What do Barack Obama and a five-time bank robber have in common? They both passed the Character and Fitness test to become lawyers. To verify their moral character as part of the Bar Exam, law school graduates must complete a 36-page questionnaire about past criminal offenses, academic misconduct, mental health diagnoses, traffic violations, substance abuse, and debt. If the state’s Committee of Character and Fitness flags their application, they must stand before a hearing. In 2014, the Washington Supreme Court approved Shon Hopwood—the bank robber in question. Four years later, the same court denied admission to Tarra Simmons, who had overcome bankruptcy, criminal conviction, and substance abuse to pass law school with flying colors. Within the gray area of rehabilitation and rejection, what standards determine whether an aspiring lawyer is worthy of the profession?
The answer to this question varies from state to state, year to year, and person to person. As the Supreme Court of California acknowledged, “[t]he term ‘good moral character’ […] can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer.” This ambiguity opens the door to discrimination, undermining the very purpose of the Character and Fitness test—to guarantee the moral standing of the legal profession. In pursuit of just standards and practical reform, the legal profession should consider alternatives to the state Bar’s Character and Fitness test.
In the late nineteenth century, the legal profession was steadily growing, with a new cohort of immigrant and working-class lawyers receiving certification. State bars, run by an elite establishment of attorneys, sought to combat the “overcrowding” of the profession by raising the barriers of entry. They founded the American Bar Association (ABA) in 1878 to unify law schools and state boards behind a more rigorous and standardized screening process. By 1928, nearly all states had adopted the ABA’s Character and Fitness requirements.
More often than not, minorities bore the brunt of these inconsistent standards. Historically, women, immigrants, and “communists” have been more likely to fail the Character and Fitness test. People of color uniquely have a higher burden to prove rehabilitation due to disparate punishment under the criminal justice system. Applicants with a flagged history of mental illness undergo questioning where they must explain painful and vulnerable moments of their life before a scrutinizing committee of examiners; many aspiring lawyers avoid seeking necessary psychiatric treatment to prevent such issues from ending up on their official records. Even more troubling is that many of these questions violate the Americans with Disabilities Act, which is meant to protect individuals from discrimination due to mental and physical disabilities. While a 2014 investigation into the Louisiana Supreme Court by the Department of Justice for such violations has prompted several states to follow the ABA’s call and remove mental health disclosures from their applications, 37 states and Washington DC have yet to institute changes.
To put a number to the test’s success, one study found a 5 percent probability that applicants with flagged character investigations would commit future misconduct later in their careers—hardly grounds for rejection. As a whole, most states only turn away 0.5 percent or less of their candidates on Character and Fitness grounds. But certainly, more than 0.5 percent of lawyers act immorally. Across three of New York’s jurisdictions, at least 3.6 percent of licensed attorneys received disciplinary complaints. The New York Times continues to release headlines such as “ChatGPT lawyers,” “Trump Lawyers,” and “New York Nightlife’s Lawyer King,” all stories of licensed attorneys who commit fabrication, breaches of confidentiality, and fraud. This draws on a deeper underlying question: Can we predict human behavior at all? Psychological research suggests that unethical behavior is driven by situational forces rather than inherent character flaws. Attorneys are more likely to commit misdemeanors later in life when faced with the onslaught of financial, familial, and work-related pressures after they have already been accredited by the Bar. Meanwhile, facing new circumstances, law graduates with criminal convictions can turn their life around, proving to be upstanding lawyers.
The maze of private corporations underpinning the legal profession inhibits reform. Character and Fitness tests are part of a larger effort to enforce ethical standards, as encapsulated by the ABA’s Model Rules of Professional Conduct. However, the ABA only has informal control over the enforcement of their standards. The National Committee of Bar Examiners (NCBE), a separate organization created by the ABA in 1931, is in charge of implementing the principles of the profession through the creation and administration of the Bar Exam. In addition, they supply Character and Fitness services to around half of the legal jurisdictions in the country. The NCBE has little interest in reforming character tests. Their clients are not prospective lawyers or the public, but state bar examiners spurred by profit incentives: In 2021, character investigations generated more than $5 million of profit for the NCBE. Reforms would only generate costs. State bars unaffiliated with the NCBE operate under similar incentives, acting primarily out of the public eye, undermining accountability to change.
Research suggests many avenues of making Character and Fitness tests more equitable: increasing transparency, publishing testing records, and diversifying Character and Fitness Committees. However, considering the covert incentives of state bars and the NCBE against the expense of reform, the best solution is the simplest: Get rid of the tests.
An alternative to Character and Fitness tests could require individual law firms rather than separate committees to attest to the character of new employees, folding the screening of moral character into the routine background checks required by prospective employers. Firms are likely to do a much more thorough job than Character and Fitness Committees, given that their reputation is on the line. Because the legal profession is self-regulated, state bars could drive this change in alliance with the ABA. If they are worried about losing the Character assessment’s liability mechanism, they can similarly require applicants to self-disclose critical information to law firms, enforcing pledges of honesty and accountability against future misconduct. Character certification can follow the now-attorney to subsequent workplaces unless they commit ethical violations, prompting their current employer to revoke it. Employers learn about applicants at various stages of the employment process—through their application, interview, and then, upon hiring, their interactions with cases and clients in the workplace—giving them empirical evidence of their moral character. Therefore, they have a unique perspective to contextualize applicants they are interested in working with.
State bars can then devote their energies to a broader disciplinary regimen. It is important to ensure lawyers act morally, but it does not make sense to penalize law graduates at the beginning of their careers when seasoned lawyers continually get away with misbehavior. Besides streamlining the disciplinary process, state bars could consider periodical relicensing, as is done in Australia. In doing so, they ensure Character and Fitness requirements are not just a one-off test, but a professional ethos.
Throughout these reforms, it is the burden of the legal profession to continue to find more accurate and equitable definitions and determinations of character, treading the line between equity and discipline. This is what it takes to truly raise the Bar.