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Preventive Policing - Admission Standards

Sunday, September 25, 2011

7:52 PM

 

No one may perform legal services for another person or entity without first being duly licensed or authorized by a court to do so - how one gets licensed to practice is the subject of this chapter.

 

Federal courts have the exclusive right to determine admission to federal courts. Their admission rules preempt state law on unauthorized practice, which only applies to practice before state courts. Most District Courts require the attorney to be a member of the bar of the state in which the District Court is located. However, if a lawyer is disbarred by a state, that disbarment does not necessarily terminate the lawyer's admission to federal courts in that state.

 

Formal Admission Requirements:

• Education

• In California, an applicant must be at least 18 years of age and must have completed at least two years of college work equivalent to a least one-half the requirements for a bachelor's degree, or must have acquired the "intellectual ability" equivalent of two years of college work as tested by the admissions committee. B&P 6060

• In addition to undergraduate education, California requires that an applicant receive a sufficient legal education. B&P 6060(e) enumerates several ways in which this requirement may be met by a bar applicant:

▪ Graduations from an accredited law school;

▪ Study for at least four years at a law school that is approved to confer profession degrees;

▪ Study at a foreign law school where "the common law of England does not constitute the basis of jurisprudence" provided that the applicant can demonstrate that his or her "education, experience, and qualifications" are sufficient to qualify for the bar examination;

▪ Study in a law office in California under the personal supervision of a member of the State Bar who has been engaged in the active practice of law for five years, provided the supervising attorney renders periodic reports to the examining committee;

▪ Study in the chambers and under the personal supervision of a judge of a California court of record, provided the supervising judge renders periodic reports to the examining committee;

▪ Instruction in law from a correspondence law school authorized or approved by California to confer professional degrees; or

▪ "Any combination" of the above listed methods.

• Use of any of the alternatives to graduation from an accredited law school carries the additional obligation that the applicant take and pass "the baby bar" after completion of the first year of instruction.

• The Bar Examination

• California, like most states, requires passage of the bar examination as a condition to practice law.

• States may place a limit on the number of times the bar examination may be taken, but California permits applicants to take the bar examination twice a year until they pass.

• Citizenship and Residence

• The United States Supreme Court has held that admission to the bar may not be based on citizenship because this criteria bears no reasonable relationship to an applicant's ability or fitness to practice law. Graham v. Richardson

▪ Constitutional Test = Does the requirement bear a reasonable relationship to the applicant's ability or fitness to practice law?

• Residency Rules:

▪ A nonresident who has passed the bar exam, but chooses not to live in the State, cannot be denied admission - a requirement of this nature is unconstitutional under the Privileges and Immunities Clause, which requires a State to treat equally all residents and nonresidents doing business in the State.

▪ A lawyer licensed to State A who seeks admission by reciprocity in State B cannot be required to become a resident of State B - a requirement of this nature also violates the Privileges and Immunities Clause. A State could eliminate its reciprocity requirement entirely, but it cannot require residency as a condition to reciprocity.

▪ A State may not require a person to be a resident for a short period of time before being allowed to take the bar exam.

▪ A federal court may not impose a residency requirement as a condition for admission to its bar, but it may require that an attorney be a member of the bar of the State in which the federal court sits.

▪ A State may constitutionally require a nonresident, as a condition of admission by reciprocity, to agree to practice full time in that jurisdiction.

▪ A federal district court cannot require that an applicant maintain a residence, or an office, in the State in which the federal court sits.

Substantive Requirements:

• Good Moral Character

• B&P 6060(b) and 6062(b) require that an applicant "be of good moral character."

• The burden of proving good moral character is upon the applicant who must initially furnish enough evidence of good moral character to establish a prima facie case. The Bar then has the opportunity to rebut that showing with evidence of bad character. If sufficient evidence is presented to rebut the applicant's prima facie case, then the applicant must introduce further evidence of good character or must discredit the evidence presented by the State Bar. The applicant is entitled to a due process hearing.

• The standard of "good moral character" is a broad, vague requirement without precise definition:

▪ In general, licensing laws without clearly delineated standards are tantamount to censorship and may violate the First Amendment. However, the "good moral character" standard for bar admission has survived number constitutional attacks despite its vagueness.

▪ Two Definitions:

• An absence of evidence of acts of "moral turpitude," which in turn has been broadly defined as "everything done contrary to justice, honesty, modesty, or good morals."

• An "act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

• In all cases where the State Bar alleges moral turpitude, the important constitutional test formulated in Schware v. Board of Bar Examiners, must be satisfied:

▪ Any qualification must have a rational connection with the applicant's fitness or capacity to practice law.

▪ Some acts are inherently instances of moral turpitude, such as homicide offenses and other violent crimes.

▪ Acts involving moral turpitude usually involve:

• Fraudulent, dishonest, deceptive or cheating conduct for personal gain;

• Immoral or grossly antisocial conduct;

• Conduct reflecting adversely on an applicant's ability to discharge his or her duties as an attorney, such as drunkenness or drug abuse; or

• Other questionable conduct for personal gain.

▪ For behavior that does not inherently involve moral turpitude, a factual inquiry must be undertaken to assess the circumstances and motivations involve in the conduct.

• As applied to the licensing of attorneys, an act of moral turpitude is one which bears a direct relationship to the individual's fitness to practice law.

• It must reflect on the individual's honesty and veracity or demonstrate that the individual is unfit for the proper discharge of the individual's duties as an attorney.

• In evaluating good moral, there have been four major dimensions that have proven to be of special interest for bar examiners:

▪ Mental Health

• Traditionally, applicants have been asked to answer questions concerning their mental health.

• These questions generally inquire into any treatment, counseling, or hospitalization for any mental, emotional, or nervous disorder.

• The enactment of the American With Disabilities Act of 1990, has forced bar associations to limit the scope of its inquiries about mental health and illness.

• A substantial body of case law under the Act limits the questions that may be asked about an applicant's mental health by setting a temporal ban (can only ask about last five years) and/or a substantive ban (can only ask about major psychiatric disorders that could affect an applicant's ability and fitness to practice law).

▪ Honesty and Integrity

• One of the most serious mistakes an applicant can make is to be deceitful on the application for admission. See ABA MR 8.1(a); CRPC Rule 1-200(A).

• Deceit may consist either of affirmative false statements of material facts, or of significant omissions.

• It is not sufficient, however, that everything on the application is truthful if the applicant has purposefully omitted significant relevant facts.

• A failure to disclose relevant information can be the basis for denial of admission. CRPC 1-200(A)

• The California Supreme Court has recognized a distinction between "affirmative misstatements intended to place an applicant at an advantage and the unintentional nondisclosure of information which, under the circumstances, is not morally significant."

• All material facts must be disclosed, unless they are protected by a privilege, in which case the applicant must affirmatively state that certain facts are being withheld because of the privilege. ABA MR 8.1(b); California, likewise, recognizes this rule.

• Failure to disclose relevant information is itself an act of moral turpitude.

• If the applicant has succeeded in being admitted despite the failure to disclose relevant facts, the Supreme court may impose post-admission sanctions, including disbarment. The Supreme court also has the power to cancel the license of admittees when post-admission deceit by omission is discovered.

• ABA MR 8.1(b) imposes an additional duty on bar applicants - to correct misapprehensions known to exist on the part of the bar examiners. There is no similar obligation under the CRPC, although the failure to correct known misapprehensions might be considered a form of knowing omission.

• If the bar applicant has been disciplined for violating a university or law school rule, then B&P 6060.1 provides:

• Basically, unless the violation concerned moral turpitude, then the violation cannot be used as the sole basis for denying the individual admission.

• ABA MR 8.1 is the only ABA Model Rule that applies to nonlawyers because it concerns persons seeking admission to the bar.

• In California, law students must register with the State Bar within three months of entering law school. B&P 6060.

• CRPC Rule 1-200 is the only California rule dealing with admission.

▪ Criminal Conduct

• Not every criminal conviction will result in exclusion from the bar. Even conviction of a felony may not no rational connection to the ability and fitness to practice law.

• On the other hand, conviction of a misdemeanor might result in exclusion.

• The important determining factor is whether the crime involves moral turpitude per se, or whether a determination of moral character depends upon the particular circumstances, such as the nature of the acts and the state of mind of the actor.

• Although the crime itself may not inherently involve moral turpitude, the State Bar may examine the circumstances surrounding its commission to determine whether the behavior itself involves moral turpitude.

• The State Bar may consider criminal acts for which the applicant has been acquitted, pardoned, not charged, or for which charges had been dismissed. But these acts must be such as to:

• Violate community moral standards;

• Involve dishonesty or fraudulent conduct;

• Involve economic dishonesty for personal gain;

• Reflect adversely on the applicant's fitness to practice law

• Affect the applicant's potential duties as an officer of the court or as a fiduciary of the client; or

• Constitute concealment or failure to disclose relevant material to the State Bar.

• Courts have generally permitted applicants or attorneys with criminal violations to practice law where the violations are not serious, not repeated or continuous, and did not involve deceit, dishonest, or other character flaws making the person unfit to practice law.

• Serious crimes, including homicide, domestic violence, sexual assaults on others, and robbery, are sufficient grounds for denial of admission or disbarment.

• Should an applicant who practices civil disobedience be excluded from the bar?

• California State Bar Formal Opinion 2003-162 reached the following conclusions regarding civil disobedience: (1) advocacy is protected under the First Amendment unless it is intended to incite or produce imminent lawless conduct; (2) an attorney who engages in violations of the law may be disciplined; and (3) an attorney may not advise a client to disobey the law unless the attorney reasonably and in good faith believes that the law in invalid and there is a good faith argument for its reversal or modification.

• See CRPC Rule 3-210.

▪ Social Conduct

• Every aspect of an applicant's social conduct is available for scrutiny by the bar examiners.

• In recent years, the "hot ticket" issues have involved drugs, substance abuse, and financial irresponsibility.

▪ Sexual Conduct

• Applicants may be denied admission for actionable sexual conduct, such as rape, child molestation or efforts to solicit sexual contact with minors.

▪ Political Views

• The US Supreme Court has addressed the issue of political beliefs as a condition to admission to the bar in many cases. The following conclusions reflect the current law involving political beliefs and bar admission:

• State Bar committees have the power to investigate good moral character. This criteria is not unconstitutionally vague or overbroad. The burden can be placed on the applicant to prove good moral character.

• Constitutional rights limit the exercise of discretion by bar examiners and courts.

• Mere membership in an organization is not a sufficient basis for exclusion from the bar.

• The State Bar cannot require disclosure of all memberships and organizations affiliations. However, it can maintain a list of certain organizations and may ask about them.

• The State Bar can inquire into knowing membership and willingness to participate in the goals and purposes of an organization, especially where the organizations preaches the violent overthrow of the government or other major crimes. The State Bar may inquire into all knowing membership in "subversive" organizations.

• The State Bar cannot force an applicant to prove his or her loyalty to, or belief in, the government. However, the State Bar can require that the applicant take an Oath supporting the Constitution and the laws. B&P Code 6068(a).

• The State Bar can deny admission to an applicant who obstructs the investigation, refuses to answer legitimate questions concerning his or her knowing involvement in subversive or terrorist organizations, refuses to supply information not protected by a privilege, or otherwise does not cooperate with the good moral character investigation.

• Currently, a belief in communism is not perceived as the serious subversive threat that triggered the USSC rulings on political beliefs. Instead, threats of subversion not stem from three sources: (1) right-wing militia movements; (2) terrorist organizations; and (3) hate groups.

▪ Racial or other discriminatory views

• ABA MR 8.4(d) - considers it to be professional misconduct to "engage in conduct that is prejudicial to the administration of justice."

• Comment 3 to MR 8.4: "A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, natural origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d)."

• According to CRPC 2-400(B)(2), at attorney "shall not unlawfully discriminate …on the basis of race, national origin, sex, sexual orientation, religion, age or disability in …accepting or terminating representation of any client.

• Under Section 2-400(C), before a disciplinary investigation may be commenced against an attorney, a court must first have concluded that the alleged unlawful discrimination actually occurred. Before discipline can be imposed, "the finding of unlawfulness must be upheld and final after appeal, the time for filing an appeal must have expired, or the appeal must have been dismissed."

• See also B&P section 125.6.

• Attorney Recommendations and Duty to Reveal

• An attorney who knows an applicant is unfit must not take action to "further" the application for admission. CRPC 1-200(B).

▪ The best view of what constitutes "furthering" are those affirmative acts of assistance in the applicant's petition for bar admission.

• There is no similar provision in the ABA Model Rules.

▪ ABA MR 8.3 mandates disclosure of information known to a lawyer about the honesty and continued fitness of another lawyer or a judge, but no provisions in the Rules require a lawyer initially to volunteer unfavorable information about an applicant, unless the lawyer recommends the applicant, in which case the lawyer must then reveal the unfavorable information.

• California declined to enact this "squeal rule" in reference to lawyers and judges, thereby suggesting it opposes requiring State Bar members to affirmatively to volunteer information about applicants they do not recommend.

• MR 8.1(b) expressly states that information protected by the ethical obligation of confidentiality does not have to be disclosed by applicants or lawyers in connection with a bar application.

• California law reaches the same conclusion based on B&P Code section 6068(e), which requires attorneys to protect the confidences and secrets of their clients.

• Both California and the ABA Model Rules make it clear that the admission rules contained in CRPC 1-200 and MR 8.1 do not apply to an attorney who is acting as the lawyer for an applicant, or as an attorney for a member of the bar at a disciplinary hearing.

Obligations Upon Admission

• Attorney's Oath and Duties

• Before being admitted to the California Bar, an applicant is required to sweat to the Oath contained in B&P Code Section 6068 -

Readmission: Rehabilitation

• A disbarred attorney might still be able to return to practice after the passage of years if he or she can prove remorse, good moral character, good deeds and good reputation since the disbarment.

• The more serious the earlier misconduct, the stronger the rehabilitative showing required.

 

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