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-- AndrewMcCormick - 13 Nov 2009 | |
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< | 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 on Hamlin and Chroust, and visiting the NY Historical Society | >
> | This remains a work in progress - I consider this to be part one of the project and a general overview of my area of interest with a few theories regarding the significance of character and fitness. I plan to revise and add a section of more specific work this semester after spending more time on Hamlin and Chroust, and visiting the NY Historical Society | | | Contents
1. Character and Fitness: a ubiquitous, historically present standard. But a significant one? | |
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< | 2. Rise of Character as a Professional Credential for Lawyers: | >
> | 2. Rise of Character as a Professional Credential for Lawyers. | | | | |
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< | 3. The Uses of "Character and Fitness" as a Bar to Entry – Caselaw: | >
> | 3. The Uses of "Character and Fitness" as a Bar to Entry – Caselaw. | | | | |
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< | 4. The Role of Education in Character and Fitness: | >
> | 4. The Role of Education in Character and Fitness. | | | 5. Character, Fitness, Race, and Gender. A very short comment. | |
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< | 6. Partially Integrated/Otherwise Interesting sources: | >
> | 6. Partially Integrated/Otherwise Interesting sources. | | | | |
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< | 7. Sidebar of Related Projects: | >
> | 7. Sidebar of Related Projects. | | | | |
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< | 8. Attachments: | >
> | 8. Attachments. | | | | |
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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 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. | >
> | 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 historical investigation of character and fitness as professional concept will 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. | | | 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. | | | 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, and law was a respected profession. The British program did not fully transplant itself across the Atlantic, and neither did accompanying respect for law as a profession. For more information on the early legal education in America, which was apprenticeship, and the development of law departments in colleges and eventually law schools, see Hamlin, attached in full below. | |
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< | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, fascinatingly prohibited legal representatives from taking fees in section 26. Similarly, the 1669 Fundamental Constitutions of the Carolinas' article 70 proclaims practicing law 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 People 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 members 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." Chroust suggested a dislike for all things English and haphazard nature of the unformed law contributed to this antipathy (Chroust I, p5). However, a more persuasive argument is economic: lawyers were "the lawyer was most unpopular, not to say despised, in the "bedbtor areas," while in the "creditor areas" he was... at least welcomed" (Chroust II, 14). It is easy to imagine the reputation of lawyers tracks debtors rights. (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. I find it especially interesting the he argued that lawyers, now a common profession for those in government, would threaten the Republic if allowed to serve in office. He also wrote entertaining anti-lawyer poetry, if interested see Chroust I, FN53, Vermont Gazette Feb. 28 1786, et al.) | >
> | In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The Body of Liberties of Massachusetts Bay, 1641, interestingly prohibited legal representatives from taking fees in section 26. Similarly, the 1669 Fundamental Constitutions of the Carolinas' article 70 proclaims practicing law for money as "base and vile". Disdain for lawyers was not limited to legislatures, the public held them in disdain as well. J. McMaster, A History of the People 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 members 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." Chroust suggests that American's dislike for all things English and haphazard nature of the unformed law contributed to this antipathy (Chroust I, p5). However, a more persuasive argument is economic: lawyers were "the lawyer was most unpopular, not to say despised, in the "debtor areas," while in the "creditor areas" he was... at least welcomed" (Chroust II, 14). It is easy to imagine the reputation of lawyers tracks debtors rights, and before tenants' and debtors' rights developed lawyers would be unpopular.. (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. I find it especially interesting the he argued that lawyers would threaten the Republic if allowed to serve in public office. He also wrote entertaining, rambling anti-lawyer poetry. if interested see Chroust I, FN53, Vermont Gazette Feb. 28 1786, et al.) | | | | |
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< | In late 18th century New York, lawyers were not banned but were required to take an oath and provide evidence of their commitment to the United States, and those previously licensed to practice had to make a showing to a jury that they had "conducted himself as a good and zealous friend to the American cause", introducing patriotism as a professional credential (Chroust II, p7, quoting Laws of the State of New York Passed at the Sessions of the Legislature 155-157). This proved to be a substantial burden, and reduced the New York Supreme Court bar to nine members (although it is unclear how much larger a group these nine were selected from) (Chroust II, p10). | >
> | In late 18th century New York, lawyers were not banned but were required to take an oath and provide evidence of their commitment to the United States, and those previously licensed to practice had to make a showing to a jury that they had "conducted himself as a good and zealous friend to the American cause", introducing patriotism as a professional credential, or a facet of the character credential (Chroust II, p7, quoting Laws of the State of New York Passed at the Sessions of the Legislature 155-157). This proved to be a substantial burden, and reduced the New York Supreme Court bar to nine members (although it is unclear how much larger a group these nine were selected from) (Chroust II, p10). | | | 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. | | | "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). | |
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< | He also told a story out of California: | >
> | He recounted a case from California: | | | “In California two “law students,” who had clerked in the same building, had applied for admission to the bar. One day a member of the Supreme Court of California called upon one of the students and announced that he had come to ascertain his professional qualifications. The whole examination consisted in the question: “Is the Legal Tender Act constitutional?” The student replied: "It is" Whereupon the judge observed: “I have just examined your friend in the other office and he says that the Act is unconstitutional, but we need lawyers who are able to answer great constitutional questions so quickly, right or wrong. Your are both admitted" (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. | | | (3) The rise of the law firm in America | |
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< | (4) Distrust and Animosity toward lawyers in early America (and perhaps related topics in Quaker tradition) | >
> | (4) Distrust and animosity toward lawyers in early America (and perhaps related topics in Quaker tradition) | | | (5) Women in the American Legal Profession |
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