a Practical Framework for Evaluating Remorse in the Bar Admission [PDF]

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Apologies and Fitness to Practice Law: a Practical Framework for Evaluating Remorse in the Bar Admission Process Mitchell Simon, Nick Smith and Nicole Negowetti* I. Introduction: an Overview of The Problem of Apologies in Character and Fitness ............................................................... II. A Review or The Varying and Inconsistent treatments of Apologies in Character and Fitness Cases............................... III. The Meaning of Apologies .......................................................... IV. A Practical Framework for Expressing and Evaluating Apologies in Character and Fitness Cases ................................... V. Concluding Considerations Regarding The Purpose of Character and Fitness Review ..................................................

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I. Introduction: an Overview of the Problem of Apologies in Character and Fitness Virtually all law students are aware of the bar exam requirement.1 A less well-known requirement is that every state bar currently requires character certification as a prerequisite for bar admission.2 Each state conducts its * Mitchell Simon is a Professor of Law at University of New Hampshire School of Law and Of Counsel to Devine, Millimet and Branch. He has written and spoken extensively on issues of professional responsibility. Nick Smith is an Associate Professor of Philosophy at the University of New Hampshire. He is the author of one of the leading books on remorse, I Was Wrong: The Meaning of Apologies (Cambridge University Press 2008) and a former law clerk to the United States Court of Appeals for the Third Circuit. Nicole Negowetti is an Assistant Professor of Law at Valparaiso School of Law, and a former law clerk to the New Hampshire Supreme Court. This article revises and expands on arguments Professors Smith and Simon have advanced in prior publications. 1. The standards for measuring intellectual fitness are generally uniform among the states, which typically require completing at least three quarters of a baccalaureate degree at an accredited college or university, graduating from an approved law school, and passing a bar examination. Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admissions, 39 Cal. W. L. Rev. 1, 11 (2002). For one innovative alternative to the exam requirement, see the Daniel Webster Scholar Program, which is a joint effort of the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and the New Hampshire Supreme Court. See http://www.piercelaw.edu/websterscholar; John Burwell Garvey and Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke F. L. & Soc. for Law & Social Change 101 (2009). 2. See, e.g., Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 493 (1985); National Conference of Bar Examiners Comprehensive Guide to Bar

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own character investigations to determine whether an applicant is morally fit to practice law.3 The procedures used to determine moral fitness to practice law vary in scope and substance from state to state.4 Despite these differences, the most common method for determining whether a bar applicant possesses the requisite good moral character to practice law is for a bar or court appointed character committee to examine a variety of information regarding the applicant.5 When applicants seek admission to the bar, they have placed their character at issue.6 Therefore, the applicant bears the burden of producing information proving good moral character.7 Information concerning the applicant primarily comes from standardized bar applications, interviews, and letters of recommendation.8 The applications will ask questions concerning educational and employment history, finances, criminal and civil misconduct, mental health problems and addictions.9 Essentially, bar character committees determine an applicant’s good moral character by “assessing all of the relevant facts before them.”10 If this preliminary character investigation reveals that the application is problematic in any way, “heightened scrutiny” by the bar admission committee is typically triggered.11 An applicant who does not meet the state’s standard of good character is provided a formal hearing.12 At this hearing, the applicant has the right

Admissions vii, III.7 (2009), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/ Comp_Guide/2011_CompGuide.pdf [hereinafter NCBEX Guide]. 3. Marcus Ratcliff, The Good Character Requirement: A Proposal For a Uniform National Standard, 36 Tulsa L.J. 487, 487 (2000). 4. Rhode, supra note 2, at 506; Ritter, supra note 1, at 14. For example, character investigations may be undertaken by a state bar association while the applicant is in law school, prior to sitting for the bar examination, or subsequent to successful completion of the bar examination. In most states, the bar association processes the application; however, in eleven states a separate agency evaluates character and fitness. NCBEX Guide, supra note 2, at 6-7. 5. See Rhode, supra note 2, at 505. 6. Ratcliff, supra note 3, at 492. 7. NBEX Guide, supra note 2, at viii. See, e.g. Minnesota Rules for Admission to the Bar R. 5B(2), (“The applicant bears the burden of proving good character in support of the application.”); Regulations of the Connecticut Bar Examining Committee Edition of 2008, Art. VI-3. Burden of Proof, available at http://www.jud.state.ct.us/CBEC/regs.htm#VI (“The applicant bears the burden of proving his or her good moral character and fitness to practice law by clear and convincing evidence.”). 8. See Richard R. Arnold, Presumptive Disqualification and Prior Unlawful Conduct: The Danger of Unpredictable Character Standards for Bar Applicants, 1997 Utah L. Rev. 63, 65 (1997). 9. See, e.g., Petition and Questionnaire for Admission to the Bar of New Hampshire, available at http://www.courts.state.nh.us/nhbar/petition.pdf. 10. Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 Notre Dame L. Rev. 67, 69 (1984). 11. Ritter, supra note 1, at 15. 12. See, e.g., Rules for Admission of Attorneys, Oregon Supreme Court R. 9.35 available at http://www.osbar.org/_docs/rulesregs/admissions.pdf.

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to respond to the matters asserted or charged in the notice, including the right to present evidence and to question witnesses.13 Once an applicant’s conduct raises an issue of fitness to practice law, especially if prior misconduct involved unlawful acts, he or she may be obliged to demonstrate rehabilitation.14 One significant factor in determinations of rehabilitation and fitness is whether the applicant expresses and demonstrates remorse.15 Scholars have challenged the efficacy of evaluating an applicant’s remorse for many years. Deborah Rhode argued that the use of remorse in admission cases is flawed because it is founded on a faulty empirical premise: That “certain attitudes are sufficiently predictive of subsequent misconduct to justify the costs of the certification process.”16 One of this article’s co-authors has argued that use of remorse in cases of youthful offenses “fails to serve the underlying purpose of the process, and is likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors. Additionally, such inquiry muddies an already complex task and adds little, if anything, to the character and fitness committee’s ability to access the applicant’s candor during the process.”17

13. Id. at R. 9.35(6). 14. Application of G.L.S., 439 A.2d 1107, 1117-18 (Md. 1982). 15. See, e.g., id. at 1117 (“The applicant readily admitted that he himself was solely responsible for his participation in and commission of the crime. While he was unarmed and served only as the driver of the get-away car, he recognized no difference in the degree of culpability between himself and the other two persons involved in the crime. Thus the applicant admitted that his criminal acts were morally wrong and indefensible.”); Matter of Peterson, 439 N.W.2d 165, 169 (Iowa 1989) (“Without looking beyond Peterson’s 1988 testimony, it becomes apparent that his initial descriptions of the 1976 incident as a technical and minor assault were attempts to mischaracterize the incident. This testimony displays a callous and indifferent attitude toward an explosive personal confrontation.”); Partin v. Bar of Ark., 894 S.W.2d 906, 909 (Ark. 1995) (“In particular, the Board majority is compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions.”). 16. Rhode, supra note 2, at 545-55. Professor Rhode also criticized the general character system and wrote that “the current administration of the moral character criteria is, in effect, a form of Kadi justice with a procedural overlay. . . The process is a costly as well as empirically dubious means of securing public protection.” Id. at 584. See also Maureen M. Carr, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 Geo. J. Legal Ethics 367, 373 (1995). (“In addition to problems in determining degrees of moral turpitude and wrongdoing, past offenses simply may not be a reliable gauge of present character.”). Further support for this conclusion can be found in a study of Virginia’s revision of its parole system. The study found two factors that had some relationship to recidivism: prior felony drug convictions or prior adult incarcerations. However, it also found that a number of factors commonly used in the admission process-such as age at time of offense, were irrelevant. Interestingly, it found the only demographic factor that was potentially significant to differentiate recidivism among subgroups was gender, a factor that most would agree should not be used in bar admission decisions. See Brian J. Ostrom, et al. Offender Risk Assessment in Virginia 1 (2002). 17. Mitchell M. Simon, What’s Remorse Got to Do, Got to Do with It? Bar Admission for Those with Youthful Offenses, Mich St. L. Rev. (forthcoming 2011).

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Nonetheless, courts have consistently looked to remorse as an admission factor, especially in cases of past criminal conduct.18 A 1985 study of character and fitness decisions showed that in over one-half of the reported cases, the applicant’s effort to atone or expressions of remorse for prior conduct was explicitly discussed.19 Simon’s review of reported cases between 1980 and 2009 involving bar applicants with youthful offenses confirmed this pattern. During this period, 59 out of 128 reported cases analyzed remorse as a decisional factor.20 Interestingly, an applicant’s willingness to express remorse is not often the key to a decision to admit the applicant,21 but the unwillingness to express remorse has been seen by character and fitness committees and reviewing courts as disqualifying.22 Perhaps more significantly, applicants’ refusal to express remorse, even in cases of sincerely held beliefs that they were wrongly convicted or that the

18. Rhode, supra note 2, at 544; In re Nathan, 26 So.3d 146, 147 (La. 2010) (“Petitioner knowingly forged the notary’s signature on her bar application. This fact was not disputed by petitioner; rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because of the stress she was under at the time.”); Application of K.B., 434 A.2d 541, 545 (Md. 1981) (“It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case.”). 19. Rhode, supra note 2, at 544. 20. Simon, supra note 17. A number of the cases not explicitly discussing remorse turned either on alcohol and drug dependency, where remorse does not seem to be relevant, or lack of candor. See, e.g., In re Application of Corrigan, 915 N.E.2d 300, 303 (Ohio 2009) (focusing on the applicant’s alcohol problems and his lack of candor with the Committee). Several of the lack of candor cases involve findings that the applicant was untruthful based on refusal to admit culpability, a concept that is related to remorse; Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) (finding lack of candor when applicant was unable to testify consistently about a plagiarism allegation). 21. See, e.g., In re Application of Grachanin, 912 N.E.2d 1128, 1130-31 (Ohio 2009) (finding that while applicant deserves credit for expressing remorse, he needs more time to demonstrate that his drinking problems are under control); Martin B. v. Comm. of Bar Examiners, 661 P.2d 160, 161(Cal. 1983) (“The State Bar Court also found the 1973 false claim conviction to be indicative of bad moral character, despite petitioner’s free admission of guilt and expression of remorse.”). But see In re Application of Simmons, 584 N.E.2d 1159, 1160 (Ohio 1992) (“We have reviewed the record in this case and are particularly struck, as the board was, with this applicant’s forthright confession of and testimony about his misconduct. However, unlike the board, we are satisfied with Simmons’ regret and renewed commitment to the standards manifested by the Code of Professional Responsibility and, therefore, find nothing to be gained by allowing another year to pass before Simmons may apply for the bar examination.”). 22. See, e.g, Application of Walker, 539 P.2d 891, 897 (Ariz. 1978) (denying admission for failing to make disclosure of failure to register for the draft and for claiming that these acts did not reflect on his character); Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying applicant for his continued insistence on his innocence of charges for which he had been convicted); In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) (Lunberg Stratton, J. dissenting) (“Had he admitted to his deceptive acts, I would agree with the majority. But . . . his refusal to accept the responsibility for these misdeeds demonstrates a deeper character flaw that cannot be cured by time. . . . A lawyer must be honest, ethical, and above reproach. Panepinto clearly has none of these qualities. Therefore, I would permanently deny his application to take the bar exam.”).

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law/norm that they violated is unjust, often leads to a finding of lack of candor-one of the most damning factors in bar admission cases.23 In light of the importance of remorse in the character and fitness process and the difficulty committees—and indeed all of us—face in interpreting the meaning and value of apologetic gestures, this article develops specific guidelines that committees can use to evaluate a bar applicant’s remorse. Section II provides examples of the inconsistent treatment of apologies and remorse in the character and fitness context. Such impressionistic and ad hoc determinations, we believe, often misunderstand and poorly serve the purposes of the review process. Section III explains the confusing and often contradictory meanings conveyed by apologies and how legal contexts further complicate the functions and values expressed by remorse. Adversarial legal environments, we explain, are not a natural habitat for repentant gestures like remorse and apology. Following Nick Smith’s theory of the categorical apology as defended in I Was Wrong,24 Section IV then enumerates thirteen questions that should guide review boards as they evaluate the apologies and remorse of bar applicants. Such principles, we believe, will concentrate the reviewer’s attention on the variables most salient to evaluating the quality of the applicant’s remorse. We argue that such a principled framework can lend rigor and consistency to the review process, which will, in turn, better serve both the bar and applicants to the bar. We conclude by cautioning review committees against understanding an applicant’s remorse as serving retributive ends. The primary justification for the bar’s moral character requirement is to protect the public, and reviewers should not understand the process as punitive in nature. If some forms of wrongdoing effectively ban applicants from bar admission, we argue, state courts and the National Council of Bar Examiners should name these offenses explicitly. II. A Review of the Varying and Inconsistent Treatments of Apologies in Character and Fitness Cases In evaluating whether an applicant seeking bar admission has demonstrated “good moral character and fitness to practice law,”25 character and fitness committees consider positive characteristics such as whether the applicant is able to use good judgment on behalf of clients, to act diligently and reliably in fulfilling one’s obligations, to use good judgment in financial dealings, and to comply with deadlines and time constraints.26 Misconduct in one’s past, such as committing criminal acts, demonstrating financial irresponsibility, or violating academic honesty standards, can be grounds for disqualification.27 23. See Partin, 894 S.W.2d at 908-10; In re Childress, 561 N.E.2d 614 (Ill. 1990); Hallinan v. Comm. of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966); Siegel v. Comm. of Bar Examiners, 514 P.2d 967 (Cal. 1973). 24. Nick Smith, I Was Wrong: The Meanings of Apologies (2008). 25. N.H. S. Ct. R. 42B (III). 26. N.H. S. Ct. R. 42B (VI). 27. N.H. S. Ct. R. 42B (VII). The National Conference of Bar Examiners has also set forth a list of conduct that warrants further investigation. The list includes: “[U]nlawful conduct, academic

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To evaluate the effect of the misconduct upon the applicant’s present character and fitness, committees consider various factors in assigning weight and significance to the individual’s prior conduct. These include factors such as the age at the time the conduct occurred, the seriousness of the conduct, the circumstances under which the conduct occurred and its underlying factors, evidence of rehabilitation, the applicant’s candor, positive social contributions made by the applicant since the conduct, and the materiality of any omissions or misrepresentations made by the applicant.28 The Character and Fitness Guidelines of several jurisdictions emphasize that remorse is a significant factor to consider when evaluating whether an applicant has demonstrated rehabilitation.29 For example, as set forth in the New Hampshire Supreme Court Rules, “establishing sufficient rehabilitation will usually require the applicant to recognize, appreciate, show insight into, and have genuine remorse for the seriousness of his or her disqualifying conduct. Attempts to deny, rationalize, minimize or explain away disqualifying past behavior will usually result in the Committee finding insufficient rehabilitation.”30 Similarly, in evaluating an applicant’s current fitness to practice law, the Pennsylvania Board of Bar Examiners considers evidence of rehabilitation including candor and remorsefulness of the applicant before the Board, acceptance of responsibility for and renunciation of past misconduct, and lack of malice and ill feeling toward those who disclosed the misconduct or initiated proceedings related thereto.31 The following cases provide a sample of how courts treat remorse in the context of bar admission. While each evaluated whether applicants with histories of

misconduct, making of false statements, including omissions, misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial responsibilities, neglect of professional obligations, violation of an order of a court, evidence of mental or emotional instability, evidence of drug or alcohol dependency, denial of admission to the bar in another jurisdiction on character and fitness ground, disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.” NCBEX Guide, supra note 2, at viii, III, 13. 28. See N.H. S. Ct. R. 42B (XIII). 29. See, e.g., Washington State Court Rules, APR 24.2(b)(9)(v): When determining whether past conduct disqualifies an applicant from admission to the Bar, the Character and Fitness Board considers evidence of rehabilitation, such as the “Applicant’s attitude toward the misconduct, including without limitation acceptance of responsibility and remorse.”; Regulations of the Connecticut Bar Examining Committee, Art. VI-5(c)(ix), When an applicant’s past conduct raises a question as to his/her character and fitness, the Committee will take into consideration factors such as evidence of remorse.; North Carolina Board of Law Examiners Character and Fitness Guidelines, “An applicant who asserts rehabilitation from prior misconduct which bears adversely upon the applicant’s character and fitness shall be required to produce clear and convincing evidence of such rehabilitation, which may include . . . Applicant’s current attitude about prior offenses (acceptance or responsibility and renunciation of past wrongdoing and remorse). 30. N.H. S. Ct. R. 42B (XVI). 31. Pennsylvania Board of Law Examiners Bar Admissions Information Handbook 13, available at http://www.pabarexam.org/pdf/handbook.pdf.

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misconduct demonstrated sufficient evidence of rehabilitation to warrant admission, their analyses differ considerably. A. Demonstrating Sufficient Rehabilitation to Allow Admission In a 2000 decision, the District of Columbia Court of Appeals reviewed the recommendation of its Committee on Admissions (“Committee”) to deny Roger Lindmark’s admission to the District of Columbia Bar.32 The Committee’s recommendation was based primarily on Lindmark’s conduct during the Pennsylvania Bar admissions process.33 However, finding that he demonstrated “regret” for his past misconduct, the Court granted Lindmark’s application.34 In 1990, Lindmark applied to take the Pennsylvania Bar after failing to pass the California Bar several times.35 The Pennsylvania Bar of Examiners refused to permit him to take the Bar, finding that his past and present behavior was “incompatible with the standards expected to be observed by members of the Bar.” This finding was based on his law school disciplinary probation and his assertions that his actions were proper.36 During law school in 1982, Lindmark was subjected to disciplinary probation in connection with his effort to appeal a grade and obtain employment.37 The dean of the law school he attended charged Lindmark with making false allegations and statements.38 In response, Lindmark filed two lawsuits against the law school, and was physically removed from the dean’s office after disputing a decision disallowing a course credit.39 After successfully passing the California Bar and being admitted to practice in that state, the Pennsylvania Supreme Court granted his petition for reconsideration and ordered the Board of Law Examiners to allow him to take the Bar examination.40 After passing the exam on his first attempt, Lindmark wrote two letters to the Pennsylvania Board, referring to “the most unprofessional, insidious and despicable harassment and treatment your Board has inflicted upon me.”41 The Pennsylvania Board denied Lindmark’s Bar admission, citing his “intemperate and unprofessional conduct, including unfounded accusations against the Board.”42 The District of Columbia Review Committee considered the proceedings before the Pennsylvania Board as well as Lindmark’s law school discipline. The Committee denied his application and stated:

32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

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In re Lindmark, 747 A.2d 1148, 1149 (D.C. 2000). Id. Id. at 1153. Id. at 1149, n. 1. Id. Id. at 1150, n. 2. Id. Id. Id. Id. Id.

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Journal of The Professional Lawyer Mr. Lindmark . . . refused to recognize that his actions were wrong, even after a judge ruled that the dean’s factual allegations were true. Instead, his testimony sought to evade the issue, as he repeatedly (and unconvincingly) claimed not to be able to identify the factual statements to which the Court referred. His lack of candor about the Court’s ruling shows that his ability to confront unfavorable findings about his own conduct remains problematic. Moreover, his efforts to dismiss the incidents that led to his disciplinary probation as the equivalent of a parking ticket betray a fundamental lack of appreciation for the seriousness of his lies.43

Thus, the Pennsylvania Board and District of Columbia Review Committee agreed: Lindmark lacked remorse and was unfit for admission to the bar. In considering Lindmark’s case, the D.C. Court of Appeals noted that “we have granted admission in the past where a long period of time has elapsed since the applicant’s bad behavior, and the record contains evidence of rehabilitation and remorse.”44 The Court found that “in light of the passage of time and Lindmark’s more favorable recent record,45 we conclude that his most unfortunate conduct as a law student and as an applicant for admission to the Bar of Pennsylvania does not warrant denial of his current application.”46 Noting that during oral argument he admitted that his letter to the Pennsylvania Bar was “intemperate, [and] a dumb thing to do” and that he expressed regret for the “unprofessional and inappropriate” words he used in his letters to the Pennsylvania Board, the Court granted Lindmark’s application for admission.47 Thus, despite a record of misconduct that included hostility toward the dean of his law school and intemperate accusations directed against the Pennsylvania Board of Law Examiners, the D.C. Court of Appeals Committee on Admissions found Lindmark’s mere description of his previous actions as a “dumb thing to do” apparently carried considerable weight. A few contrite words from the applicant appear to have led the Court to disagree with the findings of both the District of Columbia Review Committee and the Pennsylvania Board of Law Examiners and find the applicant remorseful and rehabilitated. We can begin to appreciate here the rather and vague and inconsistent precedents available to reviewing committees. B. Rehabilitation Not Established 1. Severity of the Crime Outweighs Rehabilitation In another District of Columbia Court of Appeals decision, the Court denied bar admission to an applicant who had been convicted of a felony, finding that the 43. Id. at 1150. 44. Id. at 1152. 45. In support of his application for admission, Mr. Lindmark submitted eighteen letters of reference attesting to his good character and status of good standing as a member of the California Bar. Id. at 1150-51. 46. Id. 47. Id. at 1153.

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applicant had not “reformed himself to the point that he now possesses the good moral character required for admission to the Bar.”48 John Dortch was convicted in 1975 of second-degree murder, attempted armed robbery, and conspiracy.49 In 1974, Dortch was a married twenty-nine year old college graduate and Vietnam veteran.50 He started his own insurance business with the help of investors.51 When the business failed, Dortch “hatched a bizarre plot to repay his investors with the proceeds of a bank robbery.”52 To carry out this plot, Dortch enlisted at least six confederates from among his business or social acquaintances.53 Dortch and a co-conspirator drove to the vicinity of the savings and loan.54 Disguised as construction workers, the pair carried a tool bag containing sawed-off shotguns and other firearms that Dortch had supplied.55 Unbeknownst to Dortch, the police had been tipped off and were waiting for them.56 Two plainclothes officers stopped them on the street when they exited their car and directed Dortch to bring the tool bag to a police cruiser parked nearby.57 Dortch removed one of the sawedoff shotguns and approached the police cruiser with it.58 An officer reached for the weapon and it accidentally discharged.59 Although no one was injured, Dortch and his accomplice fled in opposite directions.60 One of the officers fired shots at the fleeing suspects.61 According to the officers’ testimony at the subsequent trial, Dortch turned and fired back.62 Dortch discarded his construction-worker uniform and escaped without further incident.63 Later that day, however, Dortch learned that his accomplice had shot and killed Police Officer Gail Cobb, who had confronted the accomplice in a parking garage as he was removing his disguise.64 The following morning, Dortch surrendered himself to the police.65 He pled guilty to second-degree murder, attempted armed robbery and conspiracy and was sentenced to concurrent sentences of fifteen years to life in prison on the first two charges and five years in prison on the conspiracy charge.66 The Court rejected 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66.

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In re Dortch, 860 A.2d 346 (D.C. 2004). Id. at 348. Id. at 349. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. at 350.

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Dortch’s request for probation.67 He filed two unsuccessful motions to reduce his sentence and three successive, unsuccessful motions to withdraw his guilty plea or set aside his sentence.68 Among other things, Dortch alleged that he was coerced and misled into tendering an involuntary and incompetent guilty plea.69 He also claimed that had decided not to proceed with the robbery and was returning the bag of firearms to his car when the police stopped him.70 He asserted that if the police officers had not “overreacted,” “Officer Cobb would be alive today.”71 Only a few months after his release from prison, Dortch applied for admission to the District of Columbia Law School.72 He disclosed his criminal record on his application in response to a question that asked him to describe “a specific personal experience” in which he was “subjected to or witnessed some significant form of injustice.”73 Dortch answered this question by depicting his own prosecution as an “injustice,” an “abortion of justice” that he had “suffered.”74 The District of Columbia Law School accepted Dortch as a student.75 He performed well in law school and was awarded the Dean’s Cup for outstanding community service, was elected president of the Student Bar Association, and was selected by his classmates to deliver the 1994 law school commencement address.76 Following graduation, Dortch served as an adjunct professor at the law school and worked as a paralegal in a law firm.77 In the fall of 1998, Dortch began working with the Time Dollar Youth Court, a diversion program for first-time juvenile offenders. He eventually became the director of the program.78 In 2001, Dortch was

67. 68. 69. 70. 71. 72. 73. 74.

Id. Id. Id. Id. Id. Id. at 350-51. Id. at 351. Id. In his law school application, Dortch wrote:

I am an ex-offender, and I have witnessed and experienced improprieties in the administration of justice. By virtue of a guilty plea, I was convicted of second degree murder, attempted bank robbery, and conspiracy, and I served fifteen years in prison. I did not kill anyone nor did I attempt to kill anyone nor was I present at the scene of the homicide, but the alleged factual basis for my plea was predicated upon the felony murder concept, which stipulates that each conspirator is equally accountable for every and anything that transpires in the furtherance of a felony, even though he may not participate in the overt act. The injustice that I suffered was at the hands of both the defense counsel, whom I paid in advance, and the prosecution, which condoned, if not encouraged, the perjurious testimonies of the complaining officers. However, I am not bitter, because I did break the law, but not to the extent to which I was charged and prosecuted. The bottom line is that I did break the law, and had not I broken the law, I would not have been vulnerable to an abortion of justice. 75. 76. 77. 78.

Id. Id. Id. Id.

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appointed Director of the Violence Free Zone Initiative of the National Center for Neighborhood Enterprise.79 In 1995 and 1996, Dortch passed bar examinations in the District of Columbia, Maryland, and West Virginia, and he applied for admission to the bar in all three jurisdictions.80 In so doing, Dortch fully disclosed his criminal convictions.81 While Dortch emphasized on his application in the District of Columbia “that I neither killed anyone nor was I at the scene where the homicide took place,” he readily acknowledged that he had “orchestrated a conspiracy to commit an armed robbery.”82 Dortch also expressed his contrition in his live testimony before the Admissions Committee (“Committee”), which concluded that he “appeared sincere in expressing remorse and in accepting responsibility for his criminal actions.”83 The Committee did not explain the factors used to evaluate Dortch’s sincerity. The Committee held Dortch’s application in abeyance pending the outcome of the Maryland and West Virginia proceedings.84 In January 1997, the Court of Appeals of Maryland rejected Dortch’s application as “premature” because he had not yet been released from parole.85 A few months later the Supreme Court of Appeals of West Virginia denied Dortch’s application on its merits.86 Although the Court acknowledged Dortch’s “candor in admitting his guilt and responsibility in the death of Officer Cobb” and other evidence demonstrating that Dortch may have been rehabilitated, . . . “the horrendous crime of which he was the prime conspirator outweighs his present good deeds.”87 Following the decisions in Maryland and West Virginia, and after conducting three days of hearings, the Committee in the District of Columbia was unanimous in concluding that Mr. Dortch had not met his burden of proof and in recommending that his application be denied.88 In reviewing the Committee’s recommendations, the D.C. Court applies a “totality of circumstances” test of whether the applicant, at time of application, had the good moral character necessary for admission to the Bar.89 To evaluate the moral fitness of applicants with criminal backgrounds, the Court considers the following rehabilitation factors: 1. The nature and character of the offenses committed. 2. The number and duration of offenses.

79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

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Id. Id. at 352. Id. Id. Id. Id. Id. Id. Id. at 353 (citing In re Dortch, 486 S.E.2d 311, 321 (W. Va. 1997)). Id. at 354. Id. (citing In re Manville, 538 A.2d 1128, 1132 (D.C.1988) (en banc) (“Manville II”)).

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Journal of The Professional Lawyer 3. The age and maturity of the applicant when the offenses were committed. 4. The social and historical context in which the offenses were committed. 5. The sufficiency of the punishment undergone and restitution made in connection with the offenses. 6. The grant or denial of a pardon for offenses committed. 7. The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period. 8. The applicant’s current attitude about the prior offenses (e.g., acceptance of responsibility for and renunciation of past wrongdoing, and remorse). 9. The applicant’s candor, sincerity and full disclosure in the filings and proceedings on character and fitness. 10. The applicant’s constructive activities and accomplishments subsequent to the criminal convictions. 11. The opinions of character witnesses about the applicant’s moral fitness.90

The Court was guided by the principle that “the more serious the misconduct, the greater the showing of rehabilitation that will be required. . . . [and] in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make.”91 The Court concluded that the first four factors weighed heavily against Dortch.92 As the Court explained, “[t]his case is not about the forgivable foibles of an applicant’s callow youth. . . . Rather, the opposite is the case: Dortch was twenty-nine years old, married, a father, a college graduate, a Vietnam veteran, and an experienced and accomplished businessman. Dortch’s moral character was not still in formation, and he was not without adequate resources to choose from a variety of paths of conduct other than the fatal path he selected.”93 As to the fifth factor, the Court considered the sufficiency of Dortch’s punishment and his efforts to make restitution for his wrongdoing.94 Assuming that Dortch’s fifteen-year prison sentence adequately reflected the severity of his offense, the Court focused on the fact that: [I]n all the years since his conviction, Dortch has done nothing tangible to help, nor has he offered to help, those still living whom he permanently and deeply harmed by his criminal enterprise: Officer Cobb’s family, his confederates, and their families. We appreciate that extending such help might have entailed special effort and even personal sacrifice on Dortch’s part. That is one of the reasons why it would have been a meaningful thing to do. It is easy to express remorse, but substantiation of that remorse through acts of restitution seems appropriate in a situation such 90. 91. 92. 93. 94.

Id. at 356 (citing Manville II, 538 A.2d at 1133 n. 4). Id. at 357 (quoting In re Matthews, 462 A.2d 165, 176 (N.J. 1983)). Id. at 359. Id. Id.

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as this one. Dortch’s failure to make restitution undermines his claim of moral regeneration.95 Regarding the sixth and seventh factors, the Court noted that although Dortch had not engaged in any misconduct in the thirty years since the failed armed robbery, “[p]assage of time alone is insufficient to warrant admission.96 Analyzing the eighth and ninth factors, the Court considered Dortch’s “current attitude” about his offenses, his acceptance of responsibility, renunciation of past wrongdoing, remorse, and his “candor, sincerity and full disclosure” in the admission proceedings.97 The Court noted that the Committee heard directly from Dortch, questioned him, and ultimately credited his current statements of responsibility and remorse.98 It is unclear whether he explicitly accepted blame for the murder as well as the attempted robbery. Nevertheless, the Court expressed its “remaining doubts about the depth and consistency of Dortch’s acceptance of responsibility and remorse.”99 Again, the Court emphasized the fact that Dortch did not attempt to help Officer Cobb’s family or to atone to the accomplices whom he enticed into joining his criminal plot.100 It also noted that “we are taken aback by the disingenuous and self-justifying statements that Dortch made,” in moving to withdraw his guilty plea and in applying to law school, such as his characterization of his conviction as an “abortion of justice.”101 Using its “honest discretion and rational good judgment” to evaluate the “totality of the circumstances,” the Court noted that “[w]e possess no supernatural ability to look into an applicant’s heart. Rather, we must divine what we need to know from the applicant’s actions and outward manifestations.”102 Given the “extremely damning” character of his crimes, the Court determined that Dortch had the burden to make an exceptionally compelling showing of his full and complete rehabilitation to assure the Court of his present good moral character.103 The Court concluded that Dortch did not make so compelling a showing.104 In denying his application, the Court explained that Dortch failed to demonstrate “a substantial record of personal sacrifice, outstanding service to others, or similar expiative and ethical behavior on Dortch’s part that would tend to confirm his indisputable moral regeneration.”105 Rather, “Dortch’s failure to make restitution—to offer help, for

95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105.

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Id. Id. at 359-60. Id. at 360. Id. Id. Id. Id. Id. at 361. Id. Id. Id.

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example, to Officer Cobb’s surviving family—seriously undermines his claim that he is fully rehabilitated.”106 In an Arizona case involving a similarly serious crime—attempted murder— the Court refused to admit an applicant, despite considerable evidence of rehabilitation.107 In 1977, Lee Keller King, a peace officer, was upset because he had been “passed over” for a full-time deputy constable position.108 While off duty and out of uniform, King went to a neighborhood bar, became highly intoxicated and argued with two male acquaintances. After leaving the bar, King used his semiautomatic service weapon to shoot each man several times at close range.109 Both victims survived.110 After serving a suspended prison sentence, King graduated from college and law school, passed the Texas bar examination, and was found to possess the requisite good moral character to practice law in Texas in 1994.111 He practiced law in Texas without incurring any disciplinary charges, he married, adopted his wife’s child, and the couple had two additional children.112 In 2003, King moved to Arizona to work in his law firm’s Phoenix-area office. He passed the Arizona bar examination and submitted his Character and Fitness Report to the Committee on Character and Fitness.113 After conducting an evidentiary hearing, the Committee recommended that the Court deny King’s application for admission.114 The Committee concluded that although King had presented strong evidence of rehabilitation and positive social contributions since the shootings, the Committee was unable to overlook the seriousness of his crime.115 King obtained counsel and re-applied six months later to the Committee. This Committee, which had changed members, recommended King’s admission to the bar, without issuing an opinion explaining its decision.116 In its evaluation of King’s application, the Arizona Court explained that the “burden of demonstrating complete rehabilitation is determined by the gravity of the past criminal conduct. The more serious the unlawful act, the greater the burden.”117 Because “King’s misconduct tips the scales against admission at the outset,” he must “produce an extraordinary amount or quality of evidence to meet his burden of proof.”118 Therefore, to prove complete rehabilitation, “King must

106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118.

Id. In re King, 136 P.3d 878 (2006). Id. at 880. Id. Id. Id. at 881. Id. Id. Id. Id. Id. Id. Id.

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establish that he has both (1) accepted responsibility for his past criminal conduct, and (2) identified and overcome the weakness that led to the unlawful conduct.”119 The Court found that evidence in the record both supported and negated King’s contention that he has accepted responsibility for the 1977 shootings.120 King demonstrated his acceptance by informing judges, lawyers, law professors, former employers, friends, acquaintances, and colleagues of his crime over an extended period of time, “impressing upon many of them heartfelt feelings of remorse” and in both hearings before the Committee, King admitted shooting the victims and expressed remorse, calling the shootings “a mistake I made that I will carry with me for the rest of my life.”121 However, the Court also found that in his written applications for admission to law school, to the Arizona Bar, and the Court, King minimized his personal responsibility for the shootings by explaining that due to the lack of any witnesses, his strained emotional state, and anti-police sentiment, it was in his best interests to plead guilty to one charge and “throw [himself] on the mercy of the Court rather than to attempt to clear [himself] in a jury trial.”122 The Court was “left with the impression that King intended his readers to infer that he had a defense to the shootings but chose to plead guilty to one charge after weighing his chances for success.” It concluded that King expressed no remorse and that his excuses were inconsistent with the notion of acceptance of responsibility.123 The Court also determined that King failed to satisfy the second prong of the rehabilitation test—identifying the weakness that caused him to engage in criminal misconduct and then demonstrating that he has overcome that weakness because “nothing illuminates why King lacked appropriate skills to cope with stress or abused alcohol during the pertinent period of his life. Without such knowledge, we cannot be assured that King has appropriately addressed and overcome the weakness leading to his criminal misconduct.”124 Thus, the Court refused to adopt the Committee’s recommendation that King be admitted to the Bar. 2. Lacking Remorse—a Clear Case Lack of remorse and failure to accept responsibility for misconduct was clearly the basis of the Georgia Supreme Court’s denial of Willie Jay White’s bar application. White had intentionally submitted a wholly plagiarized paper in his advanced torts class at the end of his second year of law school.125 During an investigation, which included informal interviews with White, the Board to Determine Fitness of Bar Applicants (“Board”) became concerned with White’s lack of candor during the fitness application process.126 Because White refused to fully explain his 119. 120. 121. 122. 123. 124. 125. 126.

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Id. at 883 (citations and quotations omitted). Id. Id. Id. Id. at 883-84. Id. at 885. In re White, 656 S.E.2d 527, 528 (Ga. 2008). Id. at 527.

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conduct to the Board, despite multiple opportunities to do so, White’s certification of fitness to practice law was tentatively denied.127 At a formal hearing that White requested, he again failed to offer any credible explanation for his plagiarism and “despite the overwhelming evidence to the contrary, was either unwilling or unable to admit” that he deliberately reproduced sections of five previously published works and submitted it as his own work.128 The Court agreed with the hearing officer’s determination that “White’s explanation of the plagiarism incident was not credible, that he had not yet accepted full responsibility for his actions, and that he did not currently possess the character and fitness required of a prospective member of the State Bar.”129 The Court concluded that White had failed to offer a plausible explanation of his actions. As a result, he has never accepted full responsibility for what he did, and he has not yet been rehabilitated.”130 3. A Court Divided In a more difficult decision, a divided Illinois Supreme Court reviewed the request for bar admission of an applicant, Jerome Krule, who had been convicted of insurance fraud.131 The majority ultimately denied the application, finding that Krule’s proof of good character and remorse did not outweigh the gravity of his past conduct.132 However, in a dissenting opinion, one judge opined that the applicant had sufficiently demonstrated rehabilitation.133 Krule graduated from law school in 1994 and in 1995 the Committee on Character and Fitness voted not to recommend his admission to the Illinois Bar.134 This decision was based on Krule’s involvement in an insurance fraud scheme, which resulted in a felony conviction in 1988.135 The Committee determined that Krule was not candid in describing his involvement in the scheme, that he did not demonstrate his rehabilitation, and that he lacked candor in failing to inform his law school of three previous misdemeanor convictions.136 During a hearing before the Committee in 1999, Krule testified that he had played a “major role” in the fraud scheme and expressed remorse for his illegal conduct and failure to report the misdemeanor convictions when he applied to law school.137 He presented seven character witnesses, including a judge, who testified that Krule spoke with “agonizing candor” about his past difficulties, that he acknowledged he made serious mistakes in his past, and that he showed a great deal

127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137.

Id. at 527-28. Id. at 528. Id. Id. In re Krule, 741 N.E.2d 259 (Ill. 2000). Id. at 265. Id. at 266-72. Id. at 260. Id. Id. Id. at 261.

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of remorse for his past misconduct.138 The witnesses also testified to Krule’s community service with the Evanston Community Defender Office, which provided free legal and social work services to low income residents under the age of 21 and with a local school district, where he served as a volunteer tutor.139 In evaluating Krule’s application, the Court stated that Krule professed that he was sorry and had changed, but the Committee believed that his words and actions may have been designed simply to satisfy the requirements of bar admission. Moreover, to the extent Krule was remorseful, the Committee believed that it may have been remorse that his conduct interfered with his bar admission rather than a genuine appreciation for how his illegal conduct affected others.140 The Court was concerned that Krule committed fraud when he was an adult in the context of circumstances comparable to those he might face as an attorney.141 Therefore, the Court concluded that Krule’s past conduct evinced an inability for him to carry out his professional responsibilities honestly.142 It further determined that “[a]s impressive as Krule’s character references and public service may be, an applicant’s subsequent exemplary behavior cannot lessen the enormity of an earlier offense.”143 In denying his application for admission, the Court found that Krule had failed to persuade it that he would not repeat his conduct, and therefore, admission would “deprecate the seriousness of his crime.”144 In a separate concurrence, one judge cited a 1990 case in which an applicant who had been convicted of rape and robbery 16 years earlier applied for admission to the Illinois Bar long after his release from prison. Observing that a felony conviction will not automatically preclude an applicant’s admission to the bar, the Court explained: It is clear, however, that the degree of rehabilitation that must be established to warrant admission . . . will depend in large measure on the nature of the wrong committed. Just as a disbarred attorney’s subsequent exemplary behavior will not mitigate the seriousness of his misconduct, so too will an applicant’s subsequent exemplary behavior fail to lessen the enormity of an earlier offense.145 The concurrence delineated the considerations in this case that he deemed most relevant:

138. 139. 140. 141. 142. 143. 144. 145.

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Id. at 261-62, 268. Id. at 268. Id. at 264. Id. Id. Id. at 265. Id. Id. at 266 (citations omitted).

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Journal of The Professional Lawyer The petitioner was involved in an extensive, fraudulent scheme, and he played an active role in the commission of those offenses. Moreover, the petitioner was 45 years old at the time of his involvement; thus, his offenses were not youthful indiscretions, but the work of a mature adult, and they were closely related to what was then his career in insurance. Also, the petitioner, who applied to and was accepted by his law school after these offenses, was not completely candid to the school about this misconduct and, separately, failed to report on his law school application three prior misdemeanor charges, two of which resulted in guilty pleas.146 In a dissent from the majority’s opinion, one judge questioned: What more could [Krule] have done that he did not already do to enable him to be allowed the privilege to practice law? Stated otherwise, is there anything petitioner failed to do to justify refusing him a license to practice law. The majority does not answer this essential question. Instead, in denying Krule’s admission application, my colleagues appear to singlemindedly focus upon the seriousness of petitioner’s past offense, to the virtual exclusion of the ample amount of positive evidence presented in petitioner’s favor during the Committee hearing.147

Noting that “[i]t is axiomatic that the seriousness of petitioner’s crime remains constant,” the dissenting judge explained that: It is precisely because the gravity of the offense will be the same 10, 15, or 20 years henceforth—and forevermore—that this Court has looked to factors in addition to the seriousness of the crime committed to determine whether an applicant has been sufficiently rehabilitated to be admitted to the practice of law. In other words, we must consider the seriousness of petitioner’s offense against the backdrop of the various indicia of rehabilitation of character and fitness. The egregious conduct of petitioner, though deserving of considerable weight, should not be the overriding factor in assessing petitioner’s fitness to practice law. The judge noted that on several occasions during his hearing, Krule expressed remorse for his past misconduct.148 Krule testified that he had “moved in every possible direction to correct that type of behavior and to make sure that it won’t happen again.”149 According to Krule, his motivation for cooperating with the authorities during the insurance scheme prosecution was to “try and correct some of the harm that I did and put an end to it also.”150 He also stated that by performing

146. 147. 148. 149. 150.

Id. Id. at 267. Id. at 269. Id. Id.

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his present volunteer community service, “I’ve tried to correct what I did or do what I can to correct what I did.”151 Although petitioner stated that he realized that he cannot “erase” his past misconduct, he testified that “I can do everything in my power to change myself, which I have tried to do, tried to grow and develop in another direction totally, and I’m very sorry for what I did.”152 The dissenting judge criticized the majority for its “unsupported and speculative conclusions” with respect to the motivation and sincerity of Krule’s candor in acknowledging responsibility for his role in the insurance scheme and his remorse for his past misconduct.153 In conclusion, the judge remarked: The decision of the majority to deny petitioner’s application, despite the fact that the record contains substantial, uncontradicted evidence of petitioner’s rehabilitation and present good moral character and fitness to practice law, leads me to the conclusion that, in this case, the majority has determined that regardless of the amount of positive evidence presented in petitioner’s favor, the nature of petitioner’s offense automatically precludes his admission to the bar.154 4. Does Remorse Really Matter? Ohio’s Inconsistent Treatment of Remorse Remorse and acceptance of responsibility were significant factors in two Ohio Supreme Court cases. While the Court reached the same decision in both cases, its analysis regarding remorse was entirely inconsistent. In 1999, Alexander Bagne was denied admission to the Michigan Bar because he did not consistently account for a crime he committed in 1991.155 When he was 19 years old, Bagne was accused of shooting a jogger in the neck with a BB gun while he and a friend were joy riding and Bagne shot the BB gun randomly from the passenger side of the car.156 Bagne insisted that the shooting was accidental.157 The Michigan Board of Law Examiners (“Board”) doubted Bagne’s credibility and candor during three separate character and fitness hearings.158 The Board found that Bagne appeared to be “willing to say anything for the sake of approval” and “attempt[ed] to create false impressions as to the seriousness of and his responsibility for his crime.”159 The Board was particularly troubled by a change in Bagne’s testimony during the third hearing, when he proposed for the first time that the driver of the car, who had died before the hearing, might actually have fired the shot that struck the 151. 152. 153. 154. 155. 156. 157. 158. 159.

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Id. at 269-70. Id. at 270. Id. at 271. Id. at 272. In re Application of Bagne, 808 N.E.2d 372, 373 (Ohio 2004). Id. at 372. Id. at 373. Id. Id.

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jogger.160 During a hearing, Bagne corrected his own witness as to the degree of his responsibility for shooting the jogger and blamed his attorney for advising him to suggest that he might not have been completely responsible for the jogger’s injury.161 The Board found that Bagne had a fairly cavalier absence of remorse for his victim, whom he had never met, implying on one occasion that the jogger’s injuries were insignificant because after the shooting, she had been able to jog back to her house before going to the hospital.162 In denying his application, the Board concluded that Bagne “seemed unwilling to consistently tell the truth or genuinely accept the consequences for his acts.”163 In reviewing Bagne’s pending application to the Ohio Bar, the Ohio Board of Commissioners on Character and Fitness noted that “[d]espite the fact that the conduct was very serious and injured the jogger, . . . the Board is more troubled by the candor and credibility of the applicant concerning the incident.”164 Accordingly, the Ohio Board recommended that Bagne’s application be denied, but allowed him to reapply in several years.165 The Ohio Supreme Court agreed and adopted these recommendations.166 In doing so, the Court implied that if Bagne would candidly acknowledge his responsibility for his conduct and express remorse for his acts, he would satisfy the good character requirement for Bar admission. More recently, the same Court did not credit another applicant’s “genuine” expression of remorse and acceptance of responsibility.167 The Ohio Board of Commissioners on Character and Fitness recommended that applicant, Nathan J. Kohler, be disapproved for Bar admission and that he not be permitted to reapply as a candidate for the bar for two years because he deceived partners and clients of the law firm where he formerly worked as a law clerk.168 Kohler misled clients and his supervisor by repeatedly lying in response to requests for status reports.169 He fabricated documents, including a court order, complete with a forged signature purporting to be that of the bankruptcy court clerk.170 Eventually, Kohler confessed his inaction and misrepresentations to the firm.171 During a hearing, the Board found that: Mr. Kohler was more honest and direct. He admitted he had done the ‘wrong thing.’ He admitted that when he missed the deadline for filing

160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171.

Id. Id. at 374. Id. Id. Id. at 375. Id. Id. In re Application of Kohler, 873 N.E.2d 818 (Ohio 2007). Id. at 819. Id. Id. at 819-20. Id. at 820.

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under the prior bankruptcy law, he knew that he should have advised the clients and the law firm. He admitted that he had no good excuse for his egregious behavior. While Mr. Kohler noted that, at the time, he felt overwhelmed by his family responsibilities, his work obligations, and the pressures of taking and retaking the bar exam, he also acknowledged that none of these justified what he did.172 Although the Court determined that “Kohler has recognized the gravity of his transgressions and has shown overwhelming contrition,” it ultimately accepted the Board’s recommendation to deny his application.173 However, the Court concluded that “[b]ecause Kohler, with genuine remorse, accepted the consequences of his mistakes, we believe that he may yet establish that he has the character, fitness, and moral qualifications to practice law,” and permitted him to reapply for Bar admission. The effect of expressing remorse and accepting responsibility remains unclear when examining the Bagne and Kohler cases. Both applicants suffered the same fate—denial of their bar applications with permission to reapply—although one applicant was found to lack candor and credibility, while the other was candid and remorseful. C. Confounding Precedents Reviewers and bar applicants alike should wonder whether consistent principles underlie these decisions. In Lindmark, the applicant’s superficial recognition that his actions were “a dumb thing to do”—an admission he offered for the first time at oral argument before the Court—was deemed sufficient to show sincere remorse.174 Yet in Krule, the majority rejected the factual findings of its Committee and found substantial expressions of remorse insufficient despite the fact that seven character witnesses—including a judge—supported Krule and testified that he spoke with “agonizing candor” about his past difficulties, that he acknowledged he made serious mistakes in his past, and that he showed a great deal of remorse for his past misconduct.175 The crime in Krule—insurance fraud by a mature person176—was more severe than the noncriminal conduct exhibited by Lindmark and this could, in part, account for the differences in treatment of the cases. The Dortch case provides some support for this distinction. In that case, the Court held that given the severity of the crime, the applicant needed to do more than utter apologetic words and reform behavior.177 Only direct assistance to the family of the police officer killed in the underlying matter, the Court suggested, would demonstrate sufficient remorse.178

172. 173. 174. 175. 176. 177. 178.

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Id. Id. at 821. In re Lindmark, 747 A.2d at 1153. In re Krule, 741 N.E.2d at 261-64, 268. Id. at 260. In re Dortch, 860 A.2d at 360. Id.

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However, a close review of the opinions and comparison of the dissenting and majority opinions in Krule suggest that courts and committees, with the best of intentions and in good faith, may be using little more than impressionistic and ad hoc notions to make judgments about the character of bar applicants. Although the proportion of applicants denied admission to the Bar because of character issues is relatively small,179 these are career-defining decisions for applicants. Character decisions relying upon “unnamed and tangled impressions . . . which may lie beneath consciousness”180 run serious risks of error and inconsistency. These determinations may be devastating to an applicant’s goals, livelihood, and reputation.181 Even a temporary delay in bar admission may indicate to colleagues that a recent law graduate has character problems.182 In addition, the community may be denied the service of an accomplished and dedicated individual who, despite past mistakes, now may be more committed than others to promoting justice.183 In light of the mixed messages sent by these published opinions, we propose standards that might help reviewing bodies reach principled and reliable judgments on a bar applicant’s remorse and rehabilitation. III. The Meaning of Apologies The preceding review of court rules and cases applying standards for character and fitness reviews demonstrates, we believe, considerable inconsistency regarding both the purpose of such proceedings and the means of evaluating the records. Although states provide reviewing bodies with carefully enumerated indicia for evaluating the character and fitness of applicants, such determinations typically rest on judgments of whether the applicant has undergone a genuine “transformation” since the time of the offense. Often these high stakes determinations regarding whether applicants will be allowed to pursue their career of choice, in which they have invested considerable time and expense, turn on the answer to one central question: Is the applicant genuinely remorseful? The quality of the apology often becomes the primary window into the quality of the applicant’s person and her capacity to serve the profession with honor. Evaluating apologies and remorse can prove quite complicated even in the simplest situations between individuals who know each other quite well. Determining whether a bar applicant has experienced a change of heart asks a great deal of reviewing bodies, especially considering the various aspects of such con179. See Rhode, supra note 2, at 516 (stating that one in five hundred applicants from fortyone states in 1982 were denied admission for character and fitness reasons); The Ohio Bar reports that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp. 180. Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 248 (1957). 181. Carr, supra note 16, at 370. 182. Id. 183. Id.

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texts that produce a reasonable skepticism regarding the authenticity of contrition from would-be lawyers within such institutional proceedings. How might reviewing bodies make good judgments about the meanings of an applicant’s remorse? How can we distinguish between the sorts of apologies and remorse that indicate genuine reform and promise for principled careers of service to the community and those that intend to game the system by providing the mere appearance of apology and remorse? In 2008 one of the co-authors published I Was Wrong: The Meanings of Apologies, which provides a theoretical framework for the meanings of apologies from individuals and collectives.184 Discussing numerous examples from ancient and recent history, I Was Wrong argues that we suffer from considerable confusion about the moral meanings and social functions of these complex interactions—just as the cases discussed above demonstrate. Rather than asking the binary question of whether a speech act “is or is not” an apology, I Was Wrong attempts to account for the many ways that acts of contrition succeed or fail to achieve various diverse objectives. This book leads readers though a series of interdisciplinary questions, arguing that apologies have evolved from a confluence of diverse cultural and religious practices that do not translate easily into pluralistic secular discourse, and makes the case for a robust core of moral meaning in a “Categorical Apology.” We believe this notion of categorical apology can provide a helpful framework for applicants seeking to provide meaningful expressions of remorse as well as for reviewing bodies charged with evaluating such records. From this research, I Was Wrong identified distinct spheres of apologetic meaning. The book considers a wide variety of apologetic meanings and warns against thinking of apologies in binary “all or nothing” terms, but the following benchmarks guide the standards for categorical apologies and can serve as touchstones for our thinking about apologies in law. Categorical apologies, which we understand as a regulative ideal for acts of contrition, address the thirteen concerns listed below. Conceived as such, categorical apologies are demanding ethical acts indicating a kind of transformation that resonates with thick conceptions of repentance within religious traditions. The categorical apology is a robust, painstaking, and formal arrangement of remorseful meanings and as such we posit this standard as appropriately rigorous for the bar admission context.185

184. Smith, supra note 24. 185. For a discussion of the methodological commitments underlying our conception of apologetic meanings, see Smith, supra note 24, at 17-27. Notions of remorse, apology, and character present rich, complex, and intertwined theoretical terms. In the context of bar admission, remorse is typically understood as the primary indicator of an applicant’s character yet little guidance exists regarding what this complex term means and what it is meant to measure. We explain in this paper that reviewers would benefit from parsing the analytic distinctions between these terms in order to evaluate with greater precision the sorts of behaviors and attitudes that help to predict an applicant’s ability to practice law according to the bar’s ethical standards. In our view, an applicant’s apologetic behaviors as specifically outlined in this paper provide more accurate and fine-grained insight into

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Before outlining our framework for evaluating expressions of remorse in character and fitness, we should appreciate just how foreign and conflicted apologies can seem in the practice of law in the contemporary United States, especially to aspiring attorneys who are often young and recently graduated from law school. We should appreciate the mixed messages we send to our students as we train them in the largely adversarial methods, yet expect them to adopt a conciliatory attitude during what can be a fight for the life of their legal career. Apologies within legal contexts are nuanced and often in law pull in opposite directions.186 On the one hand, apologies seem entirely out of place in most modern legal contexts. What we describe as categorical apologies admit guilt. Whether in criminal hearings, corporate settlement negotiations, or malpractice litigation, admitting guilt can amount to complete legal defeat. Providing a categorical apology within an adversarial justice system can amount to legal suicide.187 For these reasons, some medical malpractice insurers will void their policies if doctors provide too many details to injured patients.188 Criminal defense attorneys, likewise, will strongly advise their clients to resist apologizing to their victims, even if they feel a moral compunction to “come clean” early in the proceedings. Corporate executives and directors of various institutions resist apologizing not only because they fear personal exposure to liability, but also because they risk breaching fiduciary duties to their constituencies. In this respect, the sorts of morally rich apologies we describe seem antithetical to the very spirit of modern adversarial law. Legal battlegrounds hardly provide an environment conducive to reconciliation through moral transformation189 and therefore character and fitness reviews can seem like something of a trap. On the other hand, current legal trends undisputedly point toward a rise in the prevalence of certain kinds of apologies in law. Building on findings in the social sciences, legal scholarship, and legislation now reinforce the belief that

an applicant’s character than do generalized and ambiguous conception of remorse. Our position captures the meanings usually associated with remorse—for instance the state of experiencing negative emotions as a result one’s wrongdoing—as but one component of the broader set of meanings captured by a categorical apology. 186. For a more thorough discussion of the role of apologies in law, see Nick Smith, Apologies in Law: An Overview of the Philosophical Issues, Proceedings of the Conference on Forgiveness, Reconciliation, and the Law at Case Western Reserve Law School, (unpublished article on file with author). 187. See Deborah Levi, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165, 1186-87 (1997) (“If a party asks for an apology, the opposing lawyer is likely . . . to [refuse in order to] protect her client from the risk that evidence of apology could become a basis for assigning liability in a subsequent legal proceeding.”). 188. Michael Woods, Healing Words: The Power of Apology in Medicine (2007). 189. See Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135, 1150 (2000) (“This competition is captured in a lawsuit, the purpose of which is to establish the fault of one party and offer relief to the other. This is hardly an atmosphere that encourages expressions of remorse.”)

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strategically timed and worded apologies can prevent litigation altogether, reduce damage payments and jury awards by considerable amounts, or shave years from prison sentences.190 In criminal law, the U.S. Federal Sentencing Guidelines permit judges to reduce punishments by considerable amounts for defendants who “accept responsibility” for their crimes and “express remorse.”191 U.S. Supreme Court 190. For discussions of the role of apologies in criminal law by legal scholars appearing in law reviews, see Brent White, Saving Face: The Benefits of Not Saying I’m Sorry, 72 L. & Contemp. Probs. 261 (2009); Daniel Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 Iowa L. Rev. 491 (2008); Margareth Etienne & Jennifer K. Robbennolt, Apologies and Plea Bargaining, 91 Marq. L. Rev. 295 (2007); Abigail Penzell, Apology in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145 (2007); Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911 (2006); Candace McCoy, Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform, 50 Crim. L. Q. 67 (2005); Susan Szmania & Daniel Mangis, Finding the Right Time and Place: A Case Study Comparison of the Expression of Of fender Remorse in Traditional Justice and Restorative Justice Contexts, 89 Marq. L. Rev. 335 (2005); Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85 (2004); Sherry Colb, Profiling With Apologies, 1 Ohio St. J. Crim. L. 611 (2004); Erin Ann O’Hara, Apology and Thick Trust: What Spouse Abusers and Negligent Doctors Might Have in Common, 79 Chi.-Kent L. Rev. 1055 (2004); Robert Weisberg, Apology, Legislation, and Mercy, 82 N.C. L. Rev. 1415 (2004); Cheryl Bader, Forgive Me Victim for I Have Sinned: Why Repentance and the Criminal Justice System Do Not Mix—A Lesson from Jewish Law, 31 Fordham Urb. L.J. 69 (2003); Margareth Etienne, Remorse, Responsibility, and Regulating Advocacy: Making Defendants Pay for the Sins of Their Lawyers, 78 N.Y.U. L. Rev. 2103 (2003); S. Garvey, Restorative Justice, Punishment, and Atonement, 1 Utah L. Rev. 303 (2003); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B. U. L. Rev. 289 (2001); S. Garvey, Punishment as Atonement, 47 UCLA L. Rev. 1801 (1999); Theodore Eisenberg et al., But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599 (1998); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); Charles R. Calleros, Conflict, Apology, and Reconciliation at Arizona State University: A Second Case Study in Hateful Speech, 27 Cumb. L. Rev. 95 (1997); Lisa F. Orenstein, Sentencing Leniency May Be Denied to Criminal Offenders Who Fail to Express Remorse at Allocution, 56 Md. L. Rev. 780 (1997); Michael O’Hear, Remorse, Cooperation, and ‘Acceptance of Responsibility’: The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines, 91 Nw. U. L. Rev. 1507 (1997); Ellen M. Bryant, Section 3E1.1 of the Federal Sentencing Guidelines: Bargaining with the Guilty, 44 Cath. U. L. Rev. 1269 (1995); Richard Delgado & Jean Stefancic, Apologize and Move On?: Finding a Remedy for Pornography, Insult, and Hate Speech, 67 U. Colo. L. Rev. 93 (1994); John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3 (1978). For an exchange on remorse, apology, and mercy, see Criminal Law Conversations (Paul Robinson et al., eds. 2009). For a recent symposium on mercy in criminal law, see generally 4 Ohio St. J. Crim. L. (2007). For discussions of “shaming sanctions,” see Andrew von Hirsch, Censure and Sanctions 82 (1996); Stephen Garvey, Can Shaming Punishments Educate? 65 U. Chi. L. Rev. 733 (1998); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055 (1998); Dan Kahan, What Do Alternative Sanctions Mean?, 6 U. Chi. L. Rev. 591 (1996) (for Kahan’s revised views, see What’s Really Wrong with Shaming Sanctions 84 Tex. L. Rev. 2075 (2006)). 191. See 18 U.S.C. app. § 3E1.1; see also United States v. Fagan, 162 F.3d 1280, 1284 (10th Cir. 1998); United States v. Hammick, 36 F.3d 594, 600 (7th Cir. 1994); United States v. Camargo, 908 F.2d 179 (7th Cir. 1990).

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Justice Anthony Kennedy once claimed that expressions of remorse can be the difference between life and death in capital sentencing procedures192 and several studies confirm this.193 Philosophers194 and social scientists195 now pay increasing

192. Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring). 193. See Theodore Eisenberg et al., But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599 (1998); Randolph B. Pipes & Marci Alessi, Remorse and a Previously Punished Offense in Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85 Psychol. Rep. 246 (1999); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); C.L. Kleinke et al., Evaluation of a Rapist as a Function of Expressed Intent and Remorse, 132 J. Soc. Psychol. 525 (1992); Michael G. Rumsey, Effects of Defendant Background and Remorse on Sentencing Judgments, 6 J. Appl. Soc. Psychol. 64 (1976). 194. For discussions of apologies in criminal law by philosophers, see Linda Radzik, Making Amends: Atonement in Morality, Law, and Politics (2009); Christopher Bennett, The Apology Ritual: A Philosophical Theory of Punishment (2008); Forgiveness, Mercy, and Clemency (Austin Sarat & Nassir Hussain, eds., 2007); Urban Walker, Moral Repair: Reconstructing Moral Relations After Wrongdoing (2006); Andrew von Hirsch, Proportionate Sentencing: Exploring the Principles (2005); Jeffrie Murphy, Getting Even: Forgiveness and its Limits (2003); John Braithwaite, Restorative Justice and Responsive Regulation (2002) (note that Braithwaite’s doctoral training is in sociology, but he publishes in philosophy journals as well as various other disciplines); Antony Duff, Punishment, Communication, and Community (2001); From Social Justice to Criminal Justice (W.C Heffernan & John Kleinig, eds., 2000); Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., 1995); Immanuel Kant, The Metaphysical Elements of Justice 101 (John Ladd trans., Hackett 1999) (1797); Andrew von Hirsch, Censure and Sanctions (1996); K. D. Moore, Pardons: Justice, Mercy, and the Public Interest (1989); Richard Swinburn, Responsibility and Atonement (1989); A. Duff, Trials and Punishments (1986); Christopher Bennett, Apology and Reparation in a Multicultural State, in Law and Philosophy 459 (R. Harrison, ed., 2007); Meir Dan Cohen, Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon, in Forgiveness, Mercy, and Clemency 117 (Austin Sarat & Nasser Hussain eds., 2007); Jeffrie Murphy, Remorse, Apology and Mercy, 4 Ohio St. J. Crim. L. 423 (2007); John Tasioulas, Repentance and the Liberal State, 4 Ohio St. J. Crim. L. 487 (2007); Christopher Bennett, Taking the Sincerity Out of Saying Sorry: Restorative Justice as Ritual, 23 J. Appl. Phil. 127 (2006); Jeffrie Murphy, Remorse, Apology, and Criminal Sentencing, 38 Ariz. St. L.J. 371 (2006); John Tasioulas, Punishment and Repentance, 81 Phil. 279 (2006); Andrew von Hirsch et al., Restorative Justice: A ‘Making Amends’ Model? in Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? 21 (Andrew von Hirsch et al. eds., 2003); Geoffrey Sayre-McCord, Criminal Justice and Legal Reparations as an Alternative to Punishment, 11 Phil. Issues 502 (2001); John Braithwaite, Repentance Rituals and Restorative Justice, 8 J. Pol. Phil. 115 (2000); Steven K Tudor, Accepting One’s Punishment as Meaningful Suffering, 20 L. & Phil. 581 (2000); Andrew von Hirsch, Punishment, Penance and the State, in Punishment and Political Theory, 69 ( M. Matravers ed., 1999); Jeffrie Murphy, Repentance, Punishment, and Mercy, in Repentance: A Comparative Perspective 143 (Amitai Etzioni & David Carney eds., 1997); Brenda M. Baker, Penance as a Model for Punishment, 18 Soc. Theory & Prac. 311 (1992);Wojciech Sadurski, Theory of Punishment, Social Justice, and Liberal Neutrality, 7 L. & Phil. 351 (1989); Robert Justin Lipkin, Punishment, Penance, and the Respect for Autonomy, 14 Soc. Theory & Prac. 87 (1988); Jean Hampton, The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff. 208 (1984); P. Twambley, Mercy and Forgiveness, 36 Analysis 84 (1976). 195. For examples of discussions of apologies in criminal law by social scientists, see Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (1990); Howard Zehr, Why

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attention to the role of apologies in punishment. In civil law, research suggests that apologies provide an astoundingly successful means of mollifying disputants.196 Many suggestive social scientific studies have appeared in the past twenty years,

Can’t We Just Apologize?, 11 Crime Victims Rep. 38 (2007); Gordon Bazemore & Mark Umbreit, A Comparison of Four Restorative Sentencing Models, in A Restorative Justice Reader: Texts, Sources, Context (Gerry Johnstone ed., 2003); Anthony Bottoms, Some Sociological Reflections on Restorative Justice, in Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms 79 (Andrew von Hirsch et al., eds., 2003); H. Strang, Justice for Victims of Young Offenders: the Centrality of Emotional Harm and Restoration, in A Restorative Justice Reader: Texts, Sources, Context 286 (G. Johnstone ed., 2003); Carrie Petrucci, Apology in the Criminal Justice Setting, 20 Behavioral Sci. & L. 337 (2002); Keith E. Niedermeier et al., Exceptions to the Rule: The Effects of Remorse, Status, and Gender on Decision Making, 31 J. Appl. Soc. Psychol. 604 (2001); Robert R. Weyeneth, The Power of Apology and the Process of Historical Reconciliation, 23 The Pub. Historian 9 (Summer 2001); Susan Alter, Apologizing for Serious Wrongdoing: Social, Psychological, and Legal Considerations, Final Report for the Law Commission of Canada (1999); Walter J. Dickey, Forgiveness and Crime: The Possibilities of Restorative Justice, in Exploring Forgiveness 106 (Robert D. Enright & Joanna North eds., 1998); Randolph B. Pipes & Marci Alessi, Remorse and a Previously Punished Offense in Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85 Psychol. Rep. 246 (1999); M. H. Gonzales et al., Victims as “Narrative Critics:” Factors Influencing Rejoinders and Evaluative Responses to Offenders’ Accounts, 20 Personality & Soc. Psychol. Bull. 691 (1994); D. Robinson et al., Heinous Crime or Unfortunate Accident? The Effects of Remorse on Responses to Mock Criminal Confessions, 73 Soc. Forces 175 (1994); C. Kleinke et al., Evaluation of a Rapist as a Function of Expressed Intent and Remorse, 132 J. Soc. Psychol. 525 (1992); Christy Taylor & Chris L. Kleinke, Effects of Severity of Accident, History of Drunk Driving, Intent, and Remorse on Judgments of a Drunk Driver, 22 J. Appl. Soc. Psychol. 1641 (1992); G. S. Schwartz et al., The Effects of Post-Transgression Remorse on Perceived Aggression, Attribution of Intent, and Level of Punishment, 17 J. Soc. & Clinical Psychol. 293 (1987); Michael G. Rumsey, Effects of Defendant Background and Remorse on Sentencing Judgments, 6 J. Appl. Soc. Psychol. 64 (1976); Harry S. Upshaw & Daniel Romer, Punishment For One’s Misdeeds as a Function of Having Suffered From Them, 2 Personality & Soc. Psychol. Bull. 162 (1976); W. Austin et al., Equity and the Law: The Effects of a Harmdoer’s “Suffering in the Act” on Liking and Assigned Punishment, in Advances in Experimental Social Psychology 217 (L. Berkowitz ed., 1976); Jerry I. Shaw & James A. McMartin, Perpetrator or Victim? Effects of Who Suffers in an Automobile Accident on Judgmental Strictness, 3 Soc. Behavior & Personality 5 (1975); and Dana Bramel et al., An Observer’s Reaction to the Suffering of His Enemy, 8 J. Personality & Soc. Psychol. 384 (1968). 196. For discussions of apologies in civil law in law reviews and by law faculty, see Jennifer Robbennolt, Apologies and Medical Error, 467 Clin. Orthop. Relat. Res. 376 (2009); Jennifer Robbennolt, Apologies and Reasonableness: Some Implications of Psychology for Torts, 59 DePaul L. Rev. 489 (2010); Jennifer Robbenolt, Apologies and Settlement, 45 Ct. Rev. 76 (2010); Michael Runnels, Apologies All Around: Advocating Federal Protection for the Full Apology in Civil Cases, 45 San Diego L. Rev. 137 (2009); Robin Ebert, Attorneys, Tell Your Clients to Say They’re Sorry: Apologies in the Health Care Industry, 5 Ind. Health L. Rev. 337 (2008); Carole Houk & Lauren Edelstein, Beyond Apology to Early Non-Judicial Resolution, 29 Hamline J. Pub. L. & Pol’y 411 (2008); Aaron Lazare, The Healing Forces of Apology in Medical Practice and Beyond, 57 DePaul L. Rev. 251 (2008); Jennifer Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 Harv. Negot. L. Rev. 349 (2008); Mitchell Stephens, I’m Sorry: Exploring the Reasons Behind the Differing Roles of Apology in American and Japanese Civil Cases, 14 Widener L. Rev. 185 (2008); Prue Vines, Apologies and Civil Liability in the UK: A View from Elsewhere, 12 Edinburgh L. Rev. 200 (2008); Colin Jones, Apologies and Corporate Governance in the Japanese Context:

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but consider a few of the more striking recent arguments for increasing the role of apologies in law.197 Michael Woods, a physician and leading advocate for apologies as a means of reducing medical malpractice litigation, claims that the “likeli-

Tatsumi Tanaka’s Sonna Shazai De Wa Kaisha Ga Abunai (Apologizing that Way Will Endanger Your Company), 3 BYU Int’l L. Mgmt. Rev. 303 (2007); Prue Vines, The Power of Apology: Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena, Pub. Space 1 (2007); Ashley A. Davenport, Forgive and Forget: Recognition of Error and Use of Apology as Preemptive Steps to ADR or Litigation in Medical Malpractice Cases, 6 Pepperdine Disp. Resol. L.J. 81 (2006); Jennifer Robbennolt, Apologies and Settlement Levers, 3 J. Empirical Legal Stud. 333 (2006); Brent T. White, Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell L. Rev. 1261 (2006); D. Hyman & C. Silver, Medical Malpractice Litigation and Tort Reform, 59 Vand. L. Rev. 1085 (2006); Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement (with Japan and the United States in Mind), 27 Mich. J. Int’l L. 1 (2005); Virginia L. Morrison, Heyoka: The Shifting Shape of Dispute Resolution in Health Care, 21 Ga. St. U. L. Rev. 931 (2005); Jennifer Robbennolt, What We Know and Don’t About the Role of Apologies in Resolving Health Care Disputes, 21 Ga. St. L. Rev. 1009 (2005); Lee Taft, Apology within a Moral Dialectic: A Reply to Professor Robbennolt, 103 Mich. L. Rev. 1010 (2005); Prue Vines, Apologising to Avoid Liability: Cynical Civility or Practical Morality? 27 Sydney L. Rev. 483 (2005); Prue Vines, Apologies in the Civil Liability Context, 2 Australian Civ. Liability 6 (2005); J. Brown, The Role of Apology in Mediation, 87 Marq. L. Rev. 655 (2004); Sidney Kanazawa, Apologies and Lunch: Strategic Options for Every Litigator, For the Defense, Jul. 2004, at 29; Donna Pavlick, Apology and Mediation: The Horse and Carriage of the Twenty-First Century, 18 Ohio St. J. on Disp. Resol. 829 (2003); Jennifer Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460 (2003); Erin O’Hara & Douglas Yarn, On Apology and Consilience, 77 Wash. L. Rev. 1121 (2002); R. Cohen, Legislating Apologies: The Pros and Cons, 70 U. Cin. L. Rev. 1 (2002); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B.U. L. Rev. 289 (2001); Dai-Kwon Choi, Freedom of Conscience and the Court-Ordered Apology for Defamatory Remarks, 8 Cardozo J. Int’l & Comp. L. 205 (2000); Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000); William K. Bartels, The Stormy Sea of Apologies: California Evidence Code Section 1160 Provides a Safe Harbor for Apologies Made after Accidents, 28 W. St. U. L. Rev. 141 (2001); D. Shuman, Role of Apologies in Tort Law, 83 Judicature 180 (2000); Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135 (2000); Jonathan R. Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999); Jonathan R. Cohen, Nagging Problem: Advising the Client Who Wants to Apologize, Dispute Resolution Magazine, Spring 1999, at 19; Steven Keeva, Does Law Mean Never Having to Say You’re Sorry?, 85 A.B.A. J. 64 (1999); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 Sw. U. L. Rev. 221 (1999); Deborah Levi, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165 (1997); Marshall Tanick & Teresa Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying “I’m Sorry,” The Hennepin Lawyer, July-August 1996, at 22; Peter Rehm & Denise Beatty, Legal Consequences of Apologizing, 1995 J. Disp. Resol. 115 (1995); R. Korobkin & C. Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107 (1994); John Soloski, The Study and the Libel Plaintiff: Who Sues for Libel? 71 Iowa L. Rev. 217 (1985). 197. For social scientific discussion of apologies in civil law, see Johannes Abeler et al., The Power of Apology (2009) available at http://www.nottingham.ac.uk/cedex/documents/ papers/2009-12.pdf; Robert Cornell et al., The Use of Remedial Tactics in Negligence Litigation, 26 U. Utah Contemp. Acctg. Res. 767 (2009); A. Wu et al., Disclosing Medical Errors to Patients: It’s Not What You Say, It’s What They Hear, 24 J. Gen. Internal Med. 1012 (2009); Michael B. Rainey et al., Characterized by Conciliation: Here’s How Business Can Use Apology to Diffuse Litigation, 26

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hood of a lawsuit falls by 50 percent when an apology is offered and the details of a medical error are disclosed immediately.”198 Medicine generally best embodies these two faces of apologies in law, as it underwent a dramatic transformation by evolving from an “admit nothing” culture to a profession that routinely advises physicians to apologize for adverse outcomes in order to minimize the costs associated medical malpractice litigation.199 Alternatives to High Cost Litig. 131 (2008); Chris Hyman & Clyde Schechter, Mediating Medical Malpractice Lawsuits Against Hospitals: New York City’s Pilot Project, 25 Health Aff. 1394 (2006); L. Kaldjian et al., An Empirically Derived Taxonomy of Factors Affecting Physicians’ Willingness to Disclose Medical Errors, 21 J. Gen. Internal Med. 942 (2006); Aaron Lazare, Apology in Medical Practice: An Emerging Clinical Skill, 296 J. Am. Med. Ass’n 1401 (2006); K. Mazor et al., Disclosure of Medical Errors: What Factors Influence How Patients Respond?, 21 J. Gen. Intern Med. 704 (2006); Keith Michael Hearit, Crisis Management by Apology: Corporate Responses to Allegations of Wrongdoing (2005); C.B. Liebman & C.S. Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration Project in Pennsylvania The Project on Medical Liability in Pennsylvania (2005), available at http://www.pewtrusts. org/our_work_report_detail.aspx?id=24398; C. Sparkman, Legislating Apology in the Context of Medical Mistakes, 82 AORN J. 263 (2005); Douglas Frenkel & Carol Liebman, Words that Heal, 140 Annals of Internal Med. 482 (2004); C. Liebman & C. S. Hyman, A Mediation Skills Model To Manage Disclosure Of Errors And Adverse Events To Patients, 23 Health Affairs 22 (2004); K. Mazor et al., Health Plan Members’ Views about Disclosure of Medical Errors, 140 Annals Internal Med. 409 (2004); Thomas H. Gallagher et al., Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors, 289 J. Am. Med. Ass’n 1001 (2003); R. Lamb et al., Hospital Disclosure Practices: Results of a National Study, 22 Health Aff. 73 (2003); Ameeta Patel & Lamar Reinsch, Companies Can Apologize: Corporate Apologies and Legal Liability, 66 Bus. Comm. Q. 9 (2003); Brian H. Bornstein et al., The Effects of Defendant Remorse on Mock Juror Decisions in a Malpractice Case, 20 Behav. Sci. & L. 393 (2002); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B. U. L. Rev. 289 (2001); Jonathan Cohen, Apology and Organizations: Exploring an Example from Medical Practice, 27 Fordham Urb. L.J. 1447 (2000); Carl D. Schneider, What It Means To Be Sorry: The Power of Apology in Mediation, 17 Mediation Q. 265 (2000); S. Kraman & G. Hamm, Risk Management: Extreme Honesty May Be the Best Policy, 131 Annals Internal Med. 963 (1999); A. Wu, Handling Hospital Errors: Is Disclosure the Best Defense? 131 Annals Internal Med. 970 (1999); A. Witman et al., How do Patients Want Physicians to Handle Mistakes? A Survey of Internal Medicine Patients in an Academic Setting, 156 Archives Internal Med. 2565 (1996); H.S. Farber & M. J. White, A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice, 23 J. Legal Stud. 777 (1994); C. Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 Lancet 1609 (1994); G. Hickson et al., Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 J. Am. Med. Ass’n 1359 (1992); M. May & D. Stengel, Who Sues Their Doctors? How Patients Handle Medical Grievances, 24 L. & Soc’y Rev. 105 (1990); D. Novack et al., Physicians’ Attitudes Toward Using Deception to Resolve Difficult Ethical Problems, 261 J. Am. Med. Ass’n 2980 (1989); Ann J. Kellett, Healing Angry Wounds: The Roles of Apology and Mediation in Disputes Between Physicians and Patients, 1987 J. Disp. Resol. 111 (1987); Stephen B. Goldberg et al., Saying You’re Sorry, 3 Negotiation J. 221 (1987); John O. Haley, The Implications of Apology, 20 Law & Soc’y Rev. 499 (1986). 198. Woods, supra note 188, at 3. 199. For further specific discussions of the role of apologies in medicine, see, for example, Abeler et al., supra note 197; Cornell et al., supra note 197; Robbennolt, Apologies and Medical Error, supra note 196; Runnels, supra note 196; Wu et al., supra note 197; Ebert, supra note 196;

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The role of apologies in law, it is safe to say, will often be confusing to bar applicants undergoing a character and fitness review. We should not be surprised if their initial impulse is to aggressively deny or minimize their wrongdoing given that they have been trained to advocate. Such an attitude may undercut any contrition they may genuinely feel, and their legal training may not always serve them well in this context.200 Review boards and attorneys specializing in such cases may Lazare, The Healing Forces of Apology in Medical Practice and Beyond, supra note 196; Rainey et al., supra note 197; Kevin Sack, Doctors Say “I’m Sorry” Before “See You in Court,” N.Y. Times, May 18, 2008, at A1; Flauren Fagadau Bender, “I’m Sorry” Laws and Medical Liability, 9 Virtual Mentor: Am. Med. Ass’n J. Ethics 300 (2007); John Kleefeld, Thinking Like a Human: British Columbia’s Apology Act, 40 U. B.C. L. Rev. 769 (2007); Laura Landro, The Informed Patient: Doctors Learn to Say “I’m Sorry”: Patients’ Stories of Hospital Errors Serve to Teach Staff, Wall St. J., Jan. 24, 2007, at D5; Charlie Schmidt, “We’re Sorry”: The Healing Power of Apology—And How Two Little Words Can Make Medicine Safer, Harv. Pub. Health Rev., Fall 2007, at 8; Woods, supra note 186; Medical Justice: Making the System Work Better for Patients and Doctors: Hearing Before the S. Comm. on Health, Educ., Labor & Pensions, 109th Cong. 3 (2006) (testimony of Richard C. Boothman); Richard C. Boothman, Apologies and a Strong Defense at the University of Michigan Health System, Physician Executive, Mar./Apr. 2006, at 7; Davenport, supra note 196; Peter Geier, Emerging Med-Mal Strategy: “I’m Sorry,” Nat’l L. J., July 24, 2006, available at http://www. law.com/jsp/article.jsp?id=1153472732197 (subscription required); Hyman & Schechter, supra note 197; Hyman & Silver, supra note 196; Kaldjian et al., supra note 197; Lazare, Apology in Medical Practice: An Emerging Clinical Skill, supra note 197; Lucian L. Leape, Full Disclosure and Apology—An Idea Whose Time Has Come, Physician Executive, Mar.-Apr. 2006, at 16; Katherine Mangan, Acting Sick, Chron. Higher Edu., Sept. 15, 2006, at 8; Mazor, Reed, Yood, Fischer, Baril & Burwitz, supra note 197; Gail Garfinkel Weiss, Should You Apologize?, Medical Economics, Apr. 21, 2006, at 50; Lucian L. Leape, Understanding the Power of Apology: How Saying “I’m Sorry” Helps Heal Patients and Caregivers, Focus on Patient Safety, Winter 2005, at 1; Liebman & Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration Project in Pennsylvania, supra note 197; Morrison, supra note 196; Robbenholt, What We Know and Don’t About the Role of Apologies in Resolving Health Care Disputes, supra note 196; Sparkman, supra note 197; Lee Taft, Apology and Medical Mistake: Opportunity or Foil?, 14 Ann. Health L. 55 (2005); Vines, Apologising to Avoid Liability: Cynical Civility or Practical Morality?, supra note 196; Frenkel & Liebman, supra note 197; R. Lamb, Open Disclosure: The Only Approach to Medical Error, 13 Quality & Safety in Health Care 3 (2004); Liebman & Hyman, A Mediation Skills Model To Manage Disclosure Of Errors And Adverse Events To Patients, supra note 197; Mazor, Simon & Yood, supra note 197; Lindsey Tanner, Doctors Eye Apologies for Medical Mistakes, Associated Press, Nov. 8, 2004; Rachel Zimmerman, Medical Contrition: Doctors’ New Tool to Fight Lawsuits: Saying “I’m Sorry,” Wall St. J., May 18, 2004, at A1; Gallagher et al., supra note 197; Lamb, Studdert, Bohmer, Berwick & Brennan, supra note 197; Cohen, Legislating Apologies: The Pros and Cons, supra note 196; Bornstein et al., supra note 197; Latif, supra note 189; Cohen, Apology and Organizations: Exploring an Example from Medical Practice, supra note 197; Taft, Apology Subverted, supra note 189; Kraman & Hamm, supra note 197; Wu, supra note 197; Witman et al., supra note 197; J. Stratton Shartel, Toro’s Mediation Program Challenges Wisdom of Traditional Litigation Model, Inside Litig., June 2005, at 10; Farber & White, supra note 197; Vincent et al., supra note 197; Hickson et al., supra note 197; May & Stengel, supra note 197; Novack et al., supra note 197; Kellett, supra note 197. For examples of recent media coverage of the increasing role of apologies in medicine, see Sack, supra; Landro, supra; Mangan, supra; Geier, supra; Weiss, supra. 200. See Simon, supra note 17 (“Second, and perhaps more importantly, the admissions process is an inopportune time and place to ask an attorney and the applicant to grapple with this

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need to treat these reviews as a “teachable moment” in the career of a young attorney where they learn the significance of regret, reform, and attitudes of contrition for many legal disputes. Rather than reinforcing that law is a bare-knuckle procedural contest, character and fitness reviews provide an opportunity for an attorney to internalize that many legal issues are primarily matters of principle and emotion. Character reviews can, in other words, help to cultivate character rather than simply judge it. IV. A Practical Framework for Expressing and Evaluating Apologies in Character and Fitness Cases We now provide a practical framework for analyzing acts of remorse within the bar admission process. We hope the following guidelines will better equip bar admission reviewers to systemically evaluate the relationship between apology and character and will reduce the need to rely on impressionistic instincts in such important matters. We offer thirteen elements of a categorical apology and apply them specifically to the character and fitness context.201 1. Has the applicant corroborated the factual record? It seems axiomatic that for an applicant to truly express remorse, he or she must accurately understand and describe the underlying offense for which he is remorseful. Thus, categorical apology requires the offender to corroborate a detailed factual record of the events salient to the injury. If possible, this should include reaching agreement among the victim, offender, and sometimes the community regarding what transpired and the relevant aspects of the context in which the injury occurs. Rather than providing general and vague descriptions of the events (“I acted badly”), the committee should require the applicant to render transparent all facts material to judging the transgressions. Such a record will often include honest accounts of the mental states of the apologizer at the time of the offense when such information would prove relevant, for example by describing the offender’s intentions when committing the transgression. An applicant will not, at any time during the application process, attempt to suppress or evade the factual record. In addition to establishing the historical record, meeting this criterion goes some way toward demonstrating the applicant’s credibility and candor. Bagne offers a classic case in this regard as the applicant suggested—via various ill-conceived strategies—that he did not fire the shot at the jogger or otherwise cause her serious harm.202 The Board’s finding that Bagne “seemed unwilling to

question. It is here that we most need lawyers to set a tone of professionalism. For those applicants without clinical experience in law school, this may be the first time where they, as an aspiring lawyer, confront the actual practice. Regardless of how one resolves the issue of the “lecture,” there is something about the process of having this discussion in as amorphous an area as remorse that is unlikely to help build confident and committed professionals. “). 201. For the full defense of the principles of apologetic meaning endorsed here, see Smith, supra note 24, at 28-113. 202. In re Application of Bagne, 808 N.E.2d at 372-73.

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consistently tell the truth” captures the essence of his lack of credibility with respect to corroborating the factual record.203 The applicant in King also provides an example of failing to satisfy this element because he repeatedly suggested that he pled guilty despite possessing exculpatory evidence.204 Given the prevalence of plea bargaining in contemporary criminal courts in the United States, this can present a genuine dilemma. If an applicant continues to assert her innocence for a crime for which she entered into a plea bargain, we could find little meaning in an expression of remorse for this crime. Indeed, we might expect a principled applicant—a person of especially high character—to refuse to apologize for a wrongdoing she did not commit despite that fact that such an expression of remorse might grease the wheels of bar admission. 2. Has the applicant accepted blame for the specific act causing the committee’s concern? In accordance with generally accepted notions of proximate causation, the applicant must accept causal moral responsibility and blame for the harm at issue. We can distinguish this from expressing sympathy for the injury or describing the injury as accidental or unintentional. Dortch, for example, appeared to consistently deny that he deserved blame for the officer’s death even thought he accepted responsibility for the attempted robbery.205 Opponents of the felony murder doctrine might be sympathetic to Dortch’s position precisely because the legal principle confuses issues of moral causation and Dortch was not the proximate cause of the murder. Obviously this is a losing argument in felony murder jurisdictions, but Dortch provides an interesting example of the reviewing body expecting the applicant to apologize and accept blame for something for which he genuinely does not believe he deserves blame. In addition, applicants who appear primarily to regret being caught or subject to review—as suggested by the facts in In re Krule—often fail to satisfy this element.206 In general, these discussions would benefit from speaking precisely in terms of “accepting blame” rather than “accepting responsibility.”207 Accepting blame admits that I did something morally wrong and I deserve blame for the consequences of this wrongdoing. Accepting responsibility can mean any number of things, for instance when a maintenance worker “takes responsibility” for cleaning someone else’s mess (an occupational responsibility) and when a person accepts “moral responsibility” for a natural disaster by providing aid (an ethical duty). People often attempt to take responsibility for things even though they deny that they deserve blame, and in the bar examination context we should seek primarily acceptance of blame.

203. 204. 205. 206. 207.

Id. at 374. In re King, 136 P.3d at 883. In re Dortsch, 860 A.2d. at 351-52. See In re Krule, 741 N.E.2d at 264-65. See Smith, supra note 24, at 33-38.

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3. Has the applicant personally provided the necessary apology? The categorically apologetic applicant will possess the requisite standing to accept blame for the wrongdoing. The offender can and does accept proximate responsibility for the harm and she—rather than an attorney, proxy, or other third party—undertakes the work of apologizing described herein. While an applicant has the right to representation by counsel at an admission hearing, expressions of remorse should not come from anyone other than the applicant in order for there to be a finding of remorse. 4. Has the applicant identified each harm? The applicant must identify each harm at issue, taking care not to conflate several harms into one general harm or apologize for only a lesser offense or the “wrong wrong.” In each of the cases discussed above the temptation can be to identify only the worst of the offenses, but often major offenses are comprised of many small wrongs. What series of questionable behaviors, for instance, led Dortch to believe that robbing a bank was an appropriate means of salvaging a failing business enterprise?208 Surely a review committee should gain insight into not only the bank robbery, but also the series of misjudgments that led Dortch to criminal activity so that Dortch knows not to continue this behavior in his legal career. The committee should also be sure that the applicant distinguishes the harm to the victim from the harm to the bar and the community. In the case of a sexual assault, for example, the harm to the victim should be distinguished from the harm to the legal community should an unrepentant sex offender be admitted to practice law.209 Dortch is again illuminating here because he consistently, from his law school application through his character review, attempted to distinguish the attempted robbery and the felony murder.210 5. Is the applicant able to identify the ethical principles underlying each harm? The applicant should be able to identify the ethical principles underlying these harms with an appropriate degree of specificity, thus making explicit the values at stake in the interaction and their relevance to the practice of law. For example, in a case like Krule, the applicant must be able to see the offended ethical principle not only as obtaining improper gains from the insurance company, but also as having violated the ethical duty of truthfulness and the significance of this duty for his legal career.211 In Lindmark, civility and respectful discourse seemed to be the central values at issue212 and an appropriately remorseful applicant should appreciate the centrality of these values to the legal profession. 208. 209. 210. 211. 212.

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In re Dortsch, 860 A.2d. at 342. Application of T.J.S., 692 A.2d. In re Dortsch, 860 A.2d. at 350-52. See In re Krule, 741 N.E.2d at 264-65. See In re Lindmark, 747 A.2d at 1153.

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6. Has the applicant demonstrated a commitment to the moral principles underlying each harm? In order to demonstrate remorse, the applicant must commit to the ethical principles underlying these harms (again with an appropriate degree of specificity), vindicating the value at issue and finding the offense at the applicant’s breach of this value justified. Here the phrase “I was wrong” will better convey this meaning than the traditionally favored “I am sorry,” as the former accepts personal blame for wrongdoing while the latter may provide no more than an expression of sympathy or a displeasure with a state of affairs. Committees, of course, must do more than just require the right words. Rather, they must, through questioning, ensure that the testimony of the applicant conveys the clear impression that she understands that she was wrong and therefore deserves blame for her actions. 7. Does the applicant recognize the victim as a moral interlocutor? Through this process the applicant must prove that he or she recognizes the victim of the underlying offense as a moral interlocutor. With this, the applicant demonstrates that she considers the victim as a moral agent worthy of engaging in moral discourse and abandons the belief that she can disregard the victim’s dignity, humanity, or worth in pursuit of her own objectives. This factor seemed to be determinative to the court’s finding in Dortch because of the applicant’s failure to address the loss to the police officer’s family.213 Also notice that identifying the full set of victims can require some effort. Did Lindmark, for instance, apologize to the dean of his law school or others impacted by his apparently frivolous actions claims against the institution?214 Or does he direct his apology only to the fitness review committee?215 8. Has the applicant expressed and demonstrated categorical regret? The applicant must demonstrate categorical regret for the actions in question, meaning she believes that she has made a mistake that she wishes could be undone. King’s recognition of the shootings as “a mistake I made that I will carry with me for the rest of my life”216 demonstrates his appreciation for the wrongness of his acts. We can distinguish this from continuing to endorse one’s decisions but expressing sympathy regarding what the applicant perceives as the justifiable consequences of her actions. If an applicant claims that her conduct was “the best choice she had” given the circumstances, the committee is left to wonder if she would act differently if confronted with similar temptations.

213. 214. 215. 216.

In re Dortsch, 860 A.2d. at 360. See In re Lindmark, 747 A.2d at 1152-53. Id. In re King, 136 P.3d at 883.

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9. Has the applicant delivered an apology? When appropriate, the applicant must express the apology to the victim rather than keeping her thoughts of contrition to herself or sharing them only with a third party such as the review committee. She addresses the apology to the victim as a moral interlocutor. She expresses the content required of a categorical apology explicitly. The apology reaches the victim or an appropriate proxy. The victim may exercise reasonable discretion regarding whether the offender must present the apology only to the victim or also to a broader community. The determination whether the apology must be committed to writing, conferred to the victim in writing, or entered into the record also lies within the victim and review committee’s reasonable discretion. To repeat: reviewers should exercise appropriate skepticism toward apologies and remorse directed exclusively at the reviewing body and should direct applicants to take steps toward reconciling with the offended. The failure of the applicant in Dorch to apologize to the family of the deceased officer provides an example of the significance of this element.217 10. Has the applicant demonstrated sufficient reform since the offense, leading the committee to find an overwhelming probability that he or she will not reoffend over a lifetime? Remorse should lead the applicant to forbear from reoffending over her lifetime. She will repeatedly demonstrate this commitment by resisting opportunities and temptations to reoffend. Resisting many such temptations over a considerable duration adds credibility to the efforts to reform. Thus a categorical apology allows the victim to isolate the cause of her suffering, apportion blame for her injury, and take some security in the offender’s pledge never to repeat the offense. If an applicant has a lengthy record of not reoffending despite temptations, a reviewing committee should place considerable weight in the predictive power of such behavior. The shorter the record and the fewer temptations resisted, the less confidence the committee should feel in their ability to predict the trajectory of the applicant’s behavior. This element appears to speak most directly to the reasons why courts consider the age of the applicant at the time of the offense. In addition to the presumption that youthful offenders stand better chances of being rehabilitated than more mature offenders, the passage of time provides opportunities to be presented with and resist temptations. Thus while we do not wish to endorse the questionable sentiments expressed in Dortch that the applicant’s “moral character was not still in formation”218—as if the quality of our character ossifies before the age of 29 as that court suggests—the passage of time in the presence of similar circumstances without recidivism provides an important data point. Note, however, two additional points. First, if the applicant was incarcerated for much of the duration between offense and application then she may not have 217. In re Dortsch, 860 A.2d. at 860. 218. Id. at 359.

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confronted similar opportunities to reoffend. Second, reviewing bodies should consider the specific conditions that created especially strong temptations to commit the offense. If the applicant was impoverished at the time she committed a petty theft, for instance, a better personal financial situation may reduce the appeal of recidivating. The court found this consideration to weigh against Dortch because “he was not without adequate resources to choose from a variety of paths of conduct other than the fatal path he selected.”219 Addiction treatment should also factor prominently in this regard: an applicant who offended while addicted and has been sober for ten years since demonstrates that she has potentially reformed her conduct in part by eliminating influences that undermine her character. The Court in King appropriately considered this aspect, describing his alcohol abuse at the time of the misconduct as “weakness” that contributed to his behavior.220 The Court denied the application in part because it was not assured that King has appropriately addressed and overcome the weakness leading to his criminal misconduct.221 11. Has the applicant provided appropriate redress for her offenses? A categorically apologetic applicant will provide appropriate redress for her offenses and such redress can take many forms, pecuniary or otherwise. The apologizer accepts legal sanctions for her wrongs, though she may protest these penalties to the extent that she finds them unjustifiable as disproportionate to her offense.222 The applicant takes practical responsibility for the harm she causes, providing commensurate remedies and other incommensurable forms of redress to the best of her ability. She provides these remedies to the offended parties or a suitable proxy. The applicant provides a proportional amount of redress, but she need not meet excessive demands from victims with unreasonable or inappropriate expectations. In light of this element, we appreciate the wisdom of the court’s finding that “Dortch’s failure to make restitution—to offer help, for example, to Officer Cobb’s surviving family—seriously undermines his claim that he is fully rehabilitated.”223 12. Has the applicant convinced the committee that his intentions for apologizing are not primarily instrumental? The categorical apology also requires certain mental states. Rather than promoting the apologizer’s purely self-serving objectives, the applicant intends the apology to advance the victim’s well-being and affirm the breached value. The 219. 220. 221. 222. at 351. 223.

Id. In re King, 136 P.3d at 885. Id. Though we note, the Court was not favorable to that argument in In re Dortsch, 860 A.2d. Id. at 361.

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expressions of remorse, in other words, are not offered primarily as a means to the end of bar admission. The strongest candidates will have apologized to those they harmed well before the review process. Those who appear to apologize only because of the review process should be treated with appropriate suspicion. Consideration of statements made to third parties or a consistent pattern of remorse might provide evidence of such intent. Such evidence did not convince the court in Dortch.224 We do not argue that the committee or court must accept this as proof of intent. Rather, this element should require such bodies to carefully evaluate the conduct to determine if it demonstrates a mere plan to gain admission or signifies true reflection and rehabilitation. 13. Have the applicant’s emotions and demeanor since the event been consistent with one who accepts guilt and truly shows empathy for the victim? As a result of her wrongdoing, the applicant should experience an appropriate degree and duration of sorrow and guilt as well as empathy and sympathy for the victim. We leave questions regarding what constitutes the appropriate qualitative and quantitative emotional components of categorical apologies to be determined in consideration of cultural practices and individual expectations.225 However, focusing committee inquiries on such evidence and requiring finding of fact on these points should discipline committees to focus on the sincerity and depth of the remorse, rather than on an ad hoc evaluation of the applicant’s past. Conceived as described above, categorical apologies are demanding ethical acts indicating a kind of transformation that resonates with thick conceptions of repentance expected to establish the strength of character expected of bar applicants. Several additional points warrant noting. First, forbearance, reform, and redress present ongoing tasks for the applicant. Reviewing bodies cannot, therefore, conclusively measure an applicant’s contrition against the standard of the categorical apology at the moment she offers it. If the applicant reoffends soon after her admission, surely much of the meaning of her apology will be lost. This presents a complication in that we cannot immediately declare an applicant to have “categorically apologized” during the review process because so much work remains. We should consider apologies at this declarative stage as a kind of promise. A categorical apology keeps its promises, and therefore we might describe the gesture before the applicant has completed reform and redress as a “promissory categorical apology.” If the applicant breaks her promise to reform and provide redress over her lifetime, her gesture would not rise to the level of a categorical apology. Although we may desire instant and conclusive gratification from a gesture of contrition, categorical apologies require patience from both the offender and the victim. Reviewing bodies should meet urges to prematurely judge apologies with suspicion 224. See id. at 352. 225. Smith, supra note 24.

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and scrutinize the motivations behind such haste. Reviewers should therefore appreciate this limit. Although they can take considerable measures to evaluate the quality of an apology offered during the admissions process, all such expression of remorse can be drained of meaning by an applicant who reoffends. Not reoffending over a long period in the face of temptation is one of the best measures of character, and probationary periods could provide the reviewers with an opportunity to evaluate the applicant’s behavior over a longer duration and in the context of the various enticements and stresses associated with practicing law. Second, parties could agree to depart from the standards provided by the categorical apology, adjusting the apologetic meaning they seek to their situation and desires. Indeed, we might worry that a gesture that followed the script for a categorical apology might appear too rehearsed. If an offender appears to provide a paint-by-numbers apology, we might question her intentions and the depth of her understanding of the gesture she enacts. We should be careful, however, not to confuse careful and studied answers with the sort of glibness that damaged the applicant’s case in Application of T.J.S.226 In some cases, diverging from the script could prove especially important. If an offender has extreme difficulties expressing emotions, for example, the victim might appreciate this idiosyncrasy and be entirely satisfied with something other than a categorical apology. We might also find applicants who experience serious obstacles to expressing remorse—cultural differences, for instance, might make expectations for remorse inscrutable for some—and in such cases it seems prudent to place more emphasis on other measures of reform. Again, the point is not that every expression of remorse must satisfy the elements of a categorical apology. Nor do we mean to make the best the enemy of the good or imply that “imperfect” apologies are necessarily flawed in some way. Instead, we should interpret the categorical apology as providing a touchstone against which we can interpret and compare all expressions of remorse. In light of these considerations, questions will arise regarding how to best “weigh” and prioritize these thirteen elements and the additional considerations when evaluating candidates. If an applicant satisfactorily addresses all thirteen elements and thereby demonstrates moral transformation, we have good reason to believe that she is likely to serve the bar honorably. Undertaking such a fine grained review of the applicant’s attitudes and behaviors, we believe, provides a much more accurate evaluation of her fitness to practice law than does an impressionistic determination regarding the applicant’s remorsefulness. Cases surely will

226. Application of T.J.S., 692 A.2d 498 (1997). In that case, a teacher had been convicted of having sexual relations with his underage students. He served time in prison, where he was a model prisoner and participated enthusiastically in therapy programs. He also excelled in law school and was s student leader. Following his passage of the bar, the New Hampshire Supreme Court denied his admission. One of the grounds cited by the Committee for the denial was his “glibness.” It appears this refers to what they saw as his overly studied expressions of understanding of his offense and remorse.

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arise, however, when an applicant fails to satisfy all of the elements. What should a board make, for instance, of an applicant who fails to address her victim but does everything else right? Or one who, perhaps on the advice of her attorney, refuses to confess to important details of her wrongdoing? And what if the offense took place recently and the applicant has not had the opportunity to demonstrate her reform but she seems genuinely repentant? We argue—and many of the intuitions expressed in the case law discussed herein support our claim—that shortcomings in any of these regards should raise concerns regarding the applicant’s fitness. Although the central idea that an applicant should admit wrongdoing, accept blame, and undertake reform and redress constitutes the core of apologetic meanings, the thirteen elements help us appreciate why such attitudes and behaviors matter for the ethical practice of law. None of the thirteen elements is trivial. Although an applicant failing to satisfy all of the elements may reasonably be deemed little risk to practice law unethically, each shortcoming should be considered a red flag. Reviewing bodies should recognize those flags, understand the dangers they present, and judge accordingly based on the totality of the circumstances. We do not, after all, offer guarantees that those who apologize well will not act dishonorably. We simply hope for more accuracy in predicting the correlation between past, current, and future behavior and to treat bar applicants more fairly and consistently. V. Concluding Considerations Regarding the Purpose of Character and Fitness Review We conclude with several considerations regarding the general purpose of character and fitness reviews and the role of remorse in such proceedings. First, we should be mindful of the dangers of understanding apologies and remorse in the character and fitness context becoming court-ordered or otherwise involuntary. The practice of ordering offenders to apologize for their deeds has a dark history. Numerous religious traditions routinely tortured subjects until they confessed and repented and authoritarian states have long coerced public statements of “rehabilitation” from dissidents. In this respect, Linda Radzik makes an important and underappreciated claim in Making Amends. “The history of atonement,” she writes, “is in large part a history of degradation.227 As we note above, the strongest candidates for bar admission will have apologized to those they harmed well before the review process; those who appear to apologize only because of the review process should be treated with appropriate suspicion. If an offender recognizes her transgressions as a moral failure, as is required of a categorical apology, something like a sense of duty will motivate her apology. Surely such voluntary apologies hold very different sorts of meanings from expressions of contrition ordered by review committees under the threat of denying admission to the bar. Thus, if a character review committee strongly encourages an applicant to express contrition when the applicant is not inclined to 227. Radzik, Making Amends, supra note 193, at 18.

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do so, the meanings of such contrition are unclear. Should we understand it as an innovative form of restorative justice, an additional deterrent for future applicants, a retributive or even vengeful attempt to humiliate wrongdoing applicants, or some confused hodgepodge of punishment theory? Such questions require reviewers to maintain a clear sense of the objectives of the review and the role of remorse in meeting those goals. So what are those objectives? The National Conference of Bar Examiners Comprehensive Guide to Bar Admissions states: “The primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice.”228 Thus, we first caution review committees against understanding an applicant’s remorse as serving retributive ends. It is not unusual for a victim to desire an apology because she wants the offender to suffer proportionate harm. Immanuel Kant famously understood court-ordered apologies as serving a justified retributive function by humiliating certain classes of offenders, and we can wonder if our intuition that the remorseful applicant should suffer some emotional pain is retributive in nature.229 We may be tempted to believe that those who wrong others deserve to suffer negative emotions and court-ordered apologies are a legitimate and inexpensive means to “magnify the humiliation inherent in conviction”230 as some argue.231 However, in light of the agreed upon purpose of the character and fitness process, reviewers should not understand themselves engaged in a metaphysical exercise whereby they cast judgment on the character of the applicant and exact punishment accordingly, one form of which may be commanding an apology that produces a proportionate amount of emotional suffering in the applicant. Acts of retribution and supplication likely provide little indication of the applicant’s character and likelihood to serve the bar honorably. In creating character and fitness standards, bar associations and courts seek to prevent unscrupulous individuals from joining the legal profession, thereby avoiding future harm to the public and protecting the high standards of the legal

228. NCBEX Guide, supra note 2, at viii, III.7. 229. Immanuel Kant, The Metaphysical Elements of Justice 139 (John Ladd trans., Hackett 1999) (1797). 230. Dan Kahan, What Do Alternative Sanctions Mean?, 6 U. Chi. L. Rev. 591, 631-32 (1996) (Kahan has since revised views in this paper. See Dan Kahan, What’s Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075 (2006)). 231. For additional discussions of “shaming sanctions,” see Andrew von Hirsch, Censure and Sanctions 82-83 (1996); Stephen Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L. Rev. 733 (1998); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055 (1998). 232. Arnold, supra note 8, at 68; Deborah Rhode has suggested that “as a practical matter, it is thought ‘easier to refuse admittance to an immoral applicant than it is to disbar him after he is admitted.’ The vast majority of attorney misconduct remains undetected, unreported, or unprosecuted and bar disciplinary authorities have proved highly reluctant to withdraw individuals’ means of livelihood. Given the difficulties of ex post policing, entry restrictions appear to be a logical means of maximizing public protection.” Rhode, supra note 2, at 509.

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profession.232 Thus, such reviews are consequentialist attempts to gather available evidence in order to predict with a certain degree of confidence that the applicant is likely to uphold the standards of the bar. Reviewing bodies are strictly gatekeepers. Remorse is one predictive tool that allows reviewers to determine if applicants will follow the rules if they are allowed in. It may well be that certain offenses in an applicant’s past present such a risk that a reviewing board cannot, in good conscience, take the chance of allowing the applicant to practice law because doing so would expose the public to unjustifiable dangers. Such a decision differs, however, from one deciding on retributive grounds that the applicant does not deserve to practice law according to some implicit metaphysical standard. Perhaps some offenses are so grave that those who commit them should never be admitted to the bar regardless of their moral transformation. The dissenting opinion in Krule noted in this regard that “the majority has determined that regardless of the amount of positive evidence presented in petitioner’s favor, the nature of petitioner’s offense automatically precludes his admission to the bar.”233 In denying King’s admission to the bar, the Court determined that King’s demonstration of rehabilitation “falls short of the ‘virtually impossible’ showing needed to erase the stain of his serious criminal misconduct.”234 The majority in Dortch suggested this principle outright: “in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make.”235 Other courts have made similar pronouncements. For example, the New Hampshire Supreme Court has stated: “The nature of the wrong committed . . . is central to the determination of present character and fitness to practice law, and a prior conviction for certain serious crimes raises a presumption of unfitness. Indeed, there are some crimes which are so serious that it may be virtually impossible for the applicant to rebut this presumption.”236 We suspect that reviewers often wonder what sorts of offenses “cross the line” and they would benefit from clear direction on this basic issue. If some forms of wrongdoing effectively ban applicants from bar admission, the state courts should name these offenses explicitly. By explicitly identifying “red flag” offenses, those convicted of such offenses would be on notice of the consequences of their actions for a potential legal career. Such convicts could then avoid undertaking the investment of law school and the indignity of being deemed “unfit” regardless of whatever heroic efforts they may have undertaken to rehabilitate their character. The key to doing this will be for some body, perhaps the National Council of Bar Examiners or legal scholars, to undertake a systematic review of potential disqualifying offenses and marshal all available theoretical and empirical evidence to evaluate the correlation between certain varieties of offenses and the ethical

233. 234. 235. 236.

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In re Krule, 741 N.E. 2d at 272. In re King, 136 P.3d at 886. In re Dortsch, 860 A.2d. at 357 (quoting In re Matthews, 462 A.2d 165, 176 (N.J. 1983)). Application of T.J.S, 692 A.2d at 500 (citations omitted).

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practice of law. If some offenses provide an unacceptable likelihood of recidivism while practicing law, the courts, with this type of data, should set their policies accordingly. Such studies, we believe, would much better protect the public interest than the extemporaneous findings of members of individual review committee members regarding which prior offenses preset which sorts of dangers to the public and how an applicant’s remorse mitigates such risks. In some respect, the very language that we are to judge the “character” of the applicant betrays the true role of the reviewers. “Character” is a contested term generating thousands of years of debate, often within diverse religious traditions. The notion that reviewers—who are often volunteers with little if any formal training in such matters—are to look into the soul of the applicant and make a binary pronunciation regarding whether the applicant’s character is good or bad invites impressionistic determinations. Remorse and apology, as we have seen, introduce various additional complexities, biases, and presuppositions. For the sake of both applicants and reviewers, we must remain mindful that the purpose of character and fitness proceedings is to predict the likelihood that an applicant will behave according to the ethical standards of the profession. Apologies and remorse provide indicators of the applicant’s future behavior. Hopefully the framework provided will focus reviewers’ attention on effectively evaluating the relationship between an applicant’s remorse and the likelihood that she will practice law ethically.

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RG 01-02.13_RG 09.05 2/21/13 5:09 PM Page 20 Reprinted with permission.

By Donald R. Lundberg

I’m sorry, so sorry: the element of remorse in professional regulation

ETHICS CURBSTONE

I

’ve been thinking about remorse in professional regulation lately – not so much because I have anything more than the average bear about which to be remorseful. (Feel free to disagree, by the way.) I’ve been thinking about it because it’s such a rich and intriguing topic. Oh, and then there’s the fact that I’m scheduled to be on a panel on the topic this spring. There’s nothing like trying to sound intelligent in front of other legal ethics geeks to focus the mind. Let me try a few thoughts out for size. For my purposes, remorse comes up in at least three distinct contexts. It is, of course, an important consideration elsewhere, not least of which the criminal justice system, but those other settings are beyond the scope of this article.

Bar admission First, remorse is a consideration in the character and fitness review process for bar applicants. If you look at the rule on “good moral character and fitness to practice law,” you won’t see remorse mentioned. Admis. Disc. R. 12(2). But trust me, it’s there. Moral character is to be assessed as of the time of bar application. That said, past events might raise questions about current moral character. Admission & Discipline Rule 12(2) includes a list of types of conduct that are viewed as raising questions about moral character. Conviction of a felony is prima facie evidence of a lack of requisite moral character. Remorse Donald R. Lundberg comes into play when Barnes & Thornburg LLP an applicant who has Indianapolis, Ind. engaged in conduct in [email protected] the past that reflects

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adversely on good character must show the Board of Law Examiners that the conduct is not reflective of current character. Because past conduct is viewed as a fairly accurate predictor of future conduct, the character and fitness inquiry really asks the following question: Will this applicant engage in future conduct that is consistent with character traits the past conduct reveals?

Disciplinary sanctions A second regulatory setting in which consideration of remorse is important is in assessing an appropriate sanction when a lawyer has been found to have engaged in misconduct. It is interesting that the rules governing lawyer discipline say little about how disciplinary sanctions are to be meted out. The rules simply describe a range of sanctions from private reprimand to disbarment. Admis. Disc. R. 23(3)(a). Remorse is often mentioned in the case, but almost never defined. ABA standards, on which the Court sometimes relies, also mention remorse as a mitigating factor, but does not define it. See ABA Standards for Imposing Lawyer Sanctions 9.32(l).

Reinstatement to practice Remorse is a consideration in a third setting: when a suspended lawyer applies for reinstatement to practice. Any lawyer suspended for longer than six months or for a shorter period of time when ordered to do so must prove fitness to resume practicing law by clear and convincing evidence. Here, we have explicit mention in the applicable rule of remorse as a relevant consideration. The petitioner must show that “[t]he petitioner’s attitude towards the misconduct for which he or she was disciplined is one of genuine remorse.” Admis. Disc. R. 23(4)(b)(4).

These three settings consider remorse in similar, but not identical, ways. A lawyer or would-be lawyer has done something in the past that raises a legitimate concern about fitness as a lawyer. Consideration of remorse is part of the predictive enterprise of figuring out whether a person who has done wrong in the past will do so again.

The importance of remorse An aside: The legal profession is not a religious sect. Regulation of admission and the conduct of lawyers already admitted should not go down the treacherous slope of assessing moral purity. Separated from how character bears on the likelihood of future conduct that reflects negatively on fitness to practice law, judging moral purity is a scary and dangerous project. Compare Rule of Professional Conduct 8.4(b), which defines professional misconduct to include criminal conduct that reflects adversely on “honesty, trustworthiness or fitness as a lawyer in other respects.” (Emphasis added.) While they are intriguing questions, serious discussion about whether it is even possible to predict what human beings will do in the future and whether inquiry into remorsefulness contributes to that task is largely irrelevant. It is widely and fervently believed that remorsefulness is predictive of improved conduct in the future, even though the research suggests that the evidentiary support for those beliefs is somewhat weak. Because the import of remorse is so deeply entrenched in the laws’ attempt to predict future conduct, it hardly matters that evidentiary support is weak. It is a fool’s errand for a lawyer or bar applicant to try to convince a regulatory body or a court that remorse doesn’t matter.

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What is remorse? Remorse is important in professional regulation, but what is it? It is like, but not identical to, other emotional states that reflect back on bad acts, like sorrow, contrition, repentance, shame, guilt and grief. What is it that distinguishes remorse from these related emotions? What remorse seems to connote that these other emotions do not is a focus on the effect of one’s bad conduct on others. It is an empathic emotion that aligns itself with the impact one’s actions has on others. It is this outward-directed nature of remorse that inevitably compels an inquiry into actions. If a remorseful person feels so badly about the harm his acts caused others, what has he done about it?

to credibly answer these will raise legitimate questions about whether remorse actually exists.

Proving remorse Like all mental states, state of mind is difficult to convincingly prove directly other than by the proponent of remorse saying it is so. And it is impossible for anyone else to directly disprove it. That

typically leaves both proponent and opponent of the existence of remorse to look to circumstantial evidence. Keep in mind, though, that proof one has acted like one would expect a remorseful person to act is only inferential of the emotional state of remorse. One can act remorseful without being remorseful. (continued on page 22)

Once we understand what remorse is, a related question is whether it is a purely mental state or whether it is impossible for remorse to exist in the isolation of the human mind without manifesting itself through actions of some sort. The victim-focused aspect of remorse raises the possibility that a remorseful state of mind unaccompanied by any gestures toward victims is not remorse at all. I personally take issue with that view, believing remorse to be a pure state of mind. The actions that one would normally expect to flow from remorse are probative of the existence of remorse, but not required for it to exist. Put another way, remorse impels action directed toward the victims of bad conduct, but it does not compel it. Thus, a remorseful person’s description of remorseful feelings, if convincingly sincere, will be some proof, maybe even sufficient proof, of remorse. Yet descriptions of remorseful feelings will inevitably give rise to a series of follow-up questions along these lines: If you are remorseful, why didn’t you [fill in the blank]? The inability RES GESTÆ • JANUARY/FEBRUARY 2013

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ETHICS CURBSTONE continued from page 21 Thus, the proponent of remorse will attempt to show that the putatively remorseful person has done the things that one would expect a remorseful person to do or to have a convincing explanation for having failed to do so. And the opponent will point to the absence of conduct one would expect to see from a remorseful person as a basis for suggesting that remorse does not exist. Proving remorse is most challenging when trying to prove mitigating circumstances in connection with the assessment of an appropriate disciplinary sanction. By contrast, in reinstatement proceedings, the bad acts have already been adjudicated by clear and convincing evidence. There is little hope of showing remorse if the lawyer seeking reinstatement denies the past misconduct.

Similarly, in bar admission matters, the bad acts have usually, but not always, been established by external events – e.g., criminal conviction or academic discipline. It is counterproductive to think that the bar admission process is the appropriate forum for collaterally attacking those events. An exception would be in response to a catch-all question on the bar application that asks whether, since the age of 16, the applicant has ever been “involved in any incidents where there was any challenge to your character, honesty and integrity?” Here there should be room to admit the existence of the challenge, but to demonstrate that it was unfounded. In practice, one typically must choose which path to follow. It is largely untenable to try to have it both ways by arguing that it didn’t happen, but if it did, the applicant is remorseful.

Remorse and denial Showing remorse in connection with lawyer discipline sanctions can be difficult because of how those cases are decided. Under Indiana’s lawyer discipline structure (in contrast to the criminal justice system and disciplinary procedure in some other jurisdictions), absent an order bifurcating the hearing process (which is rare), there is a single, consolidated hearing for the dual purpose of determining whether the lawyer engaged in professional misconduct and, if so, what sanction should be ordered. The respondent is faced with the practical difficulty of arguing alternatively that the Commission did not meet its burden of proving misconduct by clear and convincing evidence; but if it did, the respondent is remorseful. Contesting the charge of misconduct makes a remorse showing difficult, and the respondent has essentially bet his whole stake on prevailing on the defense that there was no professional misconduct. Jeffrey Skilling, the former Enron chief, tried to thread that needle at his sentencing: “In terms of remorse, your honor, I can’t imagine more remorse. That being said, your honor, I am innocent of these charges.” That rings hollow, doesn’t it? Still, it should, at least in theory, be possible for someone to deny legal culpability while feeling genuinely remorseful about the impact of one’s conduct on others. An example would be criminal conduct about which the respondent feels remorse, but that the lawyer can credibly argue does not “reflect adversely on honesty, trustworthiness or fitness as a lawyer in other respects.” Prof. Cond. R. 8.4(b). In that instance, remorse is an understandable response to the conduct regardless of whether (continued on page 24)

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ETHICS CURBSTONE continued from page 22 it has legal significance in lawyer discipline. But in truth, that is an approach that probably demands a more nuanced response than is usually available under the circumstances. A variation of this is when a respondent takes the position that his misconduct was different than

that alleged by the Commission, and that he is remorseful for the conduct the lawyer admits did occur. Like betting on winning outright, the chance of succeeding with this approach will turn on whether the lawyer succeeds in convincing the decision-maker that the respondent’s version of misconduct is the correct one.

Gutman and the meaning of remorse An important Indiana lawyer discipline case and its reinstatement aftermath are especially helpful in shedding light on the meaning of remorse. Matter of Gutman, 482 N.E.2d 456 (Ind. 1985) (order accepting resignation from the bar); 599 N.E.2d 604 (Ind. 1992) (order denying reinstatement). Some of you may recall that Gutman resigned from the bar after being found guilty in a federal criminal case and imprisoned for conspiracy to commit extortion and interference with commerce by extortion for conduct in his role as president pro tem of the Indiana Senate. When he sought to have his law license reinstated, he bore the burden of proving by clear and convincing evidence, among other things, that “his attitude towards the misconduct for which he was disciplined is one of genuine remorse.” 599 N.E.2d at 605, quoting Admis. Disc. R. 23(4)(4). The Court held that he had failed to meet his burden. With respect to the remorse element, the Court’s discussion was enlightening and is worth repeating at some length. As a predicate to its discussion of remorse, the Court suggested that post-misconduct exemplary behavior was relevant to a finding of remorse. But then the Court went on: The Petitioner testified that he regrets that he has not lived up to his own high standards for personal and professional conduct, and in so doing, has hurt himself, his wife, his children, his law partners, the General Assembly and the legal profession. The Hearing Officer determined that the fact remains that the Petitioner has no explanation for his misconduct and does not admit anything other than the use of poor judgment. The Hearing Officer found there was no apology, no offer of restitution to those

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whom Petitioner wronged, but only Petitioner’s regret over how things had turned out for him. The Commission further found that the lack of restitution had an adverse impact on the assessment of remorse as well as their assessment of Petitioner’s appreciation of the wrongfulness of his conduct.

599 N.E.2d at 609. The Court went on: “Issues of mental state, such as remorse, are not easily discernible. However, certain ostensible factors such as apology and concerted effort at restitution can provide strong indication of a remorseful state of mind. Although not a controlling consideration, whether restitution has been made is relevant to the determination of rehabilitation. Failure to make restitution without justification has been a strong indication of lack of rehabilitation.” Id. at 609-610. So where does that leave us? There is no getting around it. Remorse will be an important consideration in some bar admission matters and in all lawyer discipline and reinstatement cases. Beyond the importance of getting on the stand and saying how remorseful one feels about having engaged in misconduct (something not to be underestimated), there are tangible acts that will ordinarily be expected from a remorseful person from which a finder of fact can infer the presence of remorse. Gutman alludes to some of them.

with mental health professionals who can rule in or out explanations for conduct that are rooted in mental health problems, addictions or personality disorders and develop a plan for dealing with underlying causes. Having addressed any underlying pathology, a counselor can also guide the client through a process directed at achieving understanding about why the client acted as he did.

Apology Another badge of remorse is apology. Most conduct that raises professional character concerns will ordinarily have at least one victim. Without an apology, claims of remorse will often be viewed as insincere. There are, of course, apologies, and then there are apologies. A perfunctory “I’m sorry” probably won’t cut it. Neither will one that deflects personal responsi-

bility – most famously cloaked in the passive voice: “Mistakes were made.” An apology that gains headway in proving remorse is one that is personal, sincere and not defensive or diluted by justification. Apology must be seen as different from other events that might flow from apology, such as forgiveness or even reconciliation. The genuineness of the apologizer’s remorse should not depend on the willingness or readiness of the victim to forgive. Apology is not always possible. For example, wrongdoing sometimes does not have a readily identifiable victim. Crimes against the public interest are like that. The kind of personal apology one would offer directly to an identifiable victim is not possible. In those (continued on page 26)

Insight One is insight. The process of remorse should begin with selfreflection and the development of insight into the circumstances and motivations that accompanied a bad act – the “why.” Expressions of remorse will typically ring hollow, as Gutman’s did, if the wrongdoer is unable to explain the behavior. Lawyers can often assist their clients by putting them in touch RES GESTÆ • JANUARY/FEBRUARY 2013

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ETHICS CURBSTONE continued from page 25 instances, a judge will often serve as a surrogate for the harm caused to the public, and an apology to a judicial officer is the best one can do. Apologies to judges at sentencing or similar times are often discounted as too little, too late. But I see that view as downplaying the

symbolic importance of the judicial process. We should remain open to the possibility that the process itself has helped the wrongdoer crystallize his thinking about misconduct and that an apology made to and through a judicial officer is a sign of remorse.

Sometimes apology is not possible because the act of apologizing, while making the wrongdoer feel better, may cause further harm to the victim. Our friends in the recovery movement understand this by including in the ninth step to recovery the making amends to persons who were harmed “except when to do so would injure them or others.”

Restitution The next important element is remediation or restitution. We reasonably expect that a remorseful person will try to undo the harm caused by a bad act, typically by trying to remediate the negative effects of the conduct. As with apology, this is not always possible. Some misconduct does not result in tangible harm that is remediable in the ordinary sense. Here, again, I have in mind acts that cause intangible harm, such as harm to the public interest. It is not a reported part of the Gutman case, but he was stymied in making restitution because he felt that returning illgotten gains from equal wrongdoers accomplished nothing of moral worth. He might have been right. The problem was that he kept the money he took to influence legislation. There were other things that might have been done with the money that would have offset the harm done to the public interest. There may be cases where making restitution causes more harm to the victim than it does good.

Reformation Remorse can also be demonstrated by reformed behavior. At a minimum, this means stopping the misconduct going forward. Without that there is no hope of showing remorse. But beyond that, remorse can be demonstrated by proof of exemplary conduct that is a quantitative and qualitative improvement from the past. 26

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Improved conduct is especially important when it is difficult, for reasons discussed above, to apologize or to make restitution.

Proportionality An important part of the Court’s analysis in Gutman was that the strength of the showing of fitness to practice was a function of the seriousness of the misconduct. “The more serious the misconduct, the greater its negative impact on future rehabilitation and eventual reinstatement, the greater Petitioner’s burden of proof to overcome the implication of unfitness which is conjured by the misconduct.” Id. at 608. The same might be said about showings of remorse. The more serious the misconduct about which one is expected to feel remorseful, the more convincing the demonstration of remorse should be. Lawyers are often called upon to prove or disprove remorse. Regulation of the legal profession is merely one setting where remorse is a relevant legal consideration. Like proof of most states of mind, proving remorse can be difficult. Disproving it can be equally difficult. Inevitably, the goal will be to show the presence or absence of conduct that one would normally expect from a genuinely remorseful person.

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WHAT’S REMORSE GOT TO DO, GOT TO DO WITH IT? BAR ADMISSION FOR THOSE WITH YOUTHFUL OFFENSES MITCHELL M. SIMON∗ “If anything I have said this morning has been misconstrued to the opposite effect, I want to apologize for that misconstrued misconstruction.” Rep. Joe Barton, attempting to apologize for apologizing to BP for the “shakedown” it got from the White House for the Gulf oil spill. June 18, 2010.

I.

INTRODUCTION…………………………………………………………………….. 2

II.

OVERVIEW OF THE CHARACTER AND FITNESS PROCESS……………………………. 6

III.

PURPOSES OF THE CHARACTER AND FITNESS PROCESS…………………………….10

IV.

REMORSE……………………………………………………………………………14 A. Current Use of Remorse in the Character and Fitness Process……………….….14 B. A View of Remorse from the Fields of Social Philosophy and Ethics……….……18 C. The Relationship of Remorse to the Goals of Bar Admission………………..….22

V.

REASONS TO ABANDON THE USE OF REMORSE IN ADMISSION CASES………….….24 A. Incentive on the Applicant to Lie……………………………………………………...24 B. Ethical Difficulties for Lawyers Interviewing and Counseling Applicants with Youthful Offenses……………………………………………………………..…...26

VI.

CONCLUSION…………………………………………….…………………………..34

Professor of Law, University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and Of Counsel, Devine, Millimet and Branch. I am grateful to my research assistants Nicole Negowetti and Brian Buonamano and to my faculty assistant Jeannie French for their hard work on this project. Thanks go also to my colleagues- Dana Remus, Kimberly Kirkland, Carol Langford, Susan Covert, Tom Trevethick and Cindy Landau, who provided helpful critiques of earlier drafts. Finally, I am grateful to the law school administration for their support. ∗

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I. INTRODUCTION A twenty-seven year old man, with several relatively minor criminal offenses in his past, comes to a lawyer seeking guidance on his application for admission to the state bar. He tells the lawyer that he was convicted of driving under the influence of alcohol during the summer before his first year of college and public urination while on spring break in Florida during his junior year. He also was accused of simple assault by a former girlfriend while in his first year of law school. The assault charge stemmed from a heated argument at a party and was later dropped when the girlfriend admitted that there had been no physical contact. The applicant also mentions that he has accrued several thousand dollars of unpaid credit card debt during his educational career. He is concerned about how the state bar’s character and fitness committee is likely to handle his case.1 Law professors, lawyers who practice in the lawyer discipline area, and lawyers with friends or clients who have children in law school frequently face such questions. Unfortunately, even lawyers experienced in these matters may find it difficult to make reliable predictions as to how a character and fitness committee will decide on cases where an applicant has committed

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The author does not intend to minimize the importance of drunk driving or domestic assault by using this example. Rather, the terms “youthful offender” and “youthful mistakes” are used throughout the article to capture the type of judgment errors one frequently observes in younger or immature individuals. These are the types of crimes that are traditionally dealt with by diversion programs and other rehabilitative efforts and thus should be analyzed much differently than a crime warranting prison time. See, e.g., Application of T.J.S., 692 A.2d 498, 502 (N.H. 1997) (holding that an applicant who had been convicted of felonious sexual assault of two students while employed as junior high and high school teacher failed to prove by clear and convincing evidence that he possessed the “good moral character” necessary for practice of law). But see In re Application of Silva, 665 N.W.2d 592, 598 (Neb. 2003) (finding that “[a]lthough Silva's record includes several offenses committed as a juvenile, his most recent and most serious convictions in 1995 cannot be characterized as ‘the act of a naive and callow youth.’”)

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what might be might be described as a combination of “youthful mistakes.”2 Several factors account for the difficulty in how boards will review these cases: 1.The imprecision of using past conduct to draw reliable inferences about future conduct; 2. The failure of the admission rules to provide meaningful substantive guidance to the character and fitness boards; and 3. The resulting broad discretion of these typically volunteer boards whose decisions may be based, in part, on the life experiences of each member.3 Additionally, lawyers seeking to counsel clients in these cases are hampered by the lack of a common understanding of what course of conduct would constitute appropriate rehabilitation for each combination of offenses presented.4 Although the proportion of applicants denied admission to the Bar because of character issues is relatively small,5 the problems outlined above warrant closer examination. Character decisions that rely upon relying on “unnamed and tangled impressions . . . which may lie beneath consciousness”6 run serious risks of error and inconsistency. These determinations may be devastating to an applicant’s goals, livelihood, and reputation.7 Even a temporary delay in bar

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Compare In re Woodard, 803 So.2d 969 (La. 2001)(denying admission to an applicant who had failed to disclose several criminal convictions and held himself out to be a lawyer), with In re Dileo, 307 So.2d 362 (La. 1975)(admitting an applicant who failed to disclose a prior conviction of a misdemeanor and jail sentence for a probation violation). 3 See, e.g., Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 493 (1985). 4 Compare Fla. Bd. of Bar Exam’rs ex rel. John Doe, 770 So.2d 670, 675 (Fla. 2000) (ruling in a case involving failure to report facts on his bar application that despite a spotless career as a lawyer for over 7 years and a favorable work ethic, “merely showing that an individual is doing what he or she should have done throughout life… does not prove his useful and constructive place in society.”), with Fla. Bd. of Bar Exam’rs re L.M.S., 647 So.2d 838 (Fla. 1994) (admitting an applicant who cheated on an exam in her final year of law school and was found worthy of belief by the board because she was “dependable and hardworking,” supported herself through law school and had no similar incidents). 5 See Rhode, supra note 3, at 516 (stating that one in five-hundred applicants from forty-one states in 1982 were denied admission for character and fitness reasons); The Ohio Bar reports that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp. 6 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 248 (1957). 7 Maureen M. Carr, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 GEO. J. LEGAL ETHICS 367, 370 (1995).

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admission may indicate to colleagues that a recent law graduate has character problems.8 In addition, the community may be denied the service of an accomplished and dedicated individual who, despite past mistakes, now may be more committed than others to promoting justice.9 In the twenty-five years since Professor Rhode’s seminal article identifying structural problems in character assessments, no viable alternative has emerged to replace the present bar admission system. Proponents of character and fitness standards have successfully argued that protection of the public demands more of a licensing system than ensuring that a lawyer can pass a two-day exam.10 Assessing an applicant’s fitness to practice, therefore, remains a necessary and highly relevant task.11 In light of this reality and the need to improve the rigor of the character and fitness analysis, this article analyzes one specific factor used in the character and fitness process— namely, an applicant’s remorse in determining whether he or she has demonstrated adequate

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Id. Id. 10 National Conference of Bar Examiners Comprehensive Guide to Bar Admissions vii, III.7 (2009), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide.pdf [hereinafter NCBEX Guide]. It is also interesting to note the history of the process. In the early part of the twentieth century, states began to strengthen character inquires through mandatory interviews, character questionnaires, committee oversight, or related measures. However, the history of these character screenings is tainted by improper motives. “Much of the initial impetus for more stringent character scrutiny arose in response to an influx of Eastern European immigrants, which threatened the profession’s public standing. Nativist and ethnic prejudices during the 1920s, coupled with economic pressures during the Depression, fueled a renewed drive for entry barriers.” Rhode, supra note 3, at 49950; see also Keith Swisher, The Troubling Rise of the Legal Profession’s Good Moral Character, 82 ST. JOHN’S L. REV. 1037, 1041 (2008). Certainly, there could be no current support for use of the character and fitness process to exclude any group or improperly consolidate professional power. 11 “The lawyer licensing process is incomplete if only testing for minimal competence is undertaken. The public is inadequately protected by a system that fails to evaluate character and fitness as those elements relate to the practice of law.” NCBEX Guide, supra note 10, at vii, III.7; see also Carol M. Langford, Barbarians at the Bar: Regulation of the Legal Profession Through the Admissions Process, 36 HOFSTRA L. REV. 1193 (2008); Marcus Ratcliff, The Good Character Requirement: A Proposal For a Uniform National Standard, 36 TULSA L.J. 487, 487 (2000); but see Rhode, supra note 3 at 592. 9

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rehabilitation.12 This factor is most relevant for cases involving youthful offenders. Unlike applicants who were convicted of serious felonies, prompt bar admission is a realistic prospect and remorse is an often-discussed factor for applicants who committed youthful offenses.13 Using literature from the fields of social and legal philosophy and ethics on the nature of apology and remorse, this article argues that inquiry into a bar applicant’s remorse in cases of youthful offenses fails to serve the underlying purpose of the process, and is likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors. Additionally, such inquiry muddies an already complex task and adds little, if anything, to the character and fitness committee’s ability to access the applicant’s candor during the process. Improving analytical precision in the character and fitness process is critical, as otherwise qualified individuals may be dissuaded from applying to law school or pursing law as a career out of fear that conduct in their youth will jeopardize their admission to the bar.14 This article provides an overview of the general character and fitness process (Section II), describes the purposes served by the process (Section III), and analyzes the current use of

12

See, e.g., Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying admission to an applicant with drug offenses whose rehabilitation was described as “remarkable” based on his refusal to admit his guilt at the character and fitness hearing); In re Admission of Saganski, 595 N.W.2d 631 (Wis. 1999)(denying admission because the applicant sought to blame others rather than accepting responsibility). 13 Compare In re Gossage, 5 P.3d 186, 198 (Cal. 2000) (denying admission to an applicant who had killed his sister in a struggle and ruling that given the serious nature of the crime “only if the evidence shows that he is no longer the same person” could he be admitted), and Application of T.J.S., 692 A.2d at 502 (stating that “it must be recognized that in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make”), with In re Kleppin, 768 A.2d 1010 (D.C. 2001) (admitting applicant who had been convicted of conspiracy to distribute marijuana based on factors such as his age at the time of the offense, his excellent law school performance, and his church activities). 14 See Rhode, supra note 3 at 493-94 (“Although the number of applicants formally denied admission has always been quite small, the number deterred, delayed or harassed has been more substantial.”) Professor Rhode suggested that the number of character and fitness denials is less than one percent. Id. at 516-17, n. 116. The Ohio Bar reports that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp.

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remorse by the courts and in social philosophy literature. The article concludes that these purposes are not significantly furthered (Section IV) and that when remorse is a criteria for judging character and fitness, its utility is far outweighed by the ethical issues it presents for both applicants and their counsel (Section V). II. OVERVIEW OF THE CHARACTER AND FITNESS PROCESS Virtually all students entering law school are aware of the bar exam requirement.15 A less well-known requirement is that every state bar currently requires character certification as a prerequisite for bar admission.16 Each state conducts its own character investigations to determine whether an applicant is morally fit to practice law.17 Although state legislatures may enact certain laws affecting the practice of law, they generally have not attempted to intervene in the legal profession’s regulation of bar membership criteria.18 In most jurisdictions, the state bar controls character screening, subject to judicial oversight.19 Each state has discretion to determine its own standards for bar admissions subject to relatively minimal Fourteenth Amendment constraints. The Supreme Court has required only

15

The standards for measuring intellectual fitness are generally uniform among the states, which typically require completing at least three quarters of a baccalaureate degree at an accredited college or university, graduating from an approved law school, and passing a bar examination. Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admissions, 39 CAL. W. L. REV. 1, 11 (2002); NCBEX Guide, supra note 10, at 3-5. For one innovative alternative to the exam requirement, see the Daniel Webster Scholar Program, which is a joint effort of the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and the New Hampshire Supreme Court. See http://www.piercelaw.edu/websterscholar; John Burwell Garvey and Anne F. Zinkin, Making Law Students ClientReady: A New Model in Legal Education, 1 DUKE F. L. & SOC. FOR LAW & SOCIAL CHANGE 101 (2009). 16 Rhode, supra note 3, at 493; NCBEX Guide, supra note 10, at 6-7. 17 Ratcliff, supra note 11, at 492. 18 Rhode, supra note 3, at 496. 19 Id. at 505.

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that the standards have a rational relationship to the “applicant’s fitness or capacity to practice law” and are not related to political, religious or racial status. 20 Although all states have recognized the importance of evaluating bar applicants’ character, procedures to determine moral fitness to practice law vary in scope and substance from state to state.21 Despite differences among the states, the most common method for determining whether a bar applicant possesses the requisite good moral character to practice law is for a bar or court appointed character committee to examine a variety of information regarding the applicant.22 When applicants seek admission to the bar, the applicants have placed their character at issue.23 Therefore, the applicant bears the burden of producing information proving good moral

20

Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957). See also Louisiana Supreme Court Committee on Bar Admissions, Rule XVII. Admission to the Bar of the State of Louisiana, Section 5(H)(1),(2) available at http://www.lascba.org/admission_rules.asp, “In determining an applicant’s character and fitness to practice law in this state, the Panel shall not consider factors which do not directly bear a reasonable relationship to the practice of law, including, but not limited to, the following impermissible factors: (1) The age, sex, race, color, national origin, religion, or sexual orientation of the applicant; or (2) A physical disability of the applicant that does not prevent the applicant from performing the essential functions of an attorney. 21 Rhode, supra note 3, at 506; Ritter, supra note 15, at 14. For example, character investigations may be undertaken by a state bar association while the applicant is in law school, prior to sitting for the bar examination, or subsequent to successful completion of the bar examination. In most states, the bar association processes the application; however, in eleven states a separate agency evaluates character and fitness. NCBEX Guide, supra note 10, at 6-7. 22 See Rhode, supra note 3, at 505. 23 Ratcliff , supra note 11, at 492.

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character.24 Information concerning the applicant primarily comes from standardized bar applications, questionnaires, interviews, and letters of recommendation.25 Typically, bar examiners will inquire into an applicant’s past with questions concerning educational and employment history, finances, criminal and civil misconduct, mental health problems and addictions.26 Essentially, bar character committees determine an applicant’s good moral character by “assessing all of the relevant facts before them.”27 If preliminary character investigations reveal that the application is problematic in any way, “heightened scrutiny” by the bar admission committee is typically triggered.28 The National Conference of Bar Examiners has set forth a list of conduct that warrants further investigation.29 The list includes: [U]nlawful conduct, academic misconduct, making of false statements, including omissions, misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial responsibilities, neglect of professional obligations, violation of an order of a court, evidence of mental or emotional instability, evidence of drug or alcohol dependency, denial of admission to the bar in another jurisdiction on character and fitness ground, disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.30

24

NBEX Guide, supra note 10, at viii. See, e.g. Rule 5B(2), Minnesota Rules for Admission to the Bar (“The applicant bears the burden of proving good character in support of the application.”); Regulations of the Connecticut Bar Examining Committee Edition of 2008, Art. VI-3. Burden of Proof, available at http://www.jud.state.ct.us/CBEC/regs.htm#VI (“The applicant bears the burden of proving his or her good moral character and fitness to practice law by clear and convincing evidence.”). 25 See Richard R. Arnold, Presumptive Disqualification and Prior Unlawful Conduct: The Danger of Unpredictable Character Standards for Bar Applicants, 1997 UTAH L. REV. 63, 65. 26 See, e.g., Petition and Questionnaire for Admission to the Bar of New Hampshire, available at http://www.courts.state.nh.us/nhbar/petition.pdf. 27 Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 NOTRE DAME L. REV. 67, 69 (1984). 28 Ritter, supra note 15, at 15. 29 NCBEX Guide, supra note 10, at viii, III, 13. 30 Id.

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Many states have adopted these national guidelines and have incorporated the list of conduct into their published character and fitness guidelines.31 If the bar committee makes a preliminary determination that the applicant does not meet the state’s standard of good character, the bar notifies the applicant and gives him or her the opportunity, usually by formal hearing, to produce evidence that proves the applicant is of good moral character. 32 At this hearing, the applicant has the right to respond to the matters asserted or charged in the notice, including the right to present evidence and to question witnesses.33 A critical factor in cases involving youthful offenses seems to be the behavior of the applicant during the admission process. For most youthful offenders, their crimes get them personalized scrutiny; but for applicants who committed minor, nonviolent offenses, bar admission is often theirs to lose based on choices they make during the character and fitness process. Factors such as lack of candor, failure to express remorse and failure to demonstrate rehabilitation during the application process appear to play important roles in bar admission denials.34 Once an applicant’s conduct raises an issue of fitness to practice law, especially if prior misconduct involved unlawful acts, he or she may be obliged to demonstrate rehabilitation.35 The National Conference of Bar Examiners has recommended certain factors, which “should be

31

For example, Alaska, Arizona, Illinois, Indiana, Louisiana, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, are among the many states which have included this list of conduct in their published character and fitness guidelines. 32 See, e.g., see Rules for Admission of Attorneys, Oregon Supreme Court, Rule 9.35 available at http://www.osbar.org/_docs/rulesregs/admissions.pdf. 33 Id. at Rule 9.35(6). 34 See, e.g., Application of Allan S., 387 A.2d 271, 276 (Md. 1978). 35 Application of G.L.S., 439 A.2d 1107, 1117-18 (Md. 1982).

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considered in assigning weight and significance to prior conduct.”36 Among these factors are: “the applicant’s age at the time of the conduct, the recency of the conduct, the reliability of the information concerning the conduct, the seriousness of the conduct, the cumulative effect of conduct or information, the evidence of rehabilitation, the applicant’s positive social contributions since the conduct, the applicant’s candor in the admissions process and the materiality of any omissions or misrepresentations.”37 Courts have often also focused on whether the applicant expresses and demonstrated remorse.38 In order to be admitted to the bar in such cases, the evidence of rehabilitation must show that the cause of applicant’s misconduct has been eliminated, that such misconduct will therefore not recur, and that the applicant is therefore currently fit to practice law.39 Once the committee has made a determination as to the fitness of the applicant, it may either recommend the applicant to the state supreme court for admission to the bar, or decline to do so because of the applicant’s failure to prove good moral character.40 Upon an adverse moral

36

NCBEX Guide, supra note 10, at viii, III.15. Id. 38 See e.g., Application of G.L.S., 439 A.2d at 1117 (“The applicant readily admitted that he himself was solely responsible for his participation in and commission of the crime. While he was unarmed and served only as the driver of the get-away car, he recognized no difference in the degree of culpability between himself and the other two persons involved in the crime. Thus the applicant admitted that his criminal acts were morally wrong and indefensible.”); Matter of Peterson, 439 N.W.2d 165, 169 (Iowa 1989) (“Without looking beyond Peterson's 1988 testimony, it becomes apparent that his initial descriptions of the 1976 incident as a technical and minor assault were attempts to mischaracterize the incident. This testimony displays a callous and indifferent attitude toward an explosive personal confrontation.”); Partin, 894 S.W.2d at 909 (“In particular, the Board majority is compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions.”). 39 Ritter, supra note 10, at 15. 40 Ratcliff, supra note 15, at 492. 37

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character determination, the applicant possesses a procedural due process right of appeal to the state supreme court.41 III. PURPOSES OF THE CHARACTER AND FITNESS PROCESS The primary justification for the bar’s moral character requirement is to protect the public.42 “A lawyer should be one whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them.”43 The bar assumes that a history of prior unlawful conduct or “[a] record manifesting a significant deficiency in the honesty, trustworthiness, diligence or reliability” 44 is a significant factor in predicting future dishonesty or misconduct as a practicing lawyer.45 In creating character and fitness standards, bar associations and courts seek to prevent unscrupulous individuals from joining the legal profession, thereby avoiding future harm to the public and protecting the high standards of the legal profession.46 While few would dispute the legitimacy of this goal, there remains a significant dispute as to whether it is empirically supported.47 For example, Professor Deborah Rhode has

41

Ritter, supra note, 10 at 15-16. See also Rules for Admission of Attorneys, Oregon Supreme Court, Rule 9.6. NCBEX Guide, supra note 10, at viii, III.7, “The primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice.” See also Langford, supra at note 11. 43 NCBEX Guide, supra note 10, at viii, III.12. 44 Id. 45 Arnold, supra note 25, at 67- 68. 46 Langford, supra note 11, at 1209; Arnold, supra note 25, at 68; Deborah Rhode has suggested that “as a practical matter, it is thought ‘easier to refuse admittance to an immoral applicant than it is to disbar him after he is admitted.’ The vast majority of attorney misconduct remains undetected, unreported, or unprosecuted and bar disciplinary authorities have proved highly reluctant to withdraw individuals’ means of livelihood. Given the difficulties of ex post policing, entry restrictions appear to be a logical means of maximizing public protection.” Rhode, supra note 3, at 509. 47 See, e.g. McChrystal, supra note 27, at 100 (1984) (“[T]he requirement that applicants prove their good moral character to be admitted to the bar is, standing alone, extremely imprecise.”); Ratcliff, supra note 15, at 495 42

11

questioned the premise that character screening can predict future behavior in light of “the subjectivity of standards, the inadequacy of information and predictive techniques.” 48 Another commentator has observed that evaluating character, like science, deals with certain variables, which are placed into a formula to obtain a result. 49 However, because the concept of character, unlike scientific variables, has no universally accepted definition, major problems arise.50 “Ambiguous notions of good character coupled with vague tests for judging an applicant’s character, have resulted in inconsistent results in bar admission cases.”51 The timing of these reviews also lessens their reliability. The median age of law school graduates is approximately twenty-seven.52 By this age most applicants have not occupied the positions of trust that create the potential for the most common type of attorney misconduct, white-collar offenses. Professor Rhode noted that: Other chronic problems, such as alcoholism, from which later difficulties in practice might stem, are simply not predictable from the applicant’s records. As examiners frequently noted, candidates are generally too young to have made a record for themselves. Several respondents felt they were reviewing “virgin babes in the woods,” whose life histories gave little indication of how they would perform as attorneys.53

(“Ambiguous notions of good character coupled with vague tests for judging an applicant’s character, have resulted in inconsistent results in bar admission cases.”). 48 Rhode, supra note 3, at 493. See also Langford, supra note 11, at 1213-14 (discussing the debate regarding whether there is any correlation between applicants with problem histories who are admitted and later disciplinary action). 49 Ratcliff, supra note 15, at 488. 50 Id. 51 Id. 52 Rhode, supra note 3, at 515. 53 Id. (footnotes omitted). One veteran character and fitness administrator has noted that he sees more serious problems among candidates for admission by motion than in those taking the bar exam. He surmises that this may be because they have had greater chances to get themselves into trouble during the five years of mandatory practice required for admission by motion. Interview, Deputy General Counsel New Hampshire Attorney Discipline Office (July 30, 2010).

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The Supreme Court in Konigsberg v. State Bar of California has recognized the danger of implementing a subjective standard when predicting future fitness to practice law:54 The term “good moral character” has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.55 In light of the lack of empirical evidence on the predictive quality of past conduct, individuals interested in analyzing and improving the process must ask whether each existing requirement for admission, including the need to express remorse, is demonstrably relevant to public protection. There is also a second stated goal of the character and fitness requirement, which is to protect the profession’s image.56 By determining which applicants are morally fit to practice law, the Bar establishes the boundaries of a moral professional community.57 Admitting one with past bad conduct or a history of dishonesty can diminish the reputation of the legal profession, and cause the public to lose confidence in the ability of lawyers to protect and preserve our legal

54

Schware, 353 U.S. 252, 262-63 (1957). Id. (footnote omitted). 56 Langford, supra note, 11 at 1210; Rhode, supra note 3, at 509; Petition of Birmingham, 866 P.2d 1150, 1155 (Nev. 1994) (Steffen, J. dissenting) (“Although I regret the prospect of being viewed as unforgiving or uncaring, I am nevertheless compelled to withhold my approval from Mr. Birmingham's request for admission to practice law in the State of Nevada. I consider the denial of his admission, however difficult, better than the prospect of discretely promoting a deepening and foreboding public disrespect for the legal profession.”). 57 Rhode, supra note 3, at 509. 55

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institutions.58 One author suggests that a lower public perception of lawyers can diminish respect for and compliance with the law itself.59 Public expressions of remorse by those who have engaged in troublesome past conduct could be deemed to advance this second goal. It has been argued that “requiring all applicants to account and, in some instances, to atone publicly for past misconduct is thought to serve important socialization and prophylactic purposes.”60 This second goal, which certainly should not be gainsaid, opens the door to broad and unexamined assumptions about past conduct, even though such conduct is not a predictor of future conduct. The question, therefore, is whether the remorse requirement as currently implemented serves in a meaningful way either of these goals, and, even if so, whether other relevant factors outweigh its value in meeting the goals. IV. REMORSE A. Current Use of Remorse in the Character and Fitness Process

58

Carr, supra note 7, at 379 (1995). The preamble to the Model Rules states that “a lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs . . . . A lawyer should demonstrate respect for the legal system . . . [and] it is a lawyer's duty to uphold legal progress.” The lawyer is a “public citizen” who should “seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession . . . . A lawyer should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” See Langford, supra note 11, at 1210 (citing Harris Interactive, Inc., Doctors and Teachers Most Trusted Among 22 Occupations and Professions: Fewer Adults Trust the President to Tell the Truth: Actors and Lawyers at Bottom, with Pollsters also Fairing Poorly (Aug. 8, 2006), http://www.harrisinteractive.com/harris_poll/index.asp?PID=688). Only 27% of respondents surveyed said they would trust lawyers to tell the truth, while 68% said they would not trust lawyers to tell the truth. Id. 59 Carr, supra note 7, at 379. 60 See Rhode, supra note 3 at 509-10, citing Carothers, Character and Fitness: A Need for Increased Perception, B. Examiner, Aug. 1982, at 25, 31 (noting that a board will frequently interview applicants whose admission it nonetheless recommends, in order to confront them “with the unmistakable fact that their conduct is unacceptable”).

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Courts have consistently looked to remorse as an admission factor, especially in cases of past criminal conduct.61 A study of character and fitness decisions done in 1985 showed that in over one-half of the reported cases, the applicant’s effort to atone or expressions of remorse for prior conduct was explicitly discussed.62 A review of reported cases between 1980 and 2009 involving bar applicants who were youthful offenders shows that this pattern has continued. During this period, 59 out of 128 reported cases analyzed remorse as a decisional factor.63 Interestingly, an applicant’s willingness to express remorse is not often the key to a decision to admit the applicant,64 but the unwillingness to express remorse has been seen by character and fitness committees and reviewing courts as disqualifying.65 Perhaps more significantly, an

61

Rhode, supra note 3 at 544; In re Nathan, 26 So.3d 146, 147 (La. 2010) (“Petitioner knowingly forged the notary's signature on her bar application. This fact was not disputed by petitioner; rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because of the stress she was under at the time.”); Application of K.B., 434 A.2d 541, 545 (Md. 1981) (“It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case.”). 62 Id. 63 See Table 1, infra. A number of the cases not explicitly discussing remorse turned either on alcohol and drug dependency, where remorse does not seem to be relevant, or lack of candor. See e.g., In re Application of Corrigan, 915 N.E.2d 300, 303 (Ohio 2009) (focusing on the applicant’s alcohol problems and his lack of candor with the Committee). Several of the lack of candor cases involve findings that the applicant was untruthful based on refusal to admit culpability, a concept that is related to remorse; Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) (finding lack of candor when applicant was unable to testify consistently about a plagiarism allegation). 64 See e.g., In re Application of Grachanin, 912 N.E.2d 1128, 1130-31 (Ohio 2009) (finding that while applicant deserves credit for expressing remorse, he needs more time to demonstrate that his drinking problems are under control); Martin B. v. Comm. of Bar Examiners, 661 P.2d 160, 161(Cal. 1983) (“The State Bar Court also found the 1973 false claim conviction to be indicative of bad moral character, despite petitioner's free admission of guilt and expression of remorse.”). But see In re Application of Simmons, 584 N.E.2d 1159, 1160 (Ohio 1992) (“We have reviewed the record in this case and are particularly struck, as the board was, with this applicant's forthright confession of and testimony about his misconduct. However, unlike the board, we are satisfied with Simmons' regret and renewed commitment to the standards manifested by the Code of Professional Responsibility and, therefore, find nothing to be gained by allowing another year to pass before Simmons may apply for the bar examination.”). 65 See e.g, Application of Walker, 539 P.2d 891, 897 (Ariz. 1978) (denying admission for failing to make disclosure of failure to register for the draft and for claiming that these acts did not reflect on his character); Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying applicant for his continued insistence on his innocence of charges for which he had been convicted); In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) (Lunberg Stratton, J. dissenting (“Had he admitted to his deceptive acts, I would agree with the majority. But . . . his refusal to accept the responsibility for these misdeeds demonstrates a deeper character flaw that cannot be cured by time. [¶] A lawyer must be honest, ethical, and above reproach. Panepinto clearly has none of these qualities. Therefore, I would permanently deny his application to take the bar exam.”).

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applicant’s refusal to express remorse, even in cases of sincerely held beliefs, often leads to a finding of lack of candor, one of the most damning factors in bar admission cases.66 For example, in Partin v. Bar of Arkansas, the applicant had been convicted of drug possession on three separate occasions and served time in jail.67 His last offense was approximately seven years prior to this application, and his first offense occurred over twenty years ago. Partin declined to admit his guilt to the charges or to express remorse. The Character and Fitness Board found compelling that “the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions.”68 Partin attempted to focus the hearing on his rehabilitation, which the Arkansas Supreme Court described as “remarkable,” rather than on what he asserted was mere past conduct.69 Though not in the court’s decision, one can not help but surmise that the applicant may well have been one who disagrees with the nation’s drug laws, at least as they relate to marijuana.70 Had Partin chosen to express remorse and admit his past criminality, he would very likely have been admitted, based on the findings of other rehabilitation, his clean record for almost ten year and the nature of his offenses.71 The Arkansas Supreme Court placed great emphasis on the Board’s findings of lack of remorse and the resulting lack of candor to deny admission to Partin.72

66

See Partin, 894 S.W.2d at 908-10; In re Childress, 561 N.E.2d 614 (Ill. 1990); Hallinan v. Comm. of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966); Siegel v. Comm. of Bar Examiners, 514 P.2d 967 (Cal. 1973). 67 Partin, 894 S.W.2d at 908-10. 68 Id. at 909. 69 Id. at 911. 70 “If an offender disagrees with the statute under which the court convicts her, for instance if the state finds an advocate of marijuana legalization guilty of possession, should a judge increase her punishment unless she apologizes? Once again, these questions seem especially important in the absence of a robust set of moral values shared by a community.” NICK SMITH, I WAS WRONG: THE MEANINGS OF APOLOGY 256 (2008). 71 See, e.g., In re Dileo, 307 So.2d 362 (La. 1975) (admitting an applicant with drug offenses four years prior who had made “great advancements towards rehabilitation” and was candid with the Board). 72 Id. at 910-11.

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Mr. Partin unsuccessfully sought to rely on Martin B. v. Committee of Bar Examiners.73 In that case, Martin B., while serving as a U.S. Marine, was acquitted of rape on a defense of consensual intercourse. In a later trial involving a separate accusation of rape by a different complaining witness, a jury deadlocked 11 to 1 in his favor, and the court dismissed the charge. Still later, he was convicted of filing a false claim against the government. The California State Bar Court refused to certify him for admission to the Bar and conducted a “retrial” of the rape charges, calling live witnesses, and ultimately concluded that Martin B. had lied to that Court in maintaining his innocence.74 The California Supreme Court reversed based on due process concerns and recognized that, had Martin B. made a “pragmatic” admission to the Bar Court of his guilt in the rape incidents, it probably would have recommended his admission to the Bar on the basis of his rehabilitation. The Court wrote: Special problems arise when a finding of falsehood is based upon a denial of guilt. Had petitioner expressed guilt and remorse, the Committee would not have found that he had “lied” at the hearings; the passage of nine years’ time with an unblemished record probably would have sufficed to show rehabilitation and bring about his admission. Petitioner, however, was acquitted of three of the charges long ago, and had the remaining charges dismissed; he should not be forced to now claim guilt, particularly since he has remained adamant about his innocence for the past ten years. Otherwise, it would leave the door open to a dangerous practice by the Committee to force applicants previously acquitted of criminal charges, or even merely arrested with charges later dropped, to “admit” guilt.75 Despite this language casting doubt on whether refusals to express remorse are useful in determining an applicant’s fitness to practice, the California Supreme Court has acknowledged

73

661 P.2d 160 (Cal. 1983). Id. at 161. 75 Id. at 164-65. 74

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that true remorse may have a probative value. In Hightower v. State Bar, the court noted that “rehabilitation ... is a ‘state of mind’ and the law looks with favor upon rewarding with the opportunity to serve, one who has achieved ‘reformation and regeneration.’”76 Hightower was seeking admission after having been previously denied for prior unauthorized practice of law while a law student. During his second hearing, he continued to insist that he had been authorized to take certain of the disputed actions by his supervising attorneys. A Bar investigator, focusing on remorse and candor, reported to the panel that petitioner “is still fighting the findings, and rationalizing his conduct. It would seem that [petitioner] still does not adequately understand nor comprehend the nature of his actions.”77 However, the Court, while recognizing the potential importance of true remorse, again declined to require the petitioner to adopt the hearing panel's version of the facts, in effect confessing that he lied, in order to be fit to practice law. It wrote: In analogous situations, we have recognized that similar conduct by an applicant does not disqualify him. [R]efusal to retract his claims of innocence and make a showing of repentance appears to reinforce rather than undercut his showing of good character.... An individual's courageous adherence to his beliefs, in the face of a judicial or quasi-judicial decision attacking their soundness, may prove his fitness to practice law rather than the contrary. We therefore question the wisdom of denying an applicant admission to the bar if that denial rests on the applicant's choosing to assert his innocence regarding prior charges rather than to acquiesce in a pragmatic confession of guilt, and conclude that [he] should not be denied the opportunity to practice law because he is unwilling to perform an artificial act of contrition.78 These cases demonstrate some confusion in how character and fitness committees and courts treat remorse for purposes of bar admission. Given the overall lack of clear guidance to

76

666 P.2d 10, 14 (Cal. 1983) (citations omitted)(internal quotation marks omitted). Id. at 12. 78 Id. at 13 (citations omitted). 77

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committees in making these decisions, it is critical that they carefully examine the relevance of the factors they purport to use. Thus, committees and applicants need to better understand the justification for the underlying requirements of remorse and apology. B. A View of Remorse from the Fields of Social Philosophy and Ethics Scholars in the fields of social and legal philosophy and ethics have considered the meaning and implications of remorse in a much more rigorous fashion than have the courts and bar admission systems.79 Their work provides a better analytical framework on which to evaluate the use of remorse in this context.80 Remorse is an oft-stated factor in admission cases; yet it is rarely, if ever, defined.81 A leading professor of law and philosophy has described the related concepts of remorse, repentance and atonement in the following manner: Remorse (as bad conscience) is… often best understood as the painful combination of guilt and shame that arise in a person when that person accepts that he has been responsible for seriously wronging another human being—guilt over the wrong itself, and shame over being forced to see himself as a flawed and defective human being who, through his wrongdoing, has fallen from his own ego ideal. Shame should provoke

79

Compare Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO ST. J. CRIM. L. 423 (2007) and Nick Smith, The Categorical Apology, 4 J. SOC. PHIL. 473 (2005) with Partin, 894 S.W.2d at 908-10. One commentator wrote: “Unfortunately remorse has proven to be an increasingly ambiguous concept, which state court judges have had a great deal of difficulty applying in any coherent or consistent manner.” Bryan H. Ward, Sentencing Without Remorse, LOY. U. CHI. L.J. 131, 132 (2006). 80 The author does not mean to in any way minimize the impact of religious scholars on this area of thought. However, mainly for reasons of space and expertise, this article will not address that scholarship. Also, Professor Murphy has argued that such scholarship may be less relevant to legal decisions, such as criminal law. “Our secular concepts of repentance and remorse no doubt have at least in part of their origin in religion, but the secular meaning of those concepts can differ substantially from at least some religious meanings.” Murphy, supra note 79, at 431 n.18. See Smith, supra note 70, at 114-25 for an excellent overview of the role of apologies in diverse religious and cultural traditions. 81 See, e.g., Application of Greenberg, 641 P.2d 832 (Ariz. 1980); In re Crossly, 839 S.W. 2d 1 (Ark. 1992). See also Table 1 infra.

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repentance—the resolve to become a new and better person—and guilt should (where this is possible) provoke atonement—embracing whatever personal sacrifice may be required to restore the moral balance that one’s wrongdoing has upset and to vindicate the worth of one’s victim, a worth that one’s wrongdoing has symbolically denied. This may be the sacrifice of liberty or even life… or it may be a sacrifice of resources….82 To be useful in legal contexts such as criminal law and admission cases, presumably atonement would need also to have a communicative aspect- i.e., an apology.83 Using this framework to examine what might be called “true remorse,” the reasons why such actions are of value and worthy of our respect become easier to discern. First, it is commonly thought that a “person who is sincerely remorseful and repentant over his wrongdoing exhibits a better and more admirable character than a wrongdoer who is not repentant.”84 Perhaps more importantly for bar admission purposes is the notion that individuals who are truly remorseful and repentant, as defined above, are “less dangerous, less likely to do wrong again, than those who are unremorseful and unrepentant.”85 In light of the primary purpose of bar admission--protecting the public, this latter belief, which would strongly support the use of remorse, needs further analysis.

82

Murphy, supra note 79, at 438. In State v. Burgess, 943 A.2d 727,738 (2008), a case finding that a sentencing court may not draw a negative inference of lack of remorse from a defendant's silence at sentencing, the Court looked to two dictionary definitions of remorse. It wrote that: “Remorse’ is defined as ‘a gnawing distress arising from a sense of guilt for past wrongs,’ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1921 (unabr. ed. 2002), or ‘deep and painful regret for wrongdoing,’ RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1214 (1966). Thus, for a defendant to truthfully express remorse, he must to some degree acknowledge wrongdoing or guilt.” 83 Smith, supra note 70, at pp. 253-562 (“Apologies can anchor our moral lives, promising that our actions never drift too far from our values…. [A]pologizing can mark an occasion when we pause and self-consciously honor our abstract moral beliefs—we have wronged or have been wronged and we must denounce the trespass or risk losing the value jeopardized by it. Because of their importance to our moral growth, apologies have become integral to twelve-step programs such as Alcoholics Anonymous that attempt to reorient the moral lives of their members.” 84 Murphy, supra note 79, at 438. 85 Id. at 439.

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Important empirical questions are presented by the assertion that those who express remorse are less likely to wrong again. The author of the above article neither cites studies nor other data for this assertion.86 Also, he expresses his own doubts in the same paragraph about the validity of the claim. He writes: I hope this is true, but I am not sure. The wrongdoer can be self-deceptive or just honestly mistaken about the sincerity of his own repentance, and even the sincerely repentant wrongdoer can suffer from weak will. It is not for nothing that the term “backsliding” plays a role in both our moral and religious vocabularies, and the concept of weakness of will… has produced a vast body of philosophical and religious writing.87 Similarly, Professor Rhode passionately argued that the use of remorse in admission cases is flawed because it is founded on a faulty empirical premise: That “certain attitudes are sufficiently predictive of subsequent misconduct to justify the costs of the certification process.”88 Another important insight from the world of social philosophy is that even if the use of remorse in admission cases is valuable in cases of serious wrongs, it is much less valuable in

86

Id. Id. See also Application of T.J.S., 692 A.2d 498, 501 (N.H. 1997)(finding the applicant to be “too articulate, glib and adept at explaining away his past behavior”). 88 Rhode, supra note 3, at 545-55. Professor Rhode also criticized the general character system and wrote that “the current administration of the moral character criteria is, in effect, a form of Kadi justice with a procedural overlay… The process is a costly as well as empirically dubious means of securing public protection. Id. at 584. See also Carr, supra note 7, at 373 (1995) (“In addition to problems in determining degrees of moral turpitude and wrongdoing, past offenses simply may not be a reliable gauge of present character.”). Further support for this conclusion can be found in a study of Virginia’s revision of its parole system. The study found two factors that had some relationship to recidivism: prior felony drug convictions or prior adult incarcerations. However, it also found that a number of factors commonly used in the admission process- such as age at time of offense, were irrelevant. Interestingly, it found the only demographic factor that was potentially significant to differentiate recidivism among subgroups was gender, a factor that most would agree should not be used in bar admission decisions. See Brian J. Ostrom, et al. OFFENDER RISK ASSESSMENT IN VIRGINIA 1 (2002). 87

21

minor and often victimless crimes, the subject of this article.89 Yet, it is precisely here that failure to express remorse has real consequences.90 There is certainly no way that one convicted of manslaughter or rape will be admitted without a demonstration of full rehabilitation, one that will necessarily include an in-depth inquiry into whether the applicant is truly remorseful.91 Presumably, in such cases, the absence of remorse would also play a role in society’s commonly held belief that “ the very worst of evildoers are those who are utterly without remorse for the evil that they have done.”92 In fact, in the criminal sphere, lack of remorse is often used in major crimes as an aggravating factor.93 It is difficult to apply this mode of analysis to those just starting out in the profession with, for example, marijuana and alcohol arrests. While they should realize what they did was illegal, it may be fruitless in today’s college culture of binge drinking and casual drug use to expect them to “capture those extremely powerful guilt feelings that are appropriately attached only to grave wrongs and harms.”94

89

Murphy, supra note 79, at 433. See, e.g., Fla. Bd. of Bar Examiners ex rel. M.L.B., 766 So.2d 994 (Fla. 2000) (“Words of promise ring hollow where there is no recognition of the wrongfulness of the conduct established by the legal record.”). 91 See, e.g., In re Manville, 538 A.2d 1128 (D.C. 1988); In re King, 136 P.3d 878 (Ariz. 2006). 92 Murphy, supra note 79, at 424. But see Cynthia Ozick’s argument that expression of remorse by a dying young Nazi soldier who had participated in the murder of many Jews should be seen as an aggravating factor in our judgment of him. She asserts that the remorseful murderer shows that he was not a thoughtless thug or sociopath, but rather that he had a moral conscience at the time of his act and thus knew he was doing evil. SIMON WIESENTHAL, THE SUNFLOWER 209-10 (rev. & expanded ed.,1997) 93 Id. In addition to the use of lack of remorse in the criminal sphere, refusal of a respondent to acknowledge the wrongful nature of the misconduct is an aggravating factor in determining the appropriate sanction in attorney discipline. See ABA STANDARDS FOR IMPOSING LAWYER DISCIPLINE 9:22. Also, remorse for one’s misconduct is considered a mitigating factor. Id. at 9.32(l). 94 Murphy, supra note 79, at 430. States differ on how they treat these offenses as well. The Executive Director of one state bar indicated that his examiners functions under a double standard for drug and alcohol offenses. They “say nothing about a guy who gets in brawls and fist fights in bars because they figure he’s just a good ol’ boy… but 90

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The literature also suggests that the role of remorse may be very different not only based on age, but based on the massive social class, racial and cultural differences we have in the legal system.95 Sociologists Ronald Everett and Barbara Nienstedt have written that “[c]ultural values inculcated in certain racial/ethnic minorities may prohibit such required displays of remorse, just as the judge’s cultural values may preclude him or her from perceiving a valid expression of remorse from a member of a different racial/ethnic group.”96 C. The Relationship of Remorse to the Goals of Bar Admission With this background, the real question is whether the current use of remorse in bar admission cases furthers the system’s goals of public protection and upholding the profession’s image. If evaluating remorse furthers either of these goals, but not in a fundamental way, one must also ask if it has other costs that outweigh any utility. As argued above, there is scant, if any, empirical evidence that a youthful offender who does not express remorse presents a greater danger of violating the profession’s norms in the future than an applicant who does.97 Nor is there any epistemological support for the vague notion that one who expresses remorse has a more admirable character than one who declines to do so.98 In fact, our legal history is replete with tales of headstrong young individuals, committed

the Board gets upset about drugs, even in small amounts.” Rhode, supra note 3, at 538. Interview, Exec. Dir., Nev. St. B. Ass’n (August 16, 1982). 95 Id. at 451 96 Ronald S. Everett & Barbara C. Nienstedt, Race Remorse, and Sentence Reduction: Is Saying You’re Sorry Enough?” 16 JUST. Q. 99, 117-18 (1999), noted in Ward, supra note 79, at 136. 97 Murphy, supra note 79, at 439; Rhode, supra note 3, at 545-55. 98 Murphy, supra note 79, at 438.

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to their own beliefs, who have gone on to make significant improvements in our legal system and culture.99 Similarly, requiring statements of remorse in the private hearing before Character and Fitness Committees certainly is not the kind of action that will enhance the profession’s image with the public, since those outside the hearing room will not know this fact. One could argue that reported cases denying admission for those who fail to express remorse improve the image of the public. But it would be hard to show that many in the public are aware of these cases or would take this meaning from them. Even if looking to remorse is not a key component of meeting the stated goals of the bar admission system, there seems to at least be some common understandings of the role of remorse that relate to those goals. Given the low standard of review the Supreme Court places on such requirements- i.e, that they have a rational relationship to the “applicant’s fitness or capacity to practice law,”100 there is probably not a strong legal challenge to its use. However, in light of its dubious relevance, committees and courts should look to the potential harm caused by allowing this factor in admission decisions. V. REASONS TO ABANDON THE USE OF REMORSE IN ADMISSION CASES A. Incentive on the Applicant to Lie

99

See, e.g., Douglas O. Linder, Who is Clarence Darrow? http://www.law.umkc.edu/faculty/projects/ftrials/darrow.htm (last visited June 23, 2007) (“ As a son of the village infidel, Clarence is bequeathed ‘a nonconforming spirit, a skeptical mind, and freelance politics that drifted toward cynicism.’ His oratorical skills are already in evidence. He participates in town debates on the issues of the day-always argues the negative, always wins.”). 100 Schware, 353 U.S. at 239.

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The cases described in this article establish that refusing to properly express remorse has significant consequences.101 Even in those few cases where the court overturned the decision of the Board and admitted an applicant despite failing to express appropriate remorse,102 the applicant suffered significant delay and likely had to incur costs, including attorney fees and lost earnings.103 In the majority of cases discussing lack of remorse, the outcome was much more severe, denial of admission.104 In light of this relatively clear line of authority, it seems fair to assume that many applicants, if made aware of the significant role that remorse plays in bar admissions, will extend an apology for their conduct to the character and fitness committee. This is likely true even if the individual does not feel true remorse because he or she (1) truly believes in their factual innocence, even in the face of a conviction or plea;105 (2) believes the crime for which they have been convicted or charged is based on an improper law;106 or (3) is unable, especially in victimless crimes, to see the need for an apology.107

101

See, e.g., Florida Bd. of Bar Examiners ex rel. M.L.B., 766 So.2d 994 (Fla. 2000). See Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d 34 (Fla. 1995); Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160 (Cal. 1983). 103 For example, in the M.C.A. case, the case took over two years to move through the system. Also, at least at the Supreme Court level, she was represented by counsel. There are certainly financial consequences to such delays, including lost job, lost wages and lost opportunity for advancement. Fla. Bd. of Bar Exam’rs re M.C.A. 650 So.2d at 34. 104 See, e.g., Application of David H., 392 A.2d 83, 87 (Md. 1978)(“[T]he applicant's determination to conclude his criminal activity apparently did not flow from an “inborn” resolve to change his moral character; rather, the change was wrought as a result of the consequences to the applicant which emanated from his prosecution for those theft offenses for which he was apprehended by the police. Had he not been caught, the applicant, according to his own account, may well have continued to steal.”). 105 Hightower, 666 P.2d at 14; Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d at 34. 106 Such may be the case with offenses for marijuana, alcohol or tobacco possession. TYLER TR. WHY PEOPLE OBEY THE LAW (1990) (finding that if people regard legal authorities as legitimate, they are less likely to engage in  illegal behaviors such as speeding or illicit drug use; however, those who deny the moral appropriateness of  different laws are more likely to speed or use illicit drugs); Smith, supra note 70 at 256. See also Partin, 894 S.W.2d at 910. 107 Murphy, supra note 79, at 447. 102

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The requirement of remorse may thus result in encouraging applicants to lie, as well as cheapening any real value that remorse might serve. As philosopher Jeffrie G. Murphy has written: [A] practical problem with giving credit for remorse and repentance is that they are so easy to fake; and our grounds for suspecting fakery only increase when a reward (e.g., a reduction in sentence, clemency, pardon, amnesty, etc.) is known to be more likely granted to those who can persuade the relevant legal authority that they manifest these attributes of character.108 Such would certainly be the case in bar admission. As the California Supreme Court stated, “Not only does such coercion [in essence forcing applicants to “admit” guilt] damage one’s reputation and self-esteem, it forces applicants to lie. Dishonesty is a quality we wish to prevent, rather than promote, in the members of our bar.”109 Similarly, and perhaps more importantly, making remorse and the requisite apology a de facto requirement for possible bar admission removes the value served by this concept, true resolve to be a better person.110 In order to be a meaningful apology, the offender must, among other factors: agree to the underlying facts, accept causal responsibility rather than express mere

108

Murphy, supra note 79, at 440. (“As Montaigne observed, there is ‘no quality so easy to counterfeit as piety—an observation echoed, so I have been told, by a Hollywood mogul who said this of sincerity: ‘Sincerity is the most precious thing in the world. When you have learned to fake that, you’ve got it made.’” See also Smith, supra note 70 at 4 (“The Federal Sentencing Guidelines allow judges to reduce punishment if a criminal defendant expresses remorse, giving convicts incentive to utter words of contrition penned by their attorneys, but leaving the judiciary with little means of differentiating between profound expressions of regret and perfunctory attempts to please the court.”); STANTON WHEELER, ET. AL., SITTING IN JUDGMENT: THE SENTENCING OF WHITE-COLLAR CRIMINAL 117 (1988), noted in Ward, supra note 79, at 135 (“ If you give too much consideration to it [remorse] then you are a sitting duck, I suppose for sham protestations of remorse and breast-beating, and buckets of tears and appeals of sympathy. And I have no doubt that some are more genuine than others, but you have got to do the best you can to evaluate those.”). 109 Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160, 164-65 (Cal. 1983); Paradoxically, expressions of remorse in situations where the party expressing remorse is getting some tangible legal benefit should perhaps make us more suspicious of the validity of the expression. One could argue that a person who is truly remorseful would not seek a benefit from the expression, “but would rather see that punishment as one step in a perhaps endless road of atonement.” Murphy, supra note 79, at 440. 110 Smith supra note 70, at 3 (“[A]pologies seem better suited to a context of moral reconciliation.”).

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sympathy and apply a shared set of moral values with the wronged party.111 Without these factors, remorse in bar admission proceedings may be nothing more than another step in our “culture of apology,” what theologians have called “cheap grace.”112 It is difficult to see how encouraging either “non-apology apologies,” like that quoted from Representative Barton at the opening of this article or, worse yet, perjurious statements substantially furthers the goals of the admission system. B. Ethical Difficulties for Lawyers Interviewing and Counseling Applicants With Youthful Offenses Given the severe consequences for an applicant who does not express remorse, lawyers in admission cases also face a significant ethical challenge. Knowing the consequences of failure to express remorse, the lawyer must resolve a much debated ethical quandary- namely, how to meet one’s duties of competence and diligence in counseling and witness preparation, while not running afoul of the lawyer’s duties of truthfulness to tribunals.113 In admission cases, this tension plays out when the lawyer, knowing that a remorseful applicant will have a far better chance of admission than a recalcitrant one, decides how to interview the client. Does the lawyer tell the client what is legally relevant before seeking to gather the underlying facts from the client?

111

Smith, supra note 79 at 476-80. Murphy, supra note 79, at 434. 113 Compare ABA Model Rules of Prof’l Conduct (hereinafter Model Rules) R. 1.1 (requiring competence) and 1.3 (requiring diligence and al lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf” cmt. 1), with R. 3.3 (requiring candor to tribunals). 112

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This tension results from the somewhat conflicting roles that lawyers confront in all cases.114 Lawyers must, of course, competently represent their clients.115 Many lawyers would find it difficult to accomplish this task without at least getting the client’s version of the facts.116 However, if the lawyer “knows” facts that hurt the client, she would be precluded from allowing the client to testify to contrary facts.117 In the admission context, this would mean that if the applicant told the lawyer that she was not remorseful, the lawyer in most situations could then not offer contrary testimony. Because of this ethical constraint on false testimony and the difficulty of representing a client if one remains intentionally ignorant, some lawyers have developed techniques to “learn the facts but not ‘know’ them.”118 Professor Gillers offers two versions of this technique: Consider the following solution attributed to one prominent lawyer: I never ask the client what it is that he contends are the facts from his point of view in the initial interview… [in order to avoid being] compromised [in deciding whether to put him on the witness stand]. The thing to do is to ask him what he suspects the other side might claim. And on November 29, 1994, Harvard law professor Alan Dershowitz said this on the Charlie Rose Show: “ I never ask a client whether he did it or not. I don’t want the client to feel that he has to start his relationship with me by lying.”119

114

In his seminal article, Professor Freedman referred to this as the “trilemma.” He argued that a lawyer cannot seek out all the relevant facts and keep that information confidential, while also being candid with the court. Monroe Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH L. REV. 1469 (1966). 115 Model Rules R. 1.1 and 1.3. 116 See STEPHEN GILLERS, REGULATIONS OF LAWYERS 394 (8th ed. 2009). 117 Model Rules R. 3.3 (a)(3) (“A lawyer shall not knowingly… offer evidence that the lawyers knows to be false. If a lawyer, the lawyers’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal….”); see also Nix v. Whiteside, 475 U.S. 157 (1986)(denying a criminal defendant’s ineffective assistance of counsel claim for his lawyer refusing to allow the defendant to testify falsely). 118 GILLERS, supra note 116, at 394. 119 Id.

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Professors Freedman and Smith offer a more nuanced, and perhaps less cynical, view of how lawyers should understand the issue of actual knowledge.120 They look to studies on the psychology of memory and conclude that much of our common understanding of memory is flawed. Rather than seeing memory as a “process of reproducing or retrieving stored information, in the manner of a videotape or a computer,” they argue that it is really a process of reconstruction.121 Understood this way, they suggest that a witness to an unclear or ambiguous situation actually “fills up the gaps of his perception by the aid of what he has experienced before in similar situation…or by describing what he takes to be ‘fit’ or suitable to such a situation.”122 Thus, they argue that a client’s initial story, especially if provided in an unprompted narrative, will have many important facts omitted123 and may reconstruct events “without being in the least aware that he is either supplementing or falsifying the data of perception.”124 Regardless of how one views this issue, lawyers will still be confronted with the question of whether they should, or must, tell clients the law before asking them to relate the underlying facts.125 In the admission context, such information certainly would include notice that lack of remorse for the past crimes may be sufficient to keep the applicant out of the bar.

120

MONROE H. FREEDMAN AND ABBE SMITH, UNDERSTANDING LAWYERS’ ETHICS, 202-16 (3rd ed. 2004). Id. at 205. 122 Id. at 206 (citations omitted). 123 Id. at 211. 124 Id. at 206 (citations omitted) 125 See, e.g. ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE- THE DEFENSE FUNCTION, Standard 4-3.2(b), as reprinted in PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES ( John S. Dzienkowski ed., 2010-2011 ed.) (“Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take actions which would be precluded by counsel’s knowing of such facts.”). 121

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Law students often learn about this quandary through the book, Anatomy of a Murder.126 In the book, a lawyer defends a soldier who has been charged with killing his wife’s alleged rapist. The defendant during the initial interview tells the lawyer that he in fact sought out the rapist and shot him in a bar. In response, the lawyer indicates that based on the facts as the defendant related them, he would have no defense. However, if he was insane due to blind rage, there was a chance he could avoid jail. Not surprisingly, the defendant, Lt. Manion, then tells the lawyer that he does not recall much about the shooting and likely “blacked out.”127 The question of whether this lawyer acted ethically has been much debated.128 It cannot be doubted that a lawyer may provide a client with a description of the applicable law.129 However, the line between advising a client and prompting perjury remains unclear.130 One scholar quoted and agreed with Judge Francis Finch of the New York Court of Appeals, who wrote: While a discrete and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide for his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.131 He concludes his analysis by suggesting that when interviewing a witness, a lawyer should continuously think about whether there is a legitimate purpose for the next question or the next

126

ROBERT TRAVER, ANATOMY OF A MURDER (1958) (25th Anniversary ed. 1983). Columbia Pictures released the movie version in 1959. 127 GILLERS, supra note 116, at 395. 128 See, e.g, John S. Applegate, Witness Preparation, 68 TEXAS L. REV. 277, 300-04 (1989); Freedman and Smith, supra note 120, at pp. 202-16; Richard Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1 (1995). 129 Applegate, supra note 128 at 301; RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 cmt. b (2000) (“Preparation consistent with the rules of this section may include the following: … discussing the applicability of law to the events at issue….”). 130 Compare Freedman and Smith, supra note 120, with Wydick, supra note 128, at 50. 131 Wydick, supra note 128 at 52 (quoting In re Eldridge, 37 N.Y. 161, 171 (1880).

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statement. If there is, the lawyer should then make sure that the question is asked or the statement is made in the manner least likely to harm the quality of the witness's testimony.132 Professors Freedman and Smith reach a very different conclusion.133 They argue that based on the psychology of memory, a lawyer should first try to elicit facts in the narrative form. They urge a lawyer at this point to remain skeptical about the accuracy and completeness of the information.134 Concluding that in most cases the lawyer will be unable to know the truth, they suggest that the ethical lawyer do the following: In most cases, however, the lawyer can properly give the client relevant legal advice and ask leading questions that might help draw out useful information that the client, consciously or unconsciously, might be withholding. This procedure presents risks of prompting the client to falsify evidence, but it is necessary to draw out truthful information that the client might have overlooked or might consciously or unconsciously be withholding.135 Despite years of debate, there does not seem to be an authoritative answer to this debate.136 One must still ask why this ethical issue, which is present in many cases where the witness’s recollection of facts may be dispositive, should affect the use of remorse in admission cases. There are two key distinctions between the normal manner in which lawyers face this question and that presented in the admission context. First, many cases present this ethical dilemma in a starkly different situation, one involving what might be called a pure factual contest- e.g., did the defendant actually see the

132

Id. Freedman and Smith, supra note 120, at 215-16. 134 Id. at 216. They note that there will certainly be some situations, though rare, where the properly skeptical lawyer will know that the client’s first version is true. 135 Id. 136 Professor Freedman uses in his book an anecdote where he asked two professors at a prestigious law school if they would provide a list of all countries without extradition treaties to a client who has just been convicted and is free on bail. One would provide the list, and one would not. Asked privately later by Freedman whether they thought the other’s response was unprofessional, each answered no. Freedman and Smith, supra note 120, at 197. 133

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victim with a gun before he shot him. That was the underlying factual context in Nix v. Whiteside.137 In cases of this type, the lawyer usually will have to deal with conflicting testimony from other witnesses and physical evidence. Thus, the wisdom of putting on client testimony concocted by the defendant without proper counseling to meet the “lecture” is profoundly suspect. As Justice Blackmun wrote in the Nix case: [T]he lawyer’s interest in not presenting perjured testimony was entirely consistent with Whiteside's best interest. If Whiteside had lied on the stand, he would have risked a future perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the jury might have concluded that Whiteside lied as well about his lack of premeditation and thus might have convicted him of first-degree murder. And if the judge believed that Whiteside had lied, he could have taken Whiteside's perjury into account in setting the sentence. In the face of these dangers, an attorney could reasonably conclude that dissuading his client from committing perjury was in the client's best interest and comported with standards of professional responsibility.138 Similar natural impediments to giving the remorse lecture seem to be less likely to exist. Granted there will be some cases where the key issue is not one of “pure fact,” but is rather the client’s state of mind. Anatomy of a Murder, discussed above, is one such case.139 However, even in that situation, there likely will be many historical facts available to test the assertion-- statements the defendant made, his conduct on the night of the crime, etc. Remorse

137

Nix v. Whiteside, 475 U.S. 157 (1986). Id. at 187-88 (Blackmun, J., concurring) (citations omitted). See also ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE- THE DEFENSE FUNCTION, Standard 4-3.2(b), as reprinted in PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES (John S. Dzienkowski ed., 2010-2011 ed.) (“Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take actions which would be precluded by counsel’s knowing of such facts.”). 139 TRAVER, supra note 126. 138

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though is a moving target; one who never felt the pangs of guilt for a minor drug conviction can, either truthfully or simply to gain admission, discover his remorse.140 This fact also presents another practical problem. How does the committee determine if the applicant is truly remorseful? If the applicant declares his remorse and the committee finds it not credible, the applicant, as has happened in prior cases, is then virtually certain to be disqualified for the more serious lack of candor.141 This was the case in Application of K.B.142 In that case the Maryland Court of Appeals reversed the Board’s recommendation to admit K.B, despite a conviction for fraudulent use of credit cards. The Board, after a full hearing, found that: [T]he

Applicant is quite sincere in his repentance; he has done penance by making restitution to the oil company for improper use of the credit cards. He has been more than a model citizen since his sole slip from grace. He has given of his time and talents for his religious faith, which quite obviously means a great deal to him. He is faithful in his obligation as a father both financially and emotionally as attested by an affidavit executed by his former wife (in whose custody is his son...) as late as October 27, 1980, in which she extols (K.B.) as projecting an image of one “with strong Christian virtues,” “an honest and trustworthy person.”143 The Court though found that K.B. was not of good moral character, in part, due to its disbelief that K.B. was remorseful. It looked to the applicant’s testimony that he was rehabilitated at the time of his arrest. The Court expressed its disagreement with the factual findings of the Board and wrote:

140

One experienced character and fitness administrator has stated: “When applicants appear unrepresented, they are often unprepared, disorganized, defensive to questions asked by Committee members, and quite often they have never even considered what they should stress to prove they have rehabilitated themselves. In addition, they often appear to be cavalier about their youthful indiscretions. By the time that a first negative report is submitted to the Court, and a formal hearing is requested, however, they have often retained counsel who has the opportunity to attempt to present the applicant in an entirely different manner.” Interview, Deputy General Counsel New Hampshire Attorney Discipline Office (July 30, 2010). 141 See Martin B. v. Comm. of Bar Exam’rs, 661 P.2d at 164. 142 Application of K.B., 434 A.2d 541 (Md. 1981). 143 Id. at 544.

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It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case. As [in a prior case] “the applicant's determination to conclude his criminal activity apparently did not flow from an ‘inborn’ resolve to change his moral character....” After fifteen months of credit card fraud, the criminal activity terminated when K.B. was arrested.144 Based on this, the Court found him not credible and denied his application.145 Second, and perhaps more importantly, the admissions process is an inopportune time and place to ask an attorney and the applicant to grapple with this question. It is here that we most need lawyers to set a tone of professionalism. For those applicants without clinical experience in law school, this may be the first time where they, as an aspiring lawyer, confront the actual practice. Regardless of how one resolves the issue of the “lecture,” there is something about the process of having this discussion in as amorphous an area as remorse that is unlikely to help build confident and committed professionals. This discomfort is well demonstrated in Jess Walter’s recent novel The Zero. He describes a scene in which an attorney for an individual who lost her spouse on 9/11 is preparing to go before the compensation panel. The dialog goes as follows: “Now. Dependents. You would be entitled to one hundred fifty thousand for each dependent . . . but you and your husband had no children, is that correct? “Yes,” April said meekly. “That’s correct.” “But at one time you were planning to have children.” “No, we weren’t.” “I just mean, at one point, there was certainly talk of children,” he said, as if dropping a hint. “Young couple . . . that kind of thing.” “No. I told you. We were separated.” “Right. I understand. We’ve established that. But surely at some point you talked about having children. “No. It never came up.”

144 145

Id. at 545. Id. at 546.

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He turned his body again, wearily, as if it were a strain to look away from his PowerPoint presentation, and his hand went quickly back to the rash on his neck. “Look. Mrs. Kraft. I don’t mean to tell you what to say, but what couple doesn’t at least talk about having children? See? These are the kinds of details that can influence the examiner and the special master and have an impact on compensation---” “We had no plans for kids.” “---a young, attractive couple, their lives ahead of them, who had once planned for a family but were going through a difficult period, a temporary trial separation---” “I can’t have children,” April said quietly. “I had a hysterectomy when I was nineteen.”146 Such conversations are difficult in any situation. But how an applicant is interviewed and prepared to testify in admissions hearings, with so much at stake, will certainly have a powerful impact on how the applicant develops his or her norms and notions of how to practice law. This is a unique opportunity for the applicant to develop and refine what Professor Kimberly Kirkland identifies as ethical “habits of the mind.”147 Especially for those not going into firms with well-developed mentoring programs, this early phase of their development is crucial. One empirical study of small firm lawyers in New York found the early experiences of lawyers are the key to forming their practice and ethical structure.148 Professor Levin wrote: What I found striking, however, is that the lawyers I interviewed rarely spoke of lessons learned in law school when they described their ethical decision-making. Instead, they seemed to form their conclusions about how to resolve certain ethical questions during their early years in practice. Colleagues and mentors often affected their decision-making when first confronted with ethical issues. Their early conclusions appear to stay with these lawyers as they move through practice. Once these lawyers become more experienced, they do not seem to reconsider ethical questions they have previously addressed.149

146

JESS WALTERS, THE ZERO, 171-72 (2008). Kimberly Kirkland, Ethics of Large Law Firms; The Principle of Pragmatism, 35 U. MEM. L. REV. 631, 636-37 (2005) (“The degree of variation in the norms at play in large law firm bureaucracies makes the experience of work in large firms fundamentally different from that in small firms and plays a crucial role in shaping large-firm lawyers' unique habit of mind.”). 148 Leslie C. Levin, The Ethical World of Solo and Small Law Firm Practitioners, 41 HOUS. L. REV. 309 (2004) 149 Id. at 376. 147

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I do not mean to suggest that giving the lecture in appropriate cases is unethical. Passionate advocacy and competence are norms that should be modeled and nurtured. But the profession, especially in non-criminal cases, must guard against allowing advocacy to cross the line to complicity in perjury. This is especially true since, as has been demonstrated above, inquiring into remorse in cases of youthful offenses does not measurably further the goals of the admission process. Those goals, especially protecting the public, can be advanced by the committee doing traditional fact-finding on tangible key issues, such as the applicant’s candor during the application process and the nature of the underlying offenses. As one scholar has written in the criminal context: Even without gestures of contrition from offenders, the legal process can establish a factual record, assign blame, excuse accidents, identify and affirm the values breached… levy penalties, and oversee the completion of sentences and redress. What, then, does forced apology from the defendant add?150 The answer to this question seems to be little, if anything. In fact, including remorse in the calculus seems only to force committee members to evaluate the applicant’s “interior life and determine the nature of her beliefs, values, emotions, or intentions, thereby differentiating genuine contrition from staged attempts to manipulate the system….”151 VI. CONCLUSION

150 151

Smith, supra note 70, at 256. Id. at 257.

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This article is in no way attempting to minimize the importance of expressions of sincere remorse.152 Nor is the intent to suggest that in cases of serious crimes, it is invalid for character and fitness committees to look at remorse to protect the image of the legal profession and to help determine if the applicant poses a future risk. However, in cases of youthful offenses, remorse seems not to further the goals of the bar admission process in any meaningful way. In light of this, it can becomes either a trap for the unwary153 or a litigation game played at a time when the applicant needs to develop a deeper sense of the rules and norms of advocacy and the profession. Given the lack of scientific precision in the process of assessing one’s fitness to practice law, character and fitness committees should constantly evaluate the efficacy of the factors they are using and the inferences to be drawn from the applicant’s deviation from that standard. Measured that way, remorse, in youthful offense cases, takes on a role vastly disproportionate to its utility.

Table 1 Cases Dealing with “Youthful Offenders” from 1980-2009 Table 1 Cases Dealing with “Youthful Offenders” from 1980-2009

State Alabama

Arizona

Admitted or Denial Reversed

Case Reese v. Bd. of Comm’rs of Ala. State Bar, 379 So.2d 564 (Ala. 1988) Morris v. Character & Fitness Appeals Bd. of Ala. State Bar, 519 So.2d 920 (Ala. 1988) Application of Greenberg, 614 P.2d 832 (Ariz. 1980)

152

Denied or Delayed

Remorse Discussed

X X X

X

“We instinctively understand that certain kinds of apologies can be life transforming for both the victims and the offenders. Some apologies, however, can be worse than none at all.” Smith, supra note 70, at 17. 153 See, e.g., Desy v. Bd. of Bar Exam’rs, 894 N.E.2d 1135, 1138 (Mass. 2008).

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Arkansas

California

Connecticut

District of Columbia

Application of Walker, 539 P.2d 891 (Ariz. 1980) Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) Smith v. State Bd. of Law Exam’rs, 187 S.W.3d 842 (Ark. 2004); In re Crossley, 839 S.W.2d 1 (Ark. 1992) In re Gossage, 5 P.3d 186 (Cal. 2000) Seide v. Comm. of Bar Exam’rs, 782 P.2d 602 (Cal. 1989) Hightower v. State Bar of Cal., 666 P.2d 10 (Cal. 1983) Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160 (Cal. 1983) Scott v. State Bar Examining Comm., 601 A.2d 812 (Conn. 1992) Friedman v. Conn. Bar Examining Comm., 824 A.2d 866 (Conn. App. 2003) Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) In re Bedi, 917 A.2d 659 (D.C. 2007) In re Kleppin, 768 A.2d 1010 (D.C. 2001)

Florida

In re Lindmark, 747 A.2d 1148 (D.C. 2000) In re Mustafa, 631 A.2d 45 (D.C. 1993) In re Polin, 596 A.2d 50 (D.C. 1991) In re Demos, 579 A.2d 668 (D.C. 1990) In re Manville, 538 A.2d 1128 (D.C. 1988) Fla. Bd. of Bar Exam’rs re M.B.S., 955 So.2d 504 (Fla. 2007) Fla. Bd. of Bar Exam’rs v. S.P.M., 851 So.2d 694 (Fla. 2003) Fla. Bd. of Bar Exam’rs ex rel. O.C.M., 850 So.2d 497 (Fla. 2003) Fla. Bd. of Bar Exam’rs ex rel. R.L.W., 793 So.2d 918 (Fla. 2001) Fla. Bd. of Bar Exam’rs ex rel. John Doe, 770 So.2d 670 (Fla. 2000) Fla. Bd. of Bar Exam’rs ex rel. M.L.B., 766 So.2d 994 (Fla. 2000) In re Fla. Bd. of Bar Exam’rs ex rel. P.K.B., 753 So.2d 1285 (Fla. 2000) Fla. Bd. of Bar Exam’rs re G.J.G., 709 So.2d 1377 (Fla. 1998) Fla. Board of Bar Exam’rs Re J.E.G.R., 725 So.2d 358 (Fla. 1998) Fla. Bd. of Bar Exam’rs re N.W.R., 674 So.2d 729 (Fla. 1996)

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Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d 34 (Fla., 1995) Fla. Bd. of Bar Exam’rs re L.M.S., 647 So.2d 838 (Fla. 1994) Fla. Bd. of Bar Exam’rs re F.O.L., 646 So.2d 185 (Fla. 1994) Fla. Bd. of Bar Exam’rs re B.H.A., 626 So.2d 683 (Fla. 1993)

Georgia

Illinois Iowa

Louisiana

Maryland

Fla. Bd. of Bar Exam’rs re R.B.R., 609 So.2d 1302 (Fla. 1992) Fla. Bd. of Bar Exam’rs re D.M.J., 586 So.2d 1049 (Fla. 1991) Fla. Bd. of Bar Exam’rs re J.H.K., 581 So.2d 37 (Fla. 1991) Fla. Bd. of Bar Exam’rs re R.D.I., 581 So.2d 27 (Fla. 1991) Application of VMF for Admission to the Fla. Bar, 491 So.2d 1104 (Fla. 1986) Petition of Diez-Arguelles, 401 So.2d 1347 (Fla. 1981) Fla. Bd. of Bar Exam’rs Re: L. K. D., 397 So.2d 673 (Fla. 1981) In re Cook, 668 S.E.2d 665 (Ga. 2008) In re White, 656 S.E.2d 527 (Ga. 2008) In re K.S.L., 495 S.E.2d 276 (Ga. 1998) Application of Cason, 294 S.E.2d 520 (Ga. 1982) In re DeBartolo, 488 N.E.2d 947 (Ill. 1986) In re Hanus, 627 N.W.2d 223 (Iowa 2001) Matter of Peterson, 439 N.W.2d 165 (Iowa 1989) In re Nathan, 26 So.3d 146 (La. 2010) In re Brown, 951 So.2d 165 (La. 2007) In re Bryant, 922 So.2d 471 (La. 2006) In re Laughlin, 922 So.2d 475 (La. 2006) In re Vendt, 924 So.2d 89 (La. 2006) In re Knightshead, 862 So.2d 967 (La. 2003) In re Vanderford, 827 So.2d 1122 (La. 2002) In re Woodard, 803 So.2d 969 (La. 2001) In re Lamont, 929 So.2d 1228 (La. 2006) In re Adams, 829 So.2d 1012 (La. 2002) In re Ansell, 788 So.2d 1172 (La. 2001) In re Brown, 895 A.2d 1050 (Md. 2006) Application of G. L. S., 439 A.2d 1107 (Md. 1982) Application of K. B., 434 A.2d 541 (Md.

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Massachusetts

Minnesota Nebraska

Nevada New Jersey

New York

North Carolina Rhode Island

1981) Application of G S., 433 A.2d 1159 (Md. 1981) Application of Maria C., 451 A.2d 655 (Md. 1982) Desy v. Bd. of Bar Exam’rs, 894 N.E.2d 1135 (Mass. 2008) Strigler v. Bd. of Bar Exam’rs, 864 N.E.2d 8 (Mass. 2007) Matter of Prager, 661 N.E.2d 84 (Mass. 1996) In re Haukebo, 352 N.W.2d 752 (Minn. 1984) In re Application of Silva, 665 N.W.2d 592 (Neb. 2003) In re Converse, 602 N.W.2d 500 (Neb. 1999) Application of Majorek, 508 N.W.2d 275 (Neb. 1993) Petition of Birmingham, 866 P.2d 1150 (Nev. 1994) Application of McLaughlin, 675 A.2d 1101 (N.J. 1996) Application of Strait, 577 A.2d 149 (N.J. 1990) Application of Matthews, 462 A.2d 165 (N.J. 1983) In re Anonymous, 857 N.Y.S.2d 812 (App. Div. 2008) In re Anonymous, 840 N.Y.S.2d 259 (App. Div. 2007) In re Anonymous, 785 N.Y.S.2d 129 (App. Div. 2004) Matter of Kesselman, 473 N.Y.S.2d 826 (App. Div. 1984) Matter of Elkins, 302 S.E.2d 215 (N.C. 1983) In re Roots, 762 A.2d 1161 (R.I. 2000)

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South Dakota Vermont Ohio

Application of Widdison, 539 N.W.2d 671 (S.D. 1995) In re Bitter, 969 A.2d 71 (Vt. 2008) In re Application of Corrigan, 915 N.E.2d 300 (Ohio 2009) In re Application of Grachanin, 912 N.E.2d 1128 (Ohio 2009) In re Application of Wagner, 893 N.E.2d 499 (Ohio 2008) In re Application of Rogers, 891 N.E.2d 736 (Ohio 2008) In re Application of Creighton, 883 N.E.2d 433 (Ohio 2008)

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Oregon

In re Application of Blackwell, 880 N.E.2d 886 (Ohio 2007) In re Application of Phelps, 878 N.E.2d 1037 (Ohio 2007) In re Application of Lynch, 877 N.E.2d 656 (Ohio 2007 In re Application of Alban, 877 N.E.2d 658 (Ohio 2007) In re Application of Howard, 855 N.E.2d 865 (Ohio 2006) In re Application of Ralls, 849 N.E.2d 36 (Ohio 2006) In re Application of Olterman, 835 N.E.2d 370 (Ohio 2005) In re Application of Dickens, 832 N.E.2d 725 (Ohio 2005) In re Application of Bagne, 808 N.E.2d 372, (Ohio 2004) In re Application of Valencia, 757 N.E.2d 325 (Ohio 2001) In re Application of Wylie, 733 N.E.2d 588 (Ohio 2000) In re Application of Kapel, 717 N.E.2d 704 (Ohio 1999) In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) In re Application of Kemp, 703 N.E.2d 769 (Ohio 1998) In re Application of Hayes, 689 N.E.2d 547 (Ohio 1998) In re Application of Mitchell, 679 N.E.2d 1127 (Ohio 1997) In re Application of Nemec, 679 N.E.2d 685 (Ohio 1997) In re Application of Kantor, 680 N.E.2d 955 (Ohio 1997) In re Application of Kapel, 651 N.E.2d 955 (Ohio 1995) Application of Parry, 647 N.E.2d 774 (Ohio 1995) In re Application of Wang, 640 N.E.2d 837 (Ohio 1994) In re Application of Samuels, 639 N.E.2d 1151 (Ohio 1994) In re Application of Piro, 613 N.E.2d 201 (Ohio 1993) In re Application of Simmons, 584 N.E.2d 1159 (Ohio 1992) In re Application of Carroll, 572 N.E.2d 657 (Ohio 1991) In re Application of Palmer, 572 N.E.2d 668 (Ohio 1991) In re Beers, 118 P.3d 784 (Or. 2005)

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Texas

Wisconsin

In re Carter, 49 P.3d 792 (Or. 2002) Application of Monaco, 856 P.2d 311 (Or. 1993) Application of Rowell, 754 P.2d 905 (Or. 1990) Application of Taylor, 647 P.2d 462 (Or. 1982) In re Covington, 50 P.3d 233 (Or. 2002) Bd. of Law Exam’rs of State of Tex. v. Coulson, 48 S.W.3d 841 (Tex. App.Austin 2001) Bd. of Law Exam’rs of State of Tex. v. Allen, 908 S.W.2d 319 (Tex. App.-Austin 1995) In re Bar Admission of Rippl, 639 N.W.2d 553 (Wis. 2002) In re Admission of Saganski, 595 N.W.2d 631 (Wis. 1999) Matter of Heckmann, 556 N.W.2d 746 (Wis. 1996) In re Bar Admission of Vanderperren, 661 N.W.2d 27 (Wis. 2003) Matter of Gaylord, 456 N.W.2d 590 (Wis. 1990)

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