Sunday, April 22, 2007

Disclosure Obligations In Bar Admission

For those who are unclear as to the nature of a state bar character and fitness inquiry, we provide this link to the form used by the National Conference of Bar Examiners. A well-prepared law student will start gathering the information sought by the state bar as soon as a choice of bar is reached. As previously noted, the inquiries extend well beyond criminal and school discipline matters. It is universally recognized that full candor (see Model Rule 8.1 on the affirmative obligation of an applicant to correct any misapprehension) is essential to admission. A post -admission discovery of misleading/concealing answers can be career suicide, even if truthful disclosure would not have led to denial of admission. (Mike Frisch)

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National Conference of Bar Examiners (NCBE) Request for Preparation of a Character Report, Question 5:

"Have you ever been dropped, suspended, warned, placed on scholastic or disciplinary probation, expelled, requested to resign, allowed to resign in lieu of discipline from any college or university (including law school), or otherwise subjected to discipline by any such institution or advised by any such institution to discontinue your studies therein?"

Posted by: Jeff Lipshaw | Apr 22, 2007 1:02:02 PM

I'm pretty sure all the speculation on AutoAdmit about Trustafarian not being in trouble with C&F is predicated on 1) charges not being filed and 2) Boalt not taking disciplinary action. If Boalt doesn't discipline him, wouldn't Trustafarian be honest in checking the "No" box to that question?

Posted by: Anthony | Apr 22, 2007 2:20:11 PM

Thanks, Anthony, but in a word, "No." There is zero chance that he won't get SOME discipline at Boalt, and even a "warning" triggers a "Yes" answer. But even if somehow he eludes that, and has no warning or resignation whatsoever (such that "No" is right), the application has plenty of other questions and sources it can check before admitting an applicant. In addition to sources naming him out, one may also assume that the bar will try to burrow in. This made news and will not be ignored.

Posted by: Childress | Apr 22, 2007 2:34:47 PM

In that case, it seems that the professors on this blog and the posters on AutoAdmit are in agreement regarding the C&F issue. The assumptions, at least in the threads I've read, have been that Trustafarian won't be arrested, he won't be disciplined by Boalt, and his name won't be leaked to the press. Perhaps those are very unrealistic assumptions, especially #2, but I don't think I've seen anyone on AutoAdmit claim that Trustafarian isn't going to have problems with C&F if he gets disciplined by Boalt, or even if he doesn't get disciplined but is identified by name in newspaper articles as the culprit. But I guess you're right that even if he can honestly answer No the Hastings dean can cause him a world of problems if she reports him to the bar or if the bar proactively seeks the information.

Posted by: Anthony | Apr 22, 2007 3:18:00 PM

The Minnesota bar application, Question 4.18 asks: "Have charges complaints or allegations (formal or informal) ever been made against you during your enrollment in a post-secondary school, college, university or law school alleging academic or personal misconduct..." (The word "ever" is underlined in the application.) The question ends with a warning in bold: "You must disclose any accusations or allegations even if no disciplinary action was take or you were told that no permanent record would be made of the incident or allegation." I would venture a guess that other jurisdictions go beyond the NCBE as well.The Minnesota authorities look at patterns and recency, but they also look at seriousness.

Posted by: Maury Landsman | Apr 23, 2007 12:21:38 PM

Good point, Maury. I also know that a few states (Penn, I think is one) have a broad catch-all question that I usually would have no idea how to answer...something like Have you ever done anything that would reflect badly on the practice of law or admission to the bar? In this scenario, though, it seems obvious to me that the answer is Yes, and that the examiners would consider non-disclosure to be less than candid.

Posted by: Childress | Apr 23, 2007 1:03:31 PM

The NCBE has way too much power. Applicants apply to a jurisdiction, not the NCBE, but the NCBE (probably due to laziness in the jurisdictions) has been left to feel that it is in charge of the application process. I know of several horror stories wherein the NCBE has rejected applicants that the jurisdictions (that the applicants actually applied to) have no problem with. The NCBE was erected to provide a service and the man/woman who has been put in charge of it is running it like a kingdom. More oversight is needed or the NCBE should just be abolished and disbanded.

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