Saturday, April 21, 2007
It is certainly true that conduct that would not get lawyers in serious trouble can create a real barrier to admission if committed by an applicant seeking bar admission. I have previously mentioned a Nebraska case from a few years back where an applicant was denied admission for having an obnoxious and "turbulent" personality. He had been admitted for a number of years in a number of states without ever being subject to discipline (including Nebraska, where he had let his membership lapse). The case is In re Appeal of Lane, 544 N.W.2d 367 (Neb. 1996). Few lawyers get in more trouble than an occasional contempt for such behavior, and then only when in the presence of a judge.
For better or worse, admission to practice as a gateway issue is considered in a fundamentally distinct way from sanctioning members of the club. It is worth noting that there are 50 states and each approaches admission in its own way. Some may be more willing to entertain the notion of a foolish mistake than others. Some may be more influenced by the politics of the situation than others. It is hard to predict the admission response to conduct that has not resulted in a criminal conviction, particularly if it appears an isolated instance and the applicant is appropriately remorseful (that would be, in my view, a non-negotiable prerequisite for admission).
I was involved in a case against a government attorney who was convicted of espionage. The issue was whether the crime involved moral turpitude per se, which is considered with reference to the statutory elements rather than the facts of the case. Because the conviction could have involved help to a friend rather than an enemy of the United States, Bar Counsel argued that she was entitled to a hearing (where disbarment would have been a forgone conclusion). However, a majority of the Board and a division of the Court found that summary disbarment was required. When a lawyer acts in a way that threatens public safety, the result is likely to be summary and harsh.
I found the linked case presented one of the most interesting issues I faced at Bar Counsel. To me, the moral turpitude per se issue involved a difficult question of moral relativism. Spying is morally repugnant if in the cause of your enemy. A spy for the U.S. may be considered a hero rather than a villian (as a Washington Senators fan, Moe Berg comes to mind). However, giving any process to one who spied against our country was not on the agenda of the D. C. disciplinary system.
Another historical note in the area of admission/disbarment/fitness to practice is the case of A. H. Garland of Arkansas. Garland was a prominent attorney who supported the South in the Civil War. After the war, and a Presidential pardon, the Supreme Court in a 5-4 decision held that he was qualified to practice law notwithstanding his acts of rebellion against the union and an oath requirement (that he had not been a traitor) to which he could not truthfully subscribe. The court majority held the oath requirement an unconstitutional bill of attainder and ex post facto law. The dissent of Mr. Justice Miller helps place the case in its historical context and remains a great read on the subject of fitness to practice. Garland went on to become Attorney General of the United States. (Mike Frisch)