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A game of craps: Law school, bar admissions a gamble for applicants with records

Heath Hamacher//June 13, 2018

A game of craps: Law school, bar admissions a gamble for applicants with records

Heath Hamacher//June 13, 2018

If Marlowe Rary had known in 2011 what he eventually learned the hard way, he probably never would have applied to law school.

Nearly a decade earlier, Rary, a “typical invincible teenager,” had a couple of run-ins with authorities that led to separate misdemeanor arrests for marijuana possession and driving under the influence—information that he would eventually have to disclose to law schools and the North Carolina Bar Association.

“I think the biggest gripe I have is no one really tells you about the character and fitness portion of the bar before you decide to go to law school,” Rary said.

He was first exposed to the bar application process so late in his education, he added, that despite developing concerns about how the bar might weigh his convictions, he felt his only choice was to stay the course and roll the dice.

“It’s really stressful because they don’t have any set-in-stone requirements or disqualifiers,” Rary said. “You are at the mercy of the team that interviews you.”

What becomes of the graduate who has invested thousands of hours and dollars earning a law degree, only to lose a high-stakes game under vague and ambiguous house rules?

Fortunately for Rary, he doesn’t know. The North Carolina Board of Legal Examiners found him fit to practice law, and today he does so out of his Charlotte office.

But for many, especially those with longer rap sheets or more serious offenses and incarceration, the fear of the unknown can be a self-imposed barrier.

They assume that their past is a per se prohibitor and that someone like them—an ex-offender, a felon, a convict—has no business aspiring to such heights. (Note: Without intending to attach a permanent label to any class of people, Lawyers Weekly will use several commonly used terms interchangeably in referencing men and women who have an arrest record.)

“Numerous people will say, ‘You know, I just didn’t think I had an opportunity because it’s the law,’” said Dexter Smith, associate dean of admissions and financial aid at the Campbell University School of Law. “A lot of people will self-select out.”

A survey conducted by Stanford University’s Criminal Justice Center corroborates that position. Of 100 formerly incarcerated college graduates and criminal justice leaders surveyed, “many” cited moral character requirements as the reason they did not apply to law school, despite their desire to do so.

It is not that these men and women, compelled to leverage their personal experiences to serve their communities, necessarily believe that they are unfit. But they believe that they will be seen as unfit by a coterie of lawyers who can’t possibly understand their unique fitness.

No standard standards

In a recent cover story titled “From Convict to Counsel,” the National Law Journal discussed the hurdles faced by ex-convicts hoping to become lawyers. Like every applicant, they are required to demonstrate a sufficient degree of trustworthiness. Unlike others, they often stand before character judges already swathed by a rebuttable presumption of unfitness.

These applicants, often hyperaware, expect enhanced scrutiny. They understand the heavier burden they bear. What they don’t know, since each jurisdiction sets its own standards, is what exactly it is that they need to prove.

According to the NLJ article, Shon Hopwood, a criminal law professor at the Georgetown University Law Center, said one problem is that states fail to adequately define “rehabilitation.” Additionally, fitness evaluations are conducted behind closed doors, by lawyers who lack the appropriate level of experience and training regarding criminal law, substance abuse, mental health and recidivism.

“With little transparency around the process, decisions often appear arbitrary,” the article states.

Clear as mud

Lawyers Weekly attempted, with a modicum of success, to pierce the veil of licensing bodies’ logic in the Carolinas.

In South Carolina, the state Supreme Court’s Committee on Character and Fitness is tasked with determining whether an individual is morally worthy, but its thoughts on ex-offenders is an enigma. If any sort of litmus test is applied, no one is talking.

Committee Chairman Kirby Shealy III, an attorney with Adams and Reese in Columbia, did not respond to a phone message.

Emails to several other committee members also went unreturned.

In North Carolina, the Board of Law Examiners said in a letter that it “utilizes the same investigative and evaluative process for determining character and fitness for all applicants seeking admission.” Chair Beth Fleishman cited several applicable statutes, none of which specifically address how convictions are weighed or what degree of rehabilitation is required.

The law states that the board is responsible for ensuring that all applicants “possess the qualifications of character and general fitness requisite for an attorney and counselor-at-law.”

The question remains: What does that mean?

For ex-offenders, might a felony assault conviction from 2012 render him unfit? Or a dismissed shoplifting charge from last year? Bad checks or reckless driving from 1998?

It is unclear.

In fairness, perhaps there simply is no hard and fast answer for officials to provide. While unlikely that a strictly mechanical process would be favored by grace-seeking applicants, many are in the market for some degree of guidance. Otherwise, options for the uninformed remain the same—turn away from the profession or prepare their cases and hope for the best.

Not much to offer

Before an applicant takes on any state bar, she has to make it past a law school admissions committee. As for the eight law schools in the Carolinas, willingness to discuss the manner in which ex-offenders are examined range from refusal to candor.

When Lawyers Weekly initially reached out to Duke Law, a spokesman said that he would be happy to try and help. But after receiving our list of questions, the school declined to “participate” in the story.

North Carolina Central University did not respond to submitted questions.

Wake Forest declined an interview request, but emailed a statement: “We consider each applicant on a case-by-case basis.” If there is any information to be gleaned by the former offender, it is unclear.

Something to believe in

According to Campbell’s Smith, the character and fitness question on the Raleigh school’s application mirrors that of the state bar. There are no automatically disqualifying offenses, Smith said, but its admissions committee expects full disclosure and will assess each offense on its own merit. While the school aims to avoid leading on an applicant whom it believes might later be dinged by the NCBLE, there is no sure-fire way of knowing what the bar will conclude, Smith said.

Asked if the school had admitted ex-offenders in the past, Smith was direct.

“Not many, but there were situations where students had fallen into certain situations, served their penalty, and been rehabilitated,” Smith said. “We admitted them and they have done well.”

At the University of South Carolina law school, associate dean for student affairs Susan Palmer said that USC also has no automatic disqualifiers, though it looks “especially closely at allegations of sexual assault or behavior that could pose a risk to the safety of our community.”

It’s unclear whether the school would deny admission for mere allegations or arrests that did not lead to convictions, as school officials did not respond to a request for clarification.

But at Campbell, Smith said that the school would seek all pertinent information about a case, no matter its disposition.

“Sometimes charges are reduced, sometimes the actual issue can’t be gleaned from the record so we do seek additional information,” Smith said. “We ask for the charge, the disposition, an explanation of the arrest, stop, etc. and an explanation and record of the resolution.”

USC has also admitted former offenders, Palmer said, adding that the school carefully reviews such files and considers factors such as the seriousness of an offense, when it occurred and what the applicant has accomplished since, and evidence of remorse, restitution, and rehabilitation.

At Elon, an applicant’s candor, rehabilitation, and growth from the experience can weigh in his favor, according to school officials, who said that they also consider multiple factors related to the offense(s) when making a decision.

Just as a track record of improved grades and an upward trajectory in an applicant’s GPA can offset earlier, lackluster grades, a demonstrated track record of accomplishment, evidence of rehabilitation and a clean criminal record can potentially establish that an applicant’s character and fitness qualifies for admission to law school,” the school said in an email.

Something up front

Many states, including South Carolina, will provide prospective law students advance rulings or opinions regarding their past conduct.

Where there is a fitness question, USC will “strongly suggest” that an applicant seek an advisory opinion from the Supreme Court, Palmer said. Jacqueline Bell, assistant dean of admissions at the Charleston School of Law, said that she has also referred applicants to the court.

While the court’s character and fitness committee did not respond to requests for comment, its website states that an enrolled law student “who has a character problem” that might disqualify him from practicing law may file a provisional application that will initiate a committee investigation and decision regarding his fitness to practice law. It’s unclear whether these opinions are binding, but Bell said they at least offer an idea of an applicant’s chance of bar approval.

In North Carolina, the NCBLE made clear that it does not evaluate law school applicants. But Kelly Smith, associate dean for student affairs at the University of North Carolina School of Law, said that students planning to practice outside the state can seek an opinion from their respective jurisdictions.

Supreme guidance from afar

Hopwood, the Georgetown law professor, counsels ex-offenders who either want to go to law school or who are preparing to stand before a character and fitness board.

One of his mentees is 40-year-old Tarra Simmons, a former drug addict who spent three years in jail and prison for crimes including theft, assault, and gun possession. After her release, Simmons graduated from the Seattle University School of Law, where she earned the dean’s medal and became the school’s first Skadden fellow. She serves on a statewide reentry council and runs her own nonprofit reentry organization. Despite that and nearly six years of sobriety and exemplary conduct, the Washington State Bar Association denied her application to sit for the July 2017 bar exam.

Recently in Charlotte for a philanthropy conference, Simmons sat down with Lawyers Weekly and talked about how she petitioned for, and received, an en banc Washington Supreme Court review of the board’s decision. She enlisted Hopwood to represent her. In addition to going to law school in the same town (Hopwood graduated from the University of Washington School of Law), the pair had something else in common—felony convictions.

Now a respected advocate, Hopwood began his legal career as a jailhouse lawyer while serving more than a decade in federal prison for bank robbery.

In a published opinion, the Washington Supreme Court voted 9-0 to allow Simmons to sit for the bar exam, which she passed in February. She will be sworn in June 16.

‘Dangerous instrument’ for denial

Though the Washington Supreme Court found clear and convincing evidence that Simmons is morally fit to practice law, it declined to create a bright-line rule regarding what constitutes sufficient rehabilitation and recovery for those with records, citing the “individualized inquiry of character and fitness, and the complexity of recovery.” (Hopwood and others have lobbied for a presumption of fitness five years after a conviction, barring unusual circumstances.)

It noted, however, that while good moral character is essential for the ethical practice of law, it is a “vague qualification” easily adapted to fit personal views. It “can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law,” Justice Mary Yu wrote.  

Rary, the Charlotte attorney, said that if he had known about the character and fitness requirements beforehand, he may have become a school principal or pursued a doctorate in education.

“When you have criminal charges, you are truly taking a chance that the bar is going to let you practice law,” he said.

Conversely, many ex-offenders contemplating law school want to know those requirements, so that they might better prepare themselves to meet them.

Said Hopwood to the Washington court: “Character is not static. People change. And the law should recognize that.”

The court did, writing that it has grown in its understanding of what makes a bar applicant worthy of admission.

“Today, we affirm the principles that for purposes of bar admission, a moral character inquiry is determined on an individualized basis and that there is no categorical exclusion of an applicant who has a criminal or substance abuse history,” Yu wrote.

Like the high court nearly 3,000 miles away, maybe the law here does recognize that people can change. Perhaps the perceived implicit bias among admissions committees and bar associations is more figment than fact.

But without a certain amount of transparency regarding the decision-making process, only those behind the closed doors really know.


Follow Heath Hamacher on Twitter @NCLWHamacher


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