Legal ethics

A Bridge Too Far to Terabithia

(If the pop culture reference doesn’t automatically make sense to you, you can scroll to the end for an explanation.)

In addition to representing lawyers and law firms over the years, I’ve also represented quite a few law students during their application and admissions process and had to handle a few Show Cause hearings where the admissions body has questions about the “character and fitness” of the applicant.

That fact is my jumping off point for discussing a recent Ohio decision denying an applicant admission to the bar there that presents a rare example of showing both what a good character and fitness outcome should look like and what absolutely ought not be the stuff of character and fitness proceedings.

For those that are not at all familiar with the general process, when someone is being denied admission because a group of lawyers determines they do not have the character and fitness to practice law, we are talking about denying a law license to someone who has graduated from law school and passed the bar in the relevant state jurisdiction. (*Not in states with diploma privilege.) And we are talking about a group of lawyers who have volunteered to serve in a capacity where they will sit in judgment of the “character and fitness” of law students and other applicants to the bar.

Now, there are pretty much two types of people who are prone to volunteer for such a gig. People who have a pretty solid streak of self-righteousness in them, and people who think of themselves as being pretty empathetic and hope to balance out the first type. Both types, of course, likely consider themselves to be good judges of character. (I do recognize the irony of me passing judgment in this paragraph on the “character” of such volunteers and, of course, I acknowledge there are quite a few other types.)

The procedural history of the In re Johns case in Ohio is likely only of interest to Ohio lawyers but it is a little surprising to read that, at any point, Mr. Johns was going to be approved by any subset of the powers-that-be. As to the substance though, the opinion lays out that there were 10 incidents in the mix that justified refusing admission to the bar.

The timeline of events shows that Mr. Johns did not go straight through from high school to college to law school and strongly indicates that he was likely at least in his mid-thirties at the time he graduated from law school in 2021.

Incidents 6-10 present more than enough problems and cover ground that is entirely fair for consideration. Those incidents involve conclusions that the applicant had been untruthful in a number of ways in his application for admission to the bar and had a very recent history of domestic violence.

Incidents 4-5 offer something of a mixed bag as they are linked in terms of conduct — both involving incidents where alcohol consumption impacted operation of a vehicle. The earlier of the two was something that occurred a full 10 years prior to graduating law school. Particularly in cases of law school graduates who follow a more traditional path, examination of conduct from a decade earlier is almost never justifiable as probative. For example, I graduated from law school when I was 24. Nothing I did good or bad when I was 14 would have had any bearing on whether or not I had the character and fitness to practice law in 1998. I’ve represented applicants in their mid-twenties, and when admission authorities question them about conduct when they were not yet even of adult age, it always feels like at best a waste of everyone’s time and, at worst, an instance in which the self-righteous tendency has run amok.

And that’s where we get to Incidents 1-3 in the Ohio case. The first two incidents were things that happened in high school. Which, for this applicant, might have been as many as 20 years ago. The third incident happened about 14 years before graduating law school and involved borrowing a snowboard from a ski-resort employer and failing to return it the very next day.

Now, here you might find it hard to be sympathetic with this particular applicant and be unable to muster any outrage that the character and fitness investigation when that far back in time. Or you might let the opinion’s own partial acknowledgment that some of the incidents were in the “distant past” and on their own would not have justified barring the applicant from the practice of law dampen your concerns.

I’m saying that you really should not though. You should not underestimate the willingness of those who sit in judgment of bar applicants to ascribe weight to conduct that reasonable people should dismiss out of hand as being from the “distant past” in order to raise questions about applicants and then force them to try to prove by clear and convincing evidence that they have the requisite character and fitness to practice law.

And, particularly, when you think about the fact that every lawyer you’ve read about who ended up doing criminal or horrible things as a lawyer was once determined to have the requisite character and fitness to practice law, you really should be willing to muster a bit of outrage.

(N.B. Bridge to Terabithia was a popular pre-teen fiction book that was turned into a movie. I never read it, so I tend to misremember it as actually being a “young adult” novel. I think a pretty good rule about where admissions authorities should fear to tread in terms of timeline is if, at the time of whatever event they are expressing concern about, they could believe that the applicant was still devouring works of young adult fiction.)