Thursday, September 13, 2007

Should Online Aliases Be Submitted As Part of the Bar Admission Process?

Posted by Jeff Lipshaw

That's the suggestion of Michelle Morris, Lecturer in Law and Research Librarian at the University of Virginia Law School in a piece over at the Yale Law Journal Pocket Part in a reaction to "L'affaire Trustafarian" involving Boalt and Hastings after the Virginia Tech tragedy.

Alan and I both expressed views similar to those of Michelle back when the issue was hot - law students need to understand that they become lawyers, and are held to the standard of lawyers when they get to law school, not just when they graduate.  The question back then was whether the Boalt student at the center of the controversy would be obliged to disclose the contretemps in his or her bar application.  Michelle goes two steps further by suggesting not only the bar application but the law school application require the disclosure of any screen names or aliases used by the applicant.

I'm not sure how I feel about the suggestion.  Requiring disclosure of online activity while one was a law student, at least after having been given the kind of warning some schools are now giving (I believe including here at Suffolk), does not seem too draconian to me.  But I'm not sure it's fair to go back to what one did as an eighteen year old, and in any event, do the costs outweigh the benefits of that?

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I am also unsure about the right answer. Clearly, a truthful response disclosing screen names can lead to information that will legitimately merit close scrutiny by admitting authorities. I wonder how difficult it may be to uncover false responses. I also think that youthful immaturity (which we all had/have to some degree) should not ruin the opportunity to evolve into a mature professional. Remember that most bars will admit convicted felons on a showing of substantial rehabilitation.

Posted by: Mike Frisch | Sep 13, 2007 9:05:05 AM

Would your proposal include the applicants posting history at DailyKos, ACS blog, Huffington, and National Laywers Guild listservs?

Posted by: me | Sep 13, 2007 9:24:17 AM

The last time I checked, the First Amendment protected anonymous speech. Perhaps our legal academics here need a refresher course in constitutional law.

Posted by: Mark | Sep 13, 2007 6:11:25 PM

This last comment reflects, of course, what Alan and I were pointing out the last time around.

First, it's not MY proposal. Second, while there may be all sorts of First Amendment protections around anonymous speech, there is no First Amendment right (or any other constitutional right) to be licensed by the state as a lawyer, anymore than the Fourth Amendment guarantees you a right to board an airplane, or enter the Supreme Court chambers, without being searched (perhaps our anonymous posters need a refresher course in the Legal Profession). So whether or not there is an affirmative obligation to reveal your identity, one of the risks you take by yapping anonymously (subject to metadata, of course) is that you aren't really anonymous, and when something you thought you said anonymously that reflects on your ability to pass muster under the moral character requirements of the bar admission process turns out not to be anonymous, you have just encountered a real-world consequence of exercising a right. Sorry to burst the bubble.

Posted by: Jeff Lipshaw | Sep 14, 2007 6:55:38 AM

Inquiry that penalizes the exercise of First Amendment rights by preventing those exercising them from practicing law is certainly constitutionally prohibited. (See _Baird v. State Bar Arizona_ (1971) 401 U.S. 1, 8 [[W]e hold that views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law.])The balancing tests applied to the Fourth Amendment matters do not mean that the search scenarios fall outside the Constitution. They show only that no right is absolute. You would be hard pressed to show a compelling state interest in the anonymous and legal postings of law students.

Posted by: Stephen R. Diamond | Oct 30, 2007 4:02:20 PM

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