WSJ Law Blog, of one Brooklyn Law Student's posing, Froomkin has it right that protected First Amendment activity cannot be the basis for denying bar admission.*
Most of the WSJ comments (61!) also say it's about judgment and being taking seriously, not the NY bar screening process. [Though one nicely asks the real question buzzing around law faculties these days: "Did she use a laptop in her law school classes and was it online?"]
Even more insightful is Froomkin's ending: "...well, really, who in the end cares?"
Correction: The photo left is of Froomkin, not the Brooklyn Law Student. LPB apologizes for the error and any initial confusion.
Froomkin has an even better post (admittedly unrelated to this blog), quoting a 1797 U.S. treaty with Tripoli and Barbary promising not to use religion as "pretext." A unanimous Senate approved it, and this part, all read aloud:
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
*But cf. Brad Wendel's excellent post (and comments) on Matthew Hale and bar prediction of unethical acts, linked here, e.g., for racist and sexist rants (now arising because of "anonymous" xoxohth posts). I still think the Playboy TV example would be distinguished from prior cases of denial where there is a common thread Brad sees: "The bar committee was able to characterize speech as evidence of a propensity to violate the norms governing the legal profession."
UPDATE: More from Brad here, and he's tied it to the Playboy TV non-controversy: "[E]ven given these deficiencies in the [C&F] process, there's no way the applicant in the Playboy videos should have any difficulty with the character and fitness process." Still, he is right that Eugene Volokh and others overstate the First Amendment protection that state bar C&F committees (and courts) traditionally afford in matters more related to the practice of law, e.g., Hale, filing complaints, oaths of allegiance.
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The question of what evidence may establish unfitness for admission is a fascinating one-- take a look at Appeal of Lane, 248 Neb. 499, 544 N.W.2d 367: admission denied on findings that applicant exhibited behavior found "threatening, confrontational, obnoxious and paranoid"
Posted by: Mike Frisch | Apr 11, 2007 7:55:00 AM