Tuesday, October 23, 2007

A[nother] 3L Candidate to the Bar Asks Your Advice About a C&F Matter--Underage Fake ID Conviction

Posted by Alan Childress

Last week we posted a bar candidate's query re his/her character & fitness options for a second DUI.  Readers' responses were welcomed and, I'd say, quite helpful.  That may have spawned this email to me asking similar help (edited slightly):

I am going to take the MPRE in November, and it got me thinking about the bar exam and how
to prepare elements for our application in advance. I had a question
about the effect of a criminal charge.  Before I was 21, I was arrested
for using a fake ID.  I did the required community service which
entitles me to expunge the charge from my record (which I have yet to do
but do plan on). I know that I must disclose this information, but I was
wondering if it would seriously affect my chances of being admitted to
the bar?  I know that charges of fraud affect one's moral turpitude so I
was wondering if you think this will severely harm me in the future. Thank you for your time and help.

So, please weigh in, readers (and Mike and Jeff, of course).  Does your answer depend on what state where the student plans to take the exam?  One thing I do know:  the person should seek the expungement ASAP.

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Comments

The answer re disclosure depends on the state and whether the expungement process is completed prior to the filling out of the application. New York and the form used by the National Conference of Bar Examiners specifically provide that expunged convictions must be disclosed. Others specifically say it need not.

Rule 8.1 requires that answers in bar admission applications must be truthful and must disclose any fact necessary to correct any misapprehension caused by a technically truthful answer.

My sense is that full disclosure and acceptance of responsibility would keep this from being a major impediment to admission. Some jurisdictions are more forgiving than others. The inquirer can contact me to discuss the tactics of admission if he/she wishes.

Posted by: Mike Frisch | Oct 23, 2007 11:46:16 AM

Kindly provide the exact question that concerns you.

I wouldn't make any assumptions ("I know I have to disclose.......)

Full disclosure may well be the best choice, but it would seem prudent for a lawyer-to-be to think things through and come to a conclusion about whether disclosure is required.

If you participated in a program for first time offenders that permits one, upon completion of community service and a period of no arrests, to treat the arrest as if it did not happen, then it is hard to see how failing to report that which the law permits you to treat as having never happened constitutes a "false statement" under 8.1. As for the "failure to disclose a fact necessary to correct a misapprehension ......" language in Rule 8.1 (2), the law that permits one to treat the arrest as if it had not happened would be meaningless if one had to treat the arrest as a fact that had to be disclosed under 8.1 (2).

Maybe, after thinkng things through, one would reach the conclusion that (a) disclosure is not required, and (b) you choose to disclose that when you were under 21 you were arrested in connection with an unsuccessful attempt to purchase alcohol, applied for first time offender status, successfully completed the program and are entitled under law to treat the matter as if it had never happened, but that out of an abundance of caution you thought it best to disclose it.

Posted by: Wick Chambers | Oct 23, 2007 6:34:51 PM

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