Friday, March 20, 2009


By : E. Pearson Firmingham, Esq., Chairman, Committee on Character & Fitness, New York State Board of Bar Examiners

Practicing law requires impeccable moral fitness. Although legal doctrine may require intellectual exertion and reasoning skill, legal practice requires an even temperament, good character, decency, propriety and appropriate living. Many applicants to the Bar believe that their academic achievements in law school demonstrate their fitness to practice law in our State. They are wrong. Our State does not condition law practice on intelligence alone; rather, it also conditions law practice on being a respectable person. This requirement perplexes many young applicants. For that reason, today we present a primer to guide hopeful applicants as they navigate their way through the bar application requirements.

In New York, lawyers must be both smart and decent. Anyone can pass law school tests and write essays. Being smart is the easy part. But not everyone can be decent. As Bar Examiners, we have a duty to the People of the State of New York to ensure that only the brightest and most moral men and women represent them in legal matters. We do not want our citizens to fall victim to intelligent—but morally bankrupt—attorneys. If we had to choose between a smart lawyer and a decent lawyer, we would choose the decent one every time.

Still, we recognize that New York lawyers must possess some basic intellectual skill. To that end, our Bar Examination tests an applicant’s rudimentary legal knowledge. Our examinations determine whether an applicant knows the elements of a contract, whether res judicata applies to a subsequently-filed lawsuit and whether the parol evidence rule bars contemporaneous oral statements during a contract dispute. Additionally, our examinations test an applicant’s ability to spot key words in page-long multiple-choice questions that enable him or her to correctly—and instinctively—mark the answer in 1.8 minutes or less. Our examinations demonstrate an applicant’s legal intelligence. Applicants should study hard to show their intelligence. We are confident that successful applicants possess the intelligence to skillfully represent their clients in any legal matter.

But intelligence and legal knowledge mean nothing without good character. An applicant may answer every question correctly on the Bar Examination, but if he is a bad person, he will not receive admission to the Bar. To avoid unnecessary exertion, we do not allow applicants to demonstrate their intelligence to us until they have demonstrated their character. Because character is more important than intelligence, we must certify an applicant’s character before allowing him or her to sit for the Bar Examination.

One cannot study how to be a good person. One either lives correctly or one does not. Our Bar Examiners determine whether an applicant has decent character. They know whether an applicant is fit to practice law in our State. Yet many applicants do not know how to demonstrate their good character. They know how to study evidence exceptions and civil procedure rules, but they do not know how to prove that they are decent people. In New York, we want our lawyers to be moral, decent, upstanding, forthright, honest and loyal. We believe our young applicants should know how to demonstrate these qualities to us. Below, we enumerate qualities that demonstrate the “character and fitness” necessary to practice law. We also discuss why these qualities matter in legal practice.

Good lawyers are honest. Our Bar Examiners will look to see that an applicant has lived his or her life with proper regard for truth in his written and oral representations. To that extent, we want to see lawyers who have lied on their resumes, lied to their employers and deceived their creditors. We want to see lawyers who have committed criminal fraud and stolen from their friends. In short, we want to see applicants who know how to bend the truth in every situation. A good lawyer respects the truth. That means the ability to convincingly lie, misrepresent, mislead, distort and deceive.

On the other hand, we do not look with favor upon applicants who “never tell lies” or who maintain a principled devotion to the truth in every situation. In our State, lawyers must be flexible in client service. No one wins when everyone tells the truth. In fact, people do not expect lawyers to tell the truth. Employers, too, do not want the truth every time. They want to hear about successes, and great success is rarely possible through truth alone. Additionally, no one even makes it into law school without having lied a few times along life’s way. To that extent, our Examiners carefully screen out applicants who demonstrate an unhealthy devotion to absolute honesty.

Good lawyers are responsible. Our Bar Examiners scrutinize an applicant’s personal and financial history to determine whether the applicant respects his or her obligations. We also look to see whether the applicant lives a decent, conventional lifestyle that inspires trust. Good applicants respect those to whom they owe obligations. We especially prize applicants who have lived at more than 35 addresses over the past 10 years. We also prize applicants with poor credit scores and numerous outstanding debts. Reproductive activity also indicates responsibility. We positively regard Applicants who do not practice birth control. We especially prize unwed fathers who neglect their child support obligations. We favorably review applicants who quit jobs without notice, leaving their employers to scramble for replacements. We also appreciate individuals who rack up substantial credit card debt with several accounts in collection houses. We accord respect to applicants who receive invoices and never pay them. These applicants demonstrate proper regard for responsible living. By accumulating obligations and skillfully living their lives to avoid them, they show their dedication to responsibility as a lifestyle. By certifying our applicants as “responsible people,” we ensure that our future lawyers will do the right thing when representing clients.

Good lawyers do not break the law. Lawyers have a public duty to enforce the law by example. They also must recognize that the law holds them to a higher standard than laymen. To whom much is given, much is expected. In order to support these ideals, applicants to the Bar in this State must demonstrate proper regard for legal authority and the moral rules that sustain our society. In that light, we favorably regard applicants with substantial prison history for violent crimes and sexual predation. Lawyers with firsthand experience in the criminal justice system will better represent clients in similar positions. Additionally, we look to see whether applicants get into brawls, fights or beat their spouses. Violent, abrasive, contentious and strident personalities befit the legal profession. In the law, clients seek favorable results through adversary justice. Applicants with a history of violence, discord and pugnacity will best serve clients. Our committee accords great respect to applicants with lengthy criminal records. Although applicants with convictions for violent crime tend to be more successful than applicants convicted for nonviolent crime, any crime is better than none. Additionally, conviction for nonviolent crimes such as fraud, theft, burglary, money laundering or fortune telling serve as probative evidence that the applicant is fit in other character areas, such as honesty and responsibility. A convicted securities fraudster, for instance, shows that he is both honest and responsible.

On the other hand, applicants without criminal records face a difficult road. Our committee seeks applicants who respect the law. If an applicant does not break the law, he tells us that he fears the law rather than respects it. Lawyers in our State must be willing to take chances in life. Those who do not break the law mark themselves as cowards who do not live properly. Our reviewers do not look favorably upon individuals who have not served time in prison. Without a felony criminal record, applicants must show their good character in other ways, such as substantial outstanding debt, crude disrespect for parents or teachers, gross irresponsibility, failure to pay child support, residence at over 50 addresses in 5 years, brazen contempt for the police or numerous misdemeanor violations, such as public urination, drunk driving, indecent exposure, disturbing the peace or lewdness. In short, applicants must show their respect for the law by demonstrating that they know how to break it.

Good lawyers must be sober, thoughtful and temperate. To ensure that our State admits only good people to the Bar, our committee carefully examines every possible source to determine that applicants regularly drink alcohol and use prohibited drugs. Citations for underage drinking are especially helpful in this regard, since they indicate that the applicant has imbibed regularly since before age 21. Evidence tending to show that applicants shoot heroin, smoke crack or marijuana, snort cocaine, pop prescription painkillers or ingest mind-altering chemicals strongly weighs in an applicant’s favor. Applicants can provide this evidence by securing sworn affidavits from acquaintances testifying that they saw the applicant using drugs at a particular time and place. Hearsay statements or rumors will not suffice to prove that the applicant properly abuses drugs or alcohol, although an applicant’s own sworn statement that he drinks at least two (2) six-packs of beer (not light beer) per weeknight will satisfy our examiners. In short, good attorneys maintain their composure with drugs and alcohol. Our citizens deserve legal representation through attorneys who know how to drink. Our committee ensures that only the drunkest advocates represent their legal interests before the courts of the State of New York.

Tea-totaling applicants face a difficult application challenge. Our committee does not look favorably upon attorneys who do not drink or use drugs. Practicing law is stressful. Drugs and alcohol ease stress, allowing attorneys to better serve their clients. Additionally, drugs and alcohol ease social inhibitions. Our committee certifies that future attorneys are jovial, outgoing, gregarious and charming. Alcohol enables lawyers to project the proper energy on their clients’ behalf. On the other hand, nondrinkers are generally stodgy, ill-humored, cold, distant, tongue-tied and uninteresting. Good lawyers must retain the ability to speak fluently and charmingly. Alcohol and drugs ensure their fluency and charm. When we say “character and fitness,” we mean that our applicants must be “fun, entertaining, fast-talking” characters. In our State, we do not want “Stick-in-the-Mud” characters; we want dynamic, outgoing and rambunctious characters.

Good lawyers must be respectful, polite and courteous. Our committee examines evidence tending to show that our applicants curse, scream, jump up and down, whine, bicker, spit, backbite, slander, gossip and raise their voices unnecessarily. Good lawyers must possess the character necessary to browbeat and verbally intimidate their opponents to win their cases. Evidence tending to show an applicant to be an ornery, irascible, argumentative, discordant and unpleasant person carries special weight in our application process. Our citizens want determined legal representation. We certify that lawyers in our State will be angry, combative people likely to kick and scream, as well as to present cogent points based in logic and law.

By contrast, we look with disfavor upon tranquil applicants who politely treat others with unequivocal respect. In this profession, winning matters. In our adversary system, there is no room for quiet respect. To that extent, we frown upon applicants with a proven record of collegiality, warmth, compassion and grace. These qualities reflect a character unfit to practice law.

We hope that these explanations provide suitable guidance for prospective applicants to our Bar. We recognize that the Character & Fitness portion of the New York State Bar Examination may seem daunting. But we encourage you to stay the course. Please ensure that you carefully assemble all the tangible evidence necessary to show your honesty, integrity, loyalty, decency, normalcy, sobriety and good morals. An organized applicant will always receive certification more readily than applicant who cuts corners when submitting necessary evidence. In that light, we encourage you to secure your relevant criminal records, leases from past addresses, employer complaints, negative credit reports, subzero bank statements, forged checks, affidavits disclosing drug use, Personal Statement of Sufficient Alcohol Consumption (PSAC), domestic disturbance citations, child support default judgments and other written materials substantiating your good character.

We wish you luck as you make your way through the application process.

No comments: