Admission to the Bar -
Character and Fitness Considerations

By Kathryn L. Allen
and Jerome Braun

When a client walks into a lawyer's office, he has the right to assume both that the lawyer is competent in the law and that the lawyer will conduct the client's matter in a professional and ethical manner. The responsibility of ensuring that those who seek licensure as attorneys are competent and are fit to be licensed is shared by two separate and equal boards: the Board of Bar Examiners, which deals with the questions of the applicant's competence; and the Board to Determine Fitness of Bar Applicants, which inquires into the character and fitness of the applicant.¹

The Fitness Board, as it is commonly called, was established by the Supreme Court in 1977 to assume the responsibility of making a fitness determination with respect to each applicant for admission to the practice of law in Georgia, a task which up until then had been placed on the judges of the superior courts. Because of the importance of protecting the public from those who might disserve it and the profession, all applicants must be certified as fit to practice law by the Fitness Board before they may apply to the Board of Bar Examiners to write the examination.² Although the number of applications received each year has declined from a high of 1,600 in 1977, approximately 1,000 are still received and processed each year by the Office of Bar Admissions, which serves as the staff for both the Fitness Board and the Bar Examiners.

In the ordinary case, the investigation is conducted through the mail and principally involves verification of the responses given on the applicant's questionnaire. When warranted, the investigation may involve personal interviews with those who have knowledge of the applicant, or review of court or administrative agency records. In every case the applicant's fingerprints are checked. In reviewing the results the investigation the Fitness Board focuses primarily on the applicants's:

As the first step in the investigation, each applicant is required to complete a questionnaire designed to elicit information about his education, work experience, military service, traffic record, criminal record, credit experience, litigation to which he has been a party, and regular treatment for mental or emotional problems. The application is extensive and requires disclosure of information that the applicant may prefer not to disclose. Disclosure of this information is essential to the Board's investigation, but the applicant can be secure in the knowledge that his past, whether good or bad, in almost every case goes no further than the Board. The application and all information turned up by the investigation are confidential and may not be disclosed to anyone other than the Fitness Board and those of the staff actually processing the application.³ There are, however, some instances in which the applicant's file can be released to third parties. For example, in an instance of attorney discipline in which the veracity of disclosures made by the attorney on his or her application for certification is in question, a copy of the application may be released to the General Counsel of the State Bar of Georgia.⁴ Also, the application and the results of the Board's investigation may be released to the bar admissions authority of a sister state on the written authorization of the applicant.⁵ Of course, if the applicant brings the investigation and hearing into issue in another forum, confidentiality is waived.⁶

Applications are routinely processed on a "first come, first served" basis. They are initially screened to ensure that the applicant meets the education requirements for the bar examination⁷ and to determine if there are any obvious problems which might warrant non-routine handling. These include:

Applications which on their face show that the applicant does not have the requisite education to write the bar examination are returned to the applicant along with the filing fee, because there is little point in conducting an investigation when the applicant would not be eligible to take the examination even though certified.

When either in preliminary review or later in the course of the investigation, information calling the applicant's fitness to practice law into question comes to light, the Board will usually ask the applicant to appear before it for an information discussion. Frequently, the Board is told about or learns of derogatory information which is not of sufficient gravity to warrant denial of certification, perhaps because of passage of time since the incident or because the incident was of a minor nature or was an isolated act in otherwise exemplary life. In many of these cases the Board will forego an interview and certify the applicant upon completion of its investigation.

The interview is nothing more than an informal discussion⁸ with the applicant about his application and the problems or concerns that the Board has. It is tape recorded and the applicant may be represented by counsel if he wishes. Because it is non-adversarial, the Board's counsel is never present at an informal interview, and only rarely do applicants have counsel with them.

Problem applications are not the general rule. Even when there are problems, most turn out to be non-disqualifying; the informal interview resolves any concerns the Fitness Board may have, and certification ensues. Of the approximately 11,000 applications reviewed by the Board since its inception, 270 applicants have been asked to meet informally with the Board, and of these, only 70 did not receive certification following the interview.

When an applicant is not certified after an interview, he is told that a tentative decision to deny certification has been made and that no final decision will be made until a formal hearing on the application has been held, if the applicant wishes one.⁹ If the applicant does request a formal hearing, the Board will draft and serve upon the applicant specifications which, if sustained at the hearing, will be the basis of denial of certification.

In preparing for the hearing, the applicant may make use of the Board's subpoena power,¹⁰ and both the applicant and the Board may serve interrogatories upon any witness not in the state.¹¹ The answers to the interrogatories and any exhibits submitted with them are admissible at the hearing.¹²

The hearing may be conducted by an attorney member of the Board or by the Board en banc, or since 1984, by a special master appointed by the Supreme Court. The proceeding is adversarial in nature and is stenographically reported. The Board is represented by an attorney from the Attorney General's Office, and applicants also are encouraged to be represented by counsel. The general rules of evidence are applicable in formal hearings, but they are not strictly followed, because the purpose of the hearing is to reach the truth and to determine fitness or non-fitness without causing undue embarrassment to the applicant.¹³ The burden of finally establishing his or her fitness to practice law rests on the applicant, but the Board usually presents the facts that initially caused tentative denial, and in order to meet his burden, the applicant must present evidence in refutation or in mitigation of these facts.

The hearing officer makes findings of fact and recommendations to the Board, which, however, are not binding on the Board. For example, the Board may choose to deny certification when the recommendation is otherwise, though it has rarely done so. Similarly, the Board need not follow an adverse recommendation. It may, in lieu of denial of certification, require a period of rehabilitation.¹⁴

Since 1977, 43 formal hearings have been held, and 31 resulted in denial of certification. An applicant who is finally denied certification may appeal as a matter of right to the Supreme Court.¹⁵ Appeals are docketed on a separate docket which is not a public record, so confidentiality is maintained¹⁶ unless the Court publishes an opinion.¹⁷ Opinions are, however, rarely issued.

An applicant who has been finally denied certification is not necessarily precluded forever from becoming licensed as an attorney in Georgia. The Board may accept a new application once three years have passed since denial.¹⁸

Because the Fitness Board was brought into existence only recently, the law in the area is still developing. Reported cases from other states, however, show a variety of grounds for disqualification that have not yet been presented to or addressed by the Georgia Supreme Court. In Arizona, for instance, an applicant was denied admission to the bar on evidence that he had brought repetitive and groundless lawsuits against federal and state officials charging them with fraud and misconduct. Even though a psychiatric evaluation showed that this conduct was symptomatic of a personality disorder, the Arizona Supreme Court found that these traits also demonstrated "'a lack of those qualities of responsibility, candor, fairness, self-restraint, objectivity and respect for the judicial system which are necessary to the orderly administration of justice...'"¹⁹ This particular issue has not been addressed in Georgia. The related issue of mental disease affecting an applicant's ability to withstand the stresses of the practice of law has been litigated in Georgia but has not resulted in an opinion from the Supreme Court. Two applicants with diagnosed schizophrenia were denied certification after a hearing. One who suffered from manic depressive illness which was well-controlled with lithium carbonate was, however, admitted.

Candor

At the beginning, many applicants denied character certification were disqualified apparently because of their failure to be candid with the Fitness Board. The case of In re Beasley²⁰ was the first opinion issued by the Georgia Supreme Court after the Board's inception. It demonstrates the importance attached to candor by the Fitness Board and by the Court, although several other factors contributed to disqualification. The applicant's failure to honor a court order to pay child support and his failure to attend the hearing except by counsel were also instrumental factors in his failure to meet the requisite character standard.

The decision in Beasley is noteworthy in its procedural holdings as well. The Court stated that the burden of proving good moral character rests on the applicant and that placing the burden on him is constitutional. Further, because the procedure is not criminal in nature, it is constitutionally permissible for the Fitness Board to draw an adverse inference from the applicant's failure to appear. Finally, the test to be applied in determining whether misstatements and omissions by the applicant to the Board are grounds for disqualification is whether they are willful or inadvertent.

Lack of candor has played a part in two other reported cases,²¹ but the incidence of candor problems has decreased in the last few years, probably because of an increased awareness on the part of applicants that the Fitness Board and the Supreme Court view candor as extremely important. A number of the early applicants omitted or misstated their criminal records in instances when the criminal conduct itself may not have been disqualifying. The fact that the applicant was not candid was usually far more indicative of a character flaw than was conviction of a crime which may not have involved moral turpitude. The Fitness Board and Office of Bar Admissions have been active in publicizing to law students and to the bar the importance of candor,²² and apparently the lesson has been well taken. The number of interviews and hearings in which candor is at issue has decreased dramatically.

Criminal Conduct

Applicants who have been charged or convicted of criminal activity raise concerns in the certification process. Does the crime or crimes evidence a character trait inconsistent with that integrity and fidelity the public is entitled to expect from an attorney? Is the applicant still serving a sentence imposed upon him by the State for commission of crime? Has the applicant been "rehabilitated"?

While it is fairly obvious that commission of a felony is cause for an in-depth inquiry, sometimes a series or pattern of minor crimes may be indicative of a different kind of fitness problem. A number of traffic and DUI arrests or convictions might raise an inference of disrespect for the law or an inference that the applicant is addicted to alcohol or drugs. If that inference is not rebutted during the investigation, interview, or hearing stage, it could result in disqualification, at least temporarily. Active substance abuse or addiction has long been recognized as an unwarranted danger to the client's interest in diligent representation.²³

As with any other professional entrusted with the money of others, attorneys must have the highest sense of fiduciary responsibility. Crimes involving theft and fraud, then, raise a presumption that the applicant lacks that required trait. Within the theft category, depending on the circumstances, some crimes may be seen as more serious than others. For example, larceny after trust or embezzlement would reflect a grave character flaw and it was the ground for one applicant's denial in Georgia. At the other end of the spectrum, failure to file a tax return might be perceived by some as a minor infraction relating only to the personal not the professional life of an attorney. Yet the Supreme Court has expressed the view that intentional failure to file a return "for the purpose of avoiding tax liability when there are taxes due" involves moral turpitude sufficient to justify state bar discipline²⁴ and it probably would disqualify an applicant for admission.²⁵

Except for one exception discussed below, there is no accurate way to predict whether a single conviction which is disclosed to the Fitness Board would disqualify an applicant. The exception is that an unpardoned felon, by Board policy, will ordinarily not be certified. An applicant who has pleaded guilty to shoplifting as an adult, but who has produced voluminous evidence of good character and mitigating circumstances can ordinarily anticipate certification, as can one whose criminal record is limited to minor infractions at an early age, when the applicant is candid and produces satisfactory evidence of rehabilitation. On the other hand, in one Georgia case, a series of seven convictions, including four for misdemeanor theft, combined with less than full disclosure of the applicant's criminal record, resulted in a denial of certification.

In that case, In re Cason,²⁶ the Supreme Court was not directly faced with the unpardoned felony exception mentioned above, but it discussed a similar rule in Florida which is required by that state's constitution.²⁷ In its discussion, the Court left open the question whether such a rule might be required by the Georgia Constitution.²⁸Although Cason was written in the context of the 1976 Constitution, the provision cited, former Code Section 2-501, has been carried forward into the current Constitution.²⁹ Cason also stands for the proposition that an arrest not resulting in conviction cannot, without proof that the applicant was in fact guilty of the crime charged, serve as the basis for disqualification.³⁰

The Fitness Board is not foreclosed, however, from considering whether the applicant did commit the crime, although no conviction resulted.³¹ If adjudication of guilt was withheld pending successful completion of probation, as a first offender or youthful offender statute,³² or if the charge was dismissed for technical, non-substantive reasons, the Board may look to the substance of the charge in assessing fitness. A similar rule is applied generally to other licensed professionals.³³

Rehabilitation

The decision in Cason is most noteworthy for its holdings on rehabilitation. There have been quite a few cases decided throughout the country on this subject and the analysis has varied widely. The current view in many states that rehabilitation is always possible³⁴ is a dramatic change from the older view that some crimes, if unpardoned, remain always as a blot on the applicant's character and prevent admission to the bar.³⁵ The current view apparently reflects the emphasis on individual rights of the 1960's and 70's, and there is some indication that courts and character committees may retreat from this position as not protective enough of the public interest in an ethical and upright bar.³⁶

Cason has been recognized as providing a definition for rehabilitation that had been lacking in the opinions of other courts on the subject.³⁷ The Court in Cason formulated the requirements for rehabilitation in the following manner:

For bar fitness purposes rehabilitation is the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society. See Webster's Third International Dictionary (Unabridged) (1967). Payment of the fine or service of the sentence imposed, and not committing further crimes, standing alone do not prove rehabilitation. Merely showing that an individual is now living as and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. Positive action showing rehabilitation may be evidenced by such things as a person's occupation, religion, or community service. The requirement of positive action is appropriate for applicants for admission to the bar because service to one's community is an implied obligation of members of the bar. See 241 Ga. 643, 654; Rule 3-102, EC 2-2.³⁸

This standard is not limited to applicants for the bar; attorneys seeking reinstatement must also show by clear and convincing evidence that they have been sufficiently rehabilitated to justify replacing them in a position of public trust.³⁹ Rehabilitation is an elusive concept and has been the subject of a number of commentaries. an informative chart that appeared in one commentary has been reprinted at the end of this article by permission of the Bar Examiner.⁴⁰

Fiscal Irresponsibility

A number of applicants have been denied certification at least in part because of non-criminal conduct such as fiscal irresponsibility, which reflects adversely on their integrity in dealing with the money of others. Fiscal irresponsibility may be evidenced by civil fraud in a bankruptcy proceeding,⁴¹ walking away from business debts,⁴² or "engaging in a highly irresponsible course of conduct as president" of a mortgage banking corporation which conduct victimized innocent people.⁴³ One of the more common reasons why the Fitness Board asks an applicant to an informal interview is the failure of the applicant to repay or make arrangements for the repayment of government sponsored student loans. Failure of repayment suggests that the applicant's word is not reliable, and loans not repaid mean less money is available for loans to current students.

In Florida, fiscal irresponsibility, in the context of resort to bankruptcy to avoid paying student loans, may result in denial of admission. If the circumstances surrounding the bankruptcy suggest that the applicant's intent was to defeat creditors, denial is justifiable.⁴⁴ On the other hand, if the applicant had made a good faith effort to repay the loans but circumstances had forced a resort to bankruptcy, the federal policy of the debtor's "fresh start" overrides the state's interest and the supremacy clause mandates admission,⁴⁵ if there are no other character problems.

A closely related problem is failure to pay court ordered child support. Since Beasley, failure to pay child support has been a basis for denial, because this conduct reflects disrespect for the judicial system as well as fiscal irresponsibility. A number of the earlier applications turned up failure to pay child support as a fitness problem but, like lack of candor, this now occurs less frequently, probably because applicants are more aware that it can be disqualifying.

As can be readily seen from the case law, character and fitness issues tend to overlap and continue to evolve so that accurate predictions are difficult if not impossible. The discussion above, however, illustrates that several constants can be identified. Failure of candor is almost always fatal to the application, and conduct evidencing disrespect for the courts, the legal system, or the money of others is dealt with severely.

FOOTNOTES