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-- AndrewMcCormick - 13 Nov 2009 | |
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< | Although I'm sure it needs no announcing, this project is still a work in progress | >
> | This remains a work in progress, and is not quite finished draft. I'm considering this to be part one of the project, a general overview of my area of interest, and I plan to revise and add a section of more specific work this semester after spending more time reading Hamlin and Chroust, and visiting the NY Hist. Soc.
Contents
1. Character and Fitness: a ubiquitous, historically present standard. But a significant one?
2. Rise of Character as a Professional Credential for Lawyers:
3. The Uses of "Character and Fitness" as a Bar to Entry – Caselaw:
4. The Role of Education in Character and Fitness:
5. Character, Fitness, Race, and Gender. A very short comment.
6. Partially Integrated/Otherwise Interesting sources:
7. Sidebar of Related Projects:
8. Attachments: | | | 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 case law 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. | | | During 18th and 19th centuries, bar examinations were orally administered before a judge, and according The Troubling Rise of the Legal Profession's Good Moral Character "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." Obviously, this invites questions regarding "reported instances". | |
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< | Several instances in a 1907 Yale Law Journal article suggest that bar admissions criteria were severely lax, and one might suppose the ease of entry would extend to character standards. In Kentucky, a candidate who was unable to supply any correct answers to legal questions was admitted on the theory that no one would employ him "anyhow." (Rhode in FN20, quoting Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Chroust thought that same instance, along with one other from the same state and a story from California, demonstrated how "deplorably lax, in the main" bar examinations could be saying, | >
> | Several instances in a 1907 Yale Law Journal article suggest that bar admissions criteria were severely lax, and one might suppose the ease of entry would extend to character standards. In Kentucky, a candidate who was unable to supply any correct answers to legal questions was admitted on the theory that no one would employ him "anyhow." (Rhode in FN20, quoting Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Chroust thought that same instance, along with one other from the same state and a story from California, demonstrated how "deplorably lax, in the main" bar examinations could be saying: | | | following two paragraphs need block quoting
"In Kentucky a candidate was unable to give one single correct answer. Nevertheless, he was admitted on the ground stated officially by the Court which acted as an examining board that "no one would employ him anyhow."The question of character fitness of another candidate was duly met by the statement of the court that he "had never fought a duel with deadly weapons either in the state or without the state with a citizen of the state [of Kentucky]" (Chroust II, 38). | | | The end of 19th and beginning of 20th century saw formalization and stiffening of policies, but number of those denied entry for character reasons remained very small. In 1878 the ABA formed in New York, including formalizing rules for character, "Court of Appeals fixed requirements for preliminary education and proof of character" and required that "as a condition precedent to admission to the Bar, the character of each applicant will be subjected to a scrutiny which will be genuine and not perfunctory." (Smith, Admission to the Bar in New York, 16 Yale L.J. (1907), attached below as 16_YLJ_514). Before that time, there was no code of ethics and education remained informal. See generally, The ABA's Bar History page. | |
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< | | | | The Uses of "Character and Fitness" as a Bar to Entry: Caselaw. | |
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< | Despite their small number, the cases present cases offer points of interest. The common standard, as taught in law schools, is that issues of fraud are serious, as are financial crimes or crimes that would be easily committed in the course of legal practice. Other crimes less relevant to legal practice (e.g., assault) are less serious, but dishonesty and problems with disclosure regarding even minor crimes are also very serious. | >
> | Despite their small number, the cases present cases offer points of interest. The character standard, as taught in modern law school, is that issues of fraud are serious, as are financial crimes or crimes that would be easily committed in the course of legal practice. Other crimes less relevant to legal practice (e.g., assault) are less serious, but dishonesty and non-disclosure regarding even minor crimes are very serious. | | | Schware v. Board, 353 U.S. 232 involved a New Mexico man's denied entry to the bar on account of failing to show "good moral character." Among other minor crimes, his eight year membership in the communist party, from 1932-1940, was the major concern. The Court established in an 8-0 opinion that character and fitness requirements must comport with the Due Process Clause, and that party membership did not show bad character, especially over a decade later. | | |
The Role of Education in Character and Fitness | |
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< | Early lawyers used apprenticeship which was a filtering device... (rhode, et al) | >
> | As discussed above, early lawyers used apprenticeship which we can assume was a filtering device. Hamlin's work (attached at bottom) includes discussion of apprenticeship as well as photographs of hand-written documents contracting apprenticeship. In very early colonial America many attorneys were English trained, and Hamlin extensively outlines the substantial cost of such education. In western states, for a time, "the aversion to the lawyer went so far that almost anyone but a trained lawyer was regarded as a fit person to sit on the bench", and individual study was generally the path to becoming a lawyer and, as the bar examinations were cursory, education's role in determining character and fitness was nonexistent during that period. | | | | |
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< | After the 19th century, law schools may have been responsible for legal ethics. Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237). This would suggest an interesting and difficult historical project - discovering what the historical standards were for character assessment by law schools during the early and middle 20th century (if curious, Rhode has surveyed present standards here). | >
> | After the 19th century, law schools may have been responsible for legal ethics. Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237). This would suggest an interesting and difficult historical project - discovering what the historical standards were for character assessment by law schools during the early and middle 20th century. It is not difficult to imagine that early law schools' admissions practices would serve similar functions of attorneys taking on apprentices, or Inns of Court in their admissions. (if curious, Rhode has surveyed present standards here). | | |
Character, Fitness, Race, and Gender. A very short comment. | |
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< | I initially suspected that character and fitness could be used as a proxy for racial, religious, or gender values. This may have been short sighted, as until relatively late in American history women and minorities were flatly barred from entering the legal profession, rendering character and fitness a needless proxy, if it was one. With regard to religion, there are instances (see Rhode below) of denying entry for, among other qualms, not having defined thoughts on religion, but there religion was being used as a character and fitness standard, in full public light. | >
> | As mentioned, I initially suspected that character and fitness standards could be used as a proxy for racial, religious, or gender values. This may have been short sighted, as until relatively late in American history women and minorities were flatly barred from entering the legal profession, rendering character and fitness a needless proxy, if it was one. With regard to religion, there are instances (see Rhode below) of denying entry for, among other qualms, not having defined thoughts on religion, but there religion was being used as a character and fitness standard, in full public light. | | | |
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