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-- AndrewMcCormick - 13 Nov 2009
Although I'm sure it needs no announcing, this project is still a work in progress | |
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< | This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect a(n) historical investigation of character and fitness as professional concepts would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and caselaw in order to (1) explore the history of character as a professional credential and (2) to search out historic applications of character and fitness standards. | >
> | This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect a(n) historical investigation of character and fitness as professional concepts would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and caselaw in order to (1) explore the history of character as a professional credential and (2) to search out historic applications of character and fitness standards. | | | A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding religion, political affiliation, and potentially homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin. However, it is likely thin for a reason. | | | Every state bar currently requires some form of character and fitness examination, as do most other countries (Rhode citing The Bar Examiner’s Handbook, S. Duhl 2d ed. 1980 - apparently unavailable online, in need of scanning). | |
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< | Rhode argues that, throughout its history and into the present day, character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, Legal Ethics, 490-491). Despite her characterization of C&F standards as "showpieces", she argues that "within the American Bar moral character requirements have been a fixed star in an otherwise unsettled regulatory universe... virtue remained a constant prerequisite, in form if not in fact," as "during the coure of the study [it became apparent that] bar examiners rarely exclude candidates on grounds of character, and generally report encountering few cases of serious misconduct" (Rhode, Moral Character as a Professional Credential, MoralCharacterCredential, 491.) | >
> | Rhode argues that, throughout its history and into the present day, character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, Legal Ethics, 490-491. See attachment below). Despite her characterization of C&F standards as "showpieces", she argues that "within the American Bar moral character requirements have been a fixed star in an otherwise unsettled regulatory universe... virtue remained a constant prerequisite, in form if not in fact," and "during the course of the study [it became apparent that] bar examiners rarely exclude candidates on grounds of character, and generally report encountering few cases of serious misconduct" (Rhode, Moral Character as a Professional Credential, MoralCharacterCredential, 491.) | | | A cursory look at secondary sources indicates the first litigation over character and fitness standards was during the McCarthy? era, theoretically supporting Rhode's thesis of character as a non-effectual standard. However, the historical track of admission suggests early practices were personal, informal, and less likely to be litigated. Additionally, the screening future lawyers for character issues may take place earlier than bar exams; for example, at the time of gaining an apprenticeship, or upon applying for law school.
Rise of Character as a Professional Credential for Lawyers. | |
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> | The English system suggests informal character selection. In Britain Solicitors received training and eduction by apprenticeship, usually in their teens. One can hardly imagine a solicitor not considering character in selecting a student to work in his office for two gears. The Inns of Court, which provided barristers with accreditation, required presence at meals and casual debates over a number of days in the year; again, one can hardly imagine the Inns not basing admission on partially on character. The British program did not transplant itself across the Atlantic. | | | | |
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< | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The "Body of Liberties" of Massachusets Bay, 1641. Available here: BodyofLiberties, fascinatingly prohibits legal representatives from taking fees in section #26. Similarly, the Fundamental Constitutions of the Carolinas (1669), Carolinas, article 70 proclaims lawyering for money as "base and vile". | >
> | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The "Body of Liberties" of Massachusets Bay, 1641. Available here: BodyofLiberties, fascinatingly prohibits legal representatives from taking fees in section #26. Similarly, the Fundamental Constitutions of the Carolinas (1669), Carolinas, article 70 proclaims lawyering for money as "base and vile". The disdain for lawyers was not limited to legislatures, the public also held them in disdain. J. McMaster, A History of the Poeple of The United States: From the Revolution to the Civil War (1927) "With the merchants, in the condemnation of the multitude, were joined the lawyers. Indeed, of the two classes, the memers of the bar were the more hated and despised. The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern... They were denounced as banditti, as blood-suckers, as pick-pockets, as wind-bags, as smooth-tongued rogues." (as an aside, an interesting side project would be investigating early letters and publications targeting lawyers - if anyone's interested, beginning with Benjamin Austin's letters signed "Honestus" might be a starting point) | | | | |
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< | Character and fitness standards may have been a "showpiece", to borrow Rhode's term, designed to achieve two ends: (1) quell the dislike of lawyers by non-lawyer classes, especially until lawyers became an accepted fixture of American professional culture and (2) to provide some semblance of maintaing Britian's elite solicitor class by attempting to give American lawyers elevated personal status. | >
> | Character and fitness standards may have been a "showpiece", to borrow Rhode's term, designed to achieve two ends: (1) quell the dislike of lawyers by non-lawyer classes in early America, especially until lawyers became an accepted fixture of American professional culture and (2) to provide some semblance of retaining Britain's elite solicitor class by attempting to give American lawyers elevated personal status. | | | | |
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> | Friedman argues that "As soon as... society posed problems for which lawyers had an answer..., layers began to thrive, despite the hostility.", here. As the profession grew, one might hypothesize that established lawyers would use character and fitness standards to limit entry to the profession for economic reasons. Alternatively, lawyers may have had class-based motivations; between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman), and elite class may have developed character standards as barriers for entry. However, Rhode's empirical research suggests that if were this a motivation, it was an ineffective ploy. | | | | |
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J. McMaster? , A History of the Poeple of tThe United States: From the Revolution ot the Civil War (1927) (Rhode pincites 302 for "bloodsuck[ing] legal practices). Available as a searchable pdf document here
Lefler, Hugh Talmage. 1956. North Carolina History told by contemporaries. Chapel Hill: University of North Carolina Press. (pincite to 87 for "will eat out the very Bowels of our Commonwealth")
Friedman argues that "As soon as... society posed problems for which lawyers had an answer..., layers began to thrive, despite the hostility.", here. As the profession grew, one might hypothesize that established lawyers would wish to use character and fitness standards to limit entry to the profession for economic reasons. Alternatively, lawyers may have had class-based motivations; between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman, linked above), and elite class may have developed character standards as barriers for entry. However, Rhode's empirical research suggests that if were this a motivation, it was an ineffective ploy.
George Sharswood, in An Essay on Professional Ethics (1884), EssayonProfessionalEthics demonstrates the shift from wishing to eliminate the legal profession to a desire to hold it to a high standard, "the things we hold dearest on earth... we confide to the integrity of our legal counsellors[sic] and advocates. Their character must be not only without a stain, but without suspicion." | >
> | George Sharswood, in An Essay on Professional Ethics (1884), EssayonProfessionalEthics demonstrates the shift from wishing to eliminate the legal profession to a desire to hold it to a high standard, "the things we hold dearest on earth... we confide to the integrity of our legal counsellors[sic] and advocates. Their character must be not only without a stain, but without suspicion." Lawyers became an established fixture of American commerce, | | | During 18th and 19th centuries, bar examinations were orally administered before a judge... | | | Rise of the Legal Profession in America (Volumes 1&2), Chroust, University of Okla. 1965. | |
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> | Lefler, Hugh Talmage. 1956. North Carolina History told by contemporaries. Chapel Hill: University of North Carolina Press. (pincite to 87 for "will eat out the very Bowels of our Commonwealth") | | | |
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