Tuesday, July 15, 2008

Need Your Help: Advice For A NY Bar Applicant With A Shoplifting Arrest/Expungement

Posted by Alan Childress

Calling Mike Frisch, John Steele, Brad Wendel, and other editors or readers who have experience in bar admission matters.  Here is an email I received from someone I will call Rose Marie, just because I like the name and the character on the Dick Van Dyke Show.  She wants our thoughts on her C&F prospects.

I stumbled on a couple of stories on your blog about bar applicants with "prior bad acts," and I wonder if you could give me some pointers.  I just graduated law school and am writing for the NY bar this month.  Three years ago (before law school started), when I was living in [Fredonia], I was stupid enough to shoplift in a department store and got caught with $20 worth of merchandise.  I got into a first-time offender diversion program, completed it, and the charges were withdrawn.  I got everything expunged from the [Fredonian] system.  Other than that, nothing indicates bad moral character on my part.  Recently, I've become anxious how this may affect my admission despite several good character references from places I worked and volunteered both before and after the charges.

I do plan on giving a full and complete disclosure on the bar application [which in NY follows the exam (the C&F questionnaire, I mean)--Alan].  I want to know if you would recommend counsel/attorney advice before filling out the documents, and if there are other things I may do to show complete rehabilitation.

I would appreciate it if you could either email me directly or post this (anonymously) on your blog.  Thank you greatly,...

One piece of advice I wrote RM back, and am sure of, is that right now she should focus on the bar exam itself.  Beyond that, my impression is that this is the kind of history that, with full disclosure and remorse [though not laid on too thick as to sound insincere ... maybe "regret" is better], may well be the subject of some follow-up but is unlikely to prevent or seriously delay bar admission, even in NY.  Do the experts agree?

From Mike Frisch -- I think this should not be much of a problem with full candor and expressions of "lessons learned." Helpful that it is pre-law school. Would not see any need to retain counsel and think that Alan's "focus on passing" advice is spot on.

UPDATE (from Alan):  I emailed John Steele, and he wrote back his advice.  Speaking to it as a hypothetical with only the information above, John writes:  "I definitely would go to the APRL site, look for NY lawyers, and get a consult before filling out any forms."


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This doesn't help your questioner, but I've always been frustrated that students have to wait for the answer to this question until after graduation. I proposed an alternative here -- http://legalethicsforum.typepad.com/blog/2008/04/character-and-f.html -- and I've yet to hear a good reason for not doing it.


Posted by: Andrew Perlman | Jul 15, 2008 3:28:07 PM

I have a question: If the charges against the "questioner" were withdrawn (necessarily with prejudice) under a deferred adjudication arrangement, then there was nothing to be expunged; the conviction never was and the charges are a legal nullity. Therefore, is it truly necessary for to disclose a conviction that never was?

Posted by: Sean Harrington | Jul 15, 2008 8:47:06 PM

Sean, That is a fair question, and one that many of my students have asked in filling out these forms (often for drug issues or underage drinking). But whether or not this applicant needs a lawyer now (the disagreement above), I am sure we agree that it should be disclosed.

Most states ask the applicant about arrests, and not just convictions. Some state bars have denied or delayed applicants for conduct that did not result in convictions. They can easily track and uncover arrests and will focus on lack of candor rather than the underlying offense. A few states ask for a general disclosure of anything that would reflect negatively on fitness to the bar (I recall that Maryland is one such bar), which is nebulous and reaching but still seeks disclosure. In all cases my advice is to disclose anything that can fairly be said to answer the question asked, and not to get cute or play lawyer in interpreting the question. If it says arrest, that even includes one that is "wiped out," I advise disclosing. Because any such nondisclosure will be treated worse than the underlying offense that was wiped out or is a nullity of sorts.

I don't recall whether NY is one of the states that inquires about arrests, but I bet it is (and a reader will clarify for us). Yet my advice is the same in any event, out of an excess of caution and because they value candor and accepting responsibility in this process above most other considerations.

My advice even on the conviction question is to list the conviction and explain that it was expunged rather than rely on some computer record to back one up for simple nondisclosure.

My leaning toward candor does end at questions that openly exclude certain matters, as many questions now do. If it says do not include convictions which have been expunged, then don't (but still list it as a arrest if there is anything close to an arrest in one's record and they ask that). If it says ignore juvenile records, then don't list that.

This is one value of seeking experienced legal counsel before filling out the form: simple discovery on one's self and how the official record looks to a bar. It may not be what one was told at the time it would say.

Posted by: Alan Childress | Jul 16, 2008 4:52:30 AM

i agree with mike frisch and alan's 7:52 comment - if applicant discloses, accepts responsibility and say s/he's sorry it might delay, but shouldn't prevent, admission -- failing to disclose (it's the cover up) would bar admission when it's discovered, and it almost certainly will be discovered -- i wouldn't recommending lawyering up until/unless the admission folks indicate that there might be a problem

Posted by: fred ours | Jul 16, 2008 7:03:06 AM

I am in much worse situation. I was arrested for shoplifting after I took the bar exam ( NY). It turned out that I passed the bar and now I am facing the C&F problem. I got a diversion program since this was my first time ( no community service or fines , only a stoplift class) and after successful completion my case was dismissed and the file sealed. Still I have an arrest record and the fact that the CIMT act was committed AFTER I took the bar is probably going to weigh heavily on my admission application. I still can't explain why I did it. I was undergoing a very difficult time in my life and it was probably a contributing factor, however I am aware that it is not an excuse to what I did and I will have to live with the consequenses of my bad act. I will appreciate any advice. thank you

Posted by: | Feb 4, 2009 6:10:41 AM

responding now to the 2/4/09 comment, it is clear to me (Alan) that John Steele's advice in the original post is surely applicable: hire an experienced lawyer dealing with bar admission and discipline matters, such as a member of APRL. Do not go this one alone. Consult one asap. This will have to be disclosed promptly, of course, so have it presented for you as best as you can.
Alan Childress

Posted by: Legal Profession Prof | Feb 4, 2009 7:07:11 AM

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