Thursday, November 16, 2017
The case involves review of a decision of the Bar Association to deny the applicant permission to sit for the bar exam on character and fitness grounds.
The argument raises important issues about rehabilitation from serious misconduct and the appropriate standard of review of a 6-3 board recommendation against admission. In particular, there are questions whether adverse findings below were rooted in gender perceptions.
Note how engaged multiple members of the court are with the record and the issues. I was particularly impressed with Justice Yu.
On Saturday a former Washington state prison inmate will graduate magna cum laude from Seattle University School of Law. But her criminal record may prevent her from practicing law as a licensed attorney.
Tarra Simmons’ story could be a movie. She was a nurse, a mom and a wife. Then in 2010 her father, whom she was caring for, died suddenly. After his death, she said, she started using meth and abusing prescription drugs.
“Within 10 months of using, I was arrested three times and eventually sent to prison,” Simmons said in an interview about prison reentry on TVW’s “Inside Olympia” program.
Her final arrest was for delivery of Oxycodone, possession of marijuana with intent to deliver and unlawful possession of a firearm. Simmons spent 20 months behind bars and went through a drug treatment program. She was released in 2013 and her life was in tatters.
“Nobody would hire me because of my criminal record,” Simmons recounted. Her home was in foreclosure and she had to declare bankruptcy.
“I had a lot of barriers,” she said.
Eventually she did get a job at Burger King.
Through it all Simmons got help—a lot of help—from lawyers. They helped with her foreclosure, with the debt that had piled up while she was in prison, and with family law issues relating to her children.
But these attorneys did more than help. They also saw potential in Simmons and encouraged her to apply to law school, which she did.
“I decided that if I was having all of these problems and I have some education in my background, and I have some other privilege, that there’s a lot of people that are suffering,” Simmons explained.
She figured that, as a lawyer, she could help others navigate the hurdles to re-entering society after serving time in prison.
In 2014, Simmons was accepted to Seattle University Law School. Awards and recognition followed. She was named a King County Bar Foundation Scholar and a King County Washington Women Lawyers Scholar. In 2015 she received a Public Interest Law Foundation Grant. And in 2016 she became a Legal Foundation of Washington Goldmark Fellow.
Also in 2016, Gov. Jay Inslee appointed her to the state’s new 15-member Statewide Reentry Council, which she now co-chairs with King County Prosecutor Dan Satterberg.
This year Simmons became only the second student from a Washington state law school to receive a prestigious national Skadden Fellowship. Described as “a legal Peace Corps,” the 29-year-old fellowship program, sponsored by the Skadden law firm in New York, allows recent law school graduates or those finishing judicial clerkships to devote two years to providing civil legal services to the poor. Simmons was awarded the fellowship to work with recently released prisoners.
When Simmons graduates from law school on Saturday she will be awarded the Dean’s Medal for the graduating student “who has the greatest potential to achieve the legal profession’s most noble aspirations for justice and ethics.”
But despite all the accolades, all the honors, and all the successes Simmons has achieved, she’s just been dealt a major setback: Simmons may not get to join the legal profession—at least not right away.
This wasn’t something Simmons was going to talk about publicly yet. But the story came out as she spoke on “Inside Olympia” about her role on the governor’s reentry council and the challenges people like her face after prison.
Here’s what happened.
About a month ago, the Washington State Bar Association’s Character and Fitness Board, on a vote of 6 to 3, recommended against Simmons’ admission to the bar.
All applicants to take the Washington Bar Exam must pass a character and fitness review before they can take the test. For the vast majority it’s a formality. But some applicants get flagged and must make their case to the board. That Simmons was one of them, given her background, wasn’t a surprise. The recommendation not to admit her, though, was.
“It’s very hard, personally for myself and for my children,” Simmons said. “[It sends] a strong message to the community that second chances are really, really hard to get.”
Right now, she can’t even sit for the exam as she had planned to in July.
The Bar Association’s character and fitness review is guided by court rules and takes into account many factors including past unlawful conduct, neglect of financial responsibilities and disciplinary action by any professional licensing agency.
On paper, Simmons has several red flags: felony convictions, bankruptcies and enforcement action against her by the state’s nursing board.
The Washington State Bar Association doesn’t comment on specific cases. But Jean McElroy, the association’s general counsel, said when deciding on character and fitness, the board considers how recent and serious the misconduct was, and its cumulative nature.
“The Board wants to treat everybody fairly and equally,” McElroy said. “And there are people who come in and have great records … but within what the board is looking at, the board just isn’t comfortable that they’re there.”
McElroy added the board must consider not just the fitness of the applicant, but also the protection of the public.
“There’s all sorts of trust that’s put into lawyers,” she said, noting that some states won’t allow anyone with a felony record to become an attorney. Washington is not one of those states.
But still, the recommendation not to admit her is confounding to Simmons and her supporters. She delivered to the board more than 100 letters of recommendation, including one from a judge on the Washington Court of Appeals.
“It’s disappointing,” said Elizabeth Hendren, an attorney at the Northwest Justice Project who first met Simmons when she was in prison and was among those who encouraged her to go to law school.
“She’s already had more accolades and success than many attorneys have throughout their careers,” Hendren said.
Prosecutor Dan Satterberg, Simmons’ co-chair on the reentry council, added, “I have never met any law student more prepared to be a contributing member of the Bar than Tarra.”
But the door to her legal career hasn’t slammed completely shut. Simmons will request a review of the board’s recommendation by the Washington Supreme Court, which has the final say on admission to the bar.
“I think the Supreme Court should take a look at this matter and reverse the Board’s decision,” Satterberg said in an email.
If that’s not successful, Simmons would be able to reapply for admission in one year.
In the meantime she would be able to conduct a limited law practice under the supervision of a licensed attorney. The logistics, though, would be difficult because her sponsoring law firm is in Seattle and the work she planned to do is in Kitsap County.
Simmons said without a license to practice, she might focus on advocacy work instead of legal representation.
One thing she doesn’t have to worry about: losing her Skadden Fellowship. She’s been told she can keep it.
“We deeply believe in her and we believe that this will be resolved amicably,” said Susan Plum, director of the Skadden Foundation. “She just projects resilience and what could be better for the clients?”
Amid the bad news about the Bar Association, Simmons recently received another gubernatorial appointment—this one to the state’s Public Defense Advisory Committee.
The ABA Journal also covered the appealed decision. (Mike Frisch)