Character, and the Rest of the Story, with Sid DeLong

“But That’s Not Who I Am”: Character as a Legal Construct and the Case of Paul Converse

Sidney W. DeLong

When contemporary scoundrels are nailed for serious misdeeds, and soon after their initial denials are conclusively disproven, they commonly whine, “But that's not who I am.” These pleas play on our commonplace belief that we all possess a “character,” an enduring core of moral guidance that defines “who we really are.” Somehow, we all learn the Characteristics of Character, viz:

Character is what predisposes us to make all of life’s important moral choices.  Character is relatively permanent.  Character is the site of virtue: human virtues are “character traits,” which can be described very briefly, often with words that are the names of virtues and vices. Character is almost always in control (except when one is acting “uncharacteristically”). Character is uniform; if one acts inconsistently, it does not mean that one has no character, but that one has a wishy-washy character and is acting perfectly consistently with it. One’s character is one’s essence and “building” character is the goal of education and maturation.

In literature, character is central to plot and meaning. The drama in some narratives turns on dramatic changes in character, such as the overnight transformation of Ebenezer Scrooge (right) in A Christmas Carol from a heartless miser to a generous benefactor of Tiny Tim and the Cratchit family. Or the redemption of the cynical, alcoholic lawyer Sydney Carton at the end of A Tale of Two Cities (below left) when he goes to the gallows to save another man’s life: “Tis a far, far better thing that I do, than I have ever done before.”

Is character a matter relevant to law as well as morality? “Character” has a lengthy entry in Black’s Law Dictionary: “The aggregate of the moral qualities which belong to and distinguish an individual person. The general result of one's distinguishing attributes. That moral predisposition or habit or aggregate of ethical qualities which is believed to attach to a person on the strength of the common opinion and report concerning him. . . .”

Despite its predominance as a social and literary construct, however, character is rarely an operative legal category.  “Character evidence” is admissible under certain very limited circumstances, but the rules of evidence generally prohibit introduction of evidence of character in order to support an “inference that a party acted in conformity therewith.” Character per se is not punished or officially pronounced.

So far as I know, however, character per se is a legally operative term in only one area, fitness to be admitted to the practice of law.  Here alone, judges make findings upon the character of a person.

Which brings us to the decision of In re Converse 602 N.W.2d 500 (Neb. 1999), in which the Supreme Court of Nebraska affirmed a determination by the Nebraska State Bar Commission denying the application of Paul Converse for admission to the Nebraska State Bar on the grounds that Converse lacked the requisite moral character and fitness to be admitted to the bar.

In an opinion that has achieved canonical status in law school classes on professional responsibility, the court found that Converse’s behavior while he was a law student showed that he lacked the “character and fitness” required for the practice of law. This holding tends to get law students’ attention and the supporting narrative tends to nail it down.

The determination rested on several incidents while Paul Converse was a 45-year-old law student at the University of South Dakota law school. The school reported these incidents at the invitation of the bar Character and Fitness Committee. He began with a letter, written at the end of his first semester, to the (female) assistant dean complaining about several of his first-semester courses. He closed the letter with the phrase, "Hope you get a full body tan in Costa Rica."

At the end of his second semester, when he received a low grade in an appellate advocacy course, Converse wrote letters protesting his grade to the law school Dean, to all the members of the state supreme court, and to federal judges Richard Posner and Alex Kozinski. In these letters he complained about the legal incompetence of his advocacy professor. He also circulated a memo to his classmates urging them to give her a bad student evaluation because of her mistreatment of him in class.

In his third semester he posted a photograph of a naked woman in his study carrel in the law library. When a librarian removed the photo, Paul filed a written complaint with the ACLU. When it responded that the photo might be protected speech, he threatened to sue the school and the dean for unconstitutional censorship. He also redisplayed the photograph in order to force the constitutional issue.

When some of the students complained about his behavior to the dean, Paul threatened to sue them and warned them that just having a lawsuit on their record could prevent them from being admitted to the bar.

Converse also wrote a letter to a newspaper protesting a proposed fee increase at the law school.  He posted a list of the salaries of several law professors on the student bulletin board and publicly accused Dean Vickrey of trying to pull a "fast one."

Converse filed an ethics complaint with the North Dakota Bar Association regarding correspondence between Dean Vickrey and a retired justice of the North Dakota Supreme Court. When his complaint was dismissed. he wrote in the student newspaper that the justice’s letter to the ACLU was a violation of judicial ethics. Converse also contacted the president of USD, referring to Vickrey as an "incompetent" and requesting that he be fired.

In his third year, before graduation he offered for sale to his classmates T-shirts he had designed with a cartoon depicting the dean, naked, astride a hot dog with the caption “Deanie on a Weenie astride the Peter Principle.”

Based on these and other incidents, after reviewing the eligibility requirements for legal practice in Nebraska, the court concluded that Converse's numerous disputes and personal attacks indicated a "pattern and a way of life” in which his normal reaction to opposition and disappointment was to personally attack those with whom he has disputes, behavior that was “not acceptable in one who would be a counselor and advocate in the legal system. . . Taken together with the other incidents, the evidence clearly shows that Converse is prone to turbulence, intemperance, and irresponsibility; characteristics which are not acceptable in one seeking admission to the Nebraska bar.” The court thus denied his application.

 I imagine that most readers of the full opinion would come to the same conclusion long before the list of his misdeeds had ended, as I certainly did. The moral of the story for most law students is doubtless “If you want to be a lawyer, don’t be a jerk.”

Alfonso XIII, King of Spain,
displaying character in a Boy Scout uniform

But was Converse’s failing a matter of “character”? There was no evidence in the record of criminal or tortious conduct; no examples of dishonesty, fraud, theft, breach of promise, drunkenness, drug use, or recklessness or any other breach of moral rules. Nor did he seem violate the statement of The National Conference of Bar Examiners that a “record manifesting a significant deficiency in the honesty, trustworthiness, diligence, or reliability of an applicant may constitute a basis for denial of admission.”

Rather than matters of character, Converse seems to have had defects of personality. Evidence showed him to be offensive, mistrustful, obsessive, discourteous, impolite, and demanding. Character and personality are different in ways that are easier to illustrate than to define. Consider the Scout Law that I memorized as a Tenderfoot: “A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.” Some of these are character traits, clearly relating to ethics or morality: “trustworthy,” “loyal,” “obedient,” “brave.” Some seem to refer to personality: “helpful,” “friendly,” “courteous,” “kind,” and “cheerful.” “Thrifty,” “clean” and “reverent” could go either way.

How much of Converse’s behavior was unethical or immoral? How much was the product of an offensive, boorish, or obsessive personality? Should Nebraska exclude everyone from the practice of law who falls short of the Scout Law? (Or who cannot tie a bowline hitch?) Many practicing lawyers are boorish. obstreperous, obsessive, aggressive, challenging, suspicious-minded. But we don't think of disbarring them, and we recognize them as valuable members of the legal profession. Do their personalities represent trade usage with respect to ethics and personality that should inform the work of Character and Fitness Committees?

And as far as the personalities of law students are concerned, many of Converse’s offensive personality traits are those of a future vigorous advocate. In these times we should be reluctant to disqualify from the practice of law students who are hypersensitive to perceived slights and insults; who are excessively zealous in arguments based on principle; who mistrust authority and openly challenge those whom they feel are taking advantage of their power; who are not afraid to give offense in arguing for what they believe is right. On slightly different facts, arguing on behalf of different causes, Converse’s law school career would be indistinguishable from hundreds of successful, activist law students.

Finally, because decisions like Converse always turn on the totality of the facts before the Committee, it is impossible to predict how a similar case would turn out if one or two facts had been different. While the decision is valuable as a cautionary bugaboo with which to frighten law students into polite behavior, it is worthless as a precedent because it rests on the unique sum of its facts.

The Rest of the Story. “But that's not who I am” means “My misdeeds are non-characteristic, out of character. I am essentially a much better person. I am not this bad thing I did.”

Jean-Paul Sartre would probably have responded. “No, what you have done is exactly who you are. But it is not necessarily who you will be.” The French existentialist emphasized human freedom when he famously asserted “Existence precedes essence.”  Our essence (who we are, i.e. our character) does not precede and determine our existence (what we do, the choices we make). Our character is indeed no more and no less than the sum of all our actions, a sum that cannot be totaled until our radical freedom terminates in our death. For Sartre, no man's character can be determined until his obituary is written.

So it was with Paul Converse, whose obituary was written ten years after the Nebraska Bar Committee on Character and Fitness determined that he did not have a moral character that made him fit to practice law in the State of Nebraska.

Paul Converse Obituary

Oct. 21, 1951 - March 24, 2008

Paul Raymond Converse died March 24 in an American hospital in Iraq from severe wounds received while working in Baghdad as a civilian for SIGIR (Special Inspector General for Iraq Reconstruction).

Paul was born in Brookings, S.D., to Richard and Leona Converse. The family moved to Corvallis in 1967.

After graduating from Corvallis High School in 1969, he received a bachelor's degree in agricultural engineering technology from Oregon State University in 1978, a master's degree in business from the University of Oregon in 1985, and a Juris Doctor from the University of South Dakota in 1998. Throughout this period and until his death Paul was an enthusiastic and competitive swimmer. After his death, a friend and colleague of his in the Green Zone wrote that he and Paul had finally had a good swim on March 22, 2008, in an outdoor pool in the Green Zone that had just opened for the season.

In his younger years, Paul worked a wide range of jobs including land surveyor, Alaska cannery foreman, realtor and agricultural machinery salesman. Thereafter, he worked abroad, first for a U.S. non-profit organization in Romania, then on reconstruction projects for the United Nations in Bosnia and in Kosovo. In 2003 Paul was hired as an agricultural adviser for a U.S. firm working in northern Iraq. He subsequently transferred to the U.S. Department of State to work in central Iraq. In 2007 he was hired as a civilian financial adviser and worked for SIGIR in the Green Zone in Baghdad until his death in 2008. . . .

Throughout his career, Paul followed his interest in helping to improve the livelihood and living conditions of people in several countries. Prior to his death, Paul was working to bring one of his Iraqi aides to the U.S. on an asylum program. A memorial fund has been created specifically to assist this person to become established in the United States. Those who wish to honor Paul can make a contribution to the Paul Converse Memorial Fund at the OSU Federal Credit Union by calling 541-714-4000 . . . .

Published by Corvallis Gazette-Times on Apr. 1, 2008.

This is the person whom the Nebraska Bar found to be unfit to be a lawyer. Were they right? Did he change? Or did they miss something?