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The Troubling Rise of the Legal Profession's Good Moral Character

49 Pages Posted: 3 Oct 2007 Last revised: 12 Feb 2013

Keith Swisher

University of Arizona - James E. Rogers College of Law

Abstract

This Article exposes several rather startling characteristics of the good moral character requirement for bar applicants. The requirement arose in part from the bar's desire to exclude competition, particularly competition from certain nationalities and racial groups. It later was expanded to exclude the morally unorthodox (e.g., communists, cohabiters, or felons). Presently, and importantly, despite rhetoric about flexibility and forgiveness, the requirement is often applied rigidly and occasionally disingenuously to many applicants with criminal records. The Article finds a marked increase in the exclusion of applicants with criminal records, despite also finding that their criminal conduct occurred (on average) nearly a decade before their bar applications. The Article then illustrates that the bar's application of its flexible standard for admittance is often both perverse and unrealistic; it is not only unfair to applicants, but it is unprecedented in psychology and moral philosophy. The Article concludes that these exclusionary practices result primarily from the bar's concerns with its reputation and (misconceived) self-image. Finding that justification shallow, the Article offers some compromise positions for bar committees, courts, and law schools to employ in their screening processes.

Keywords: Character Review, Character Screening, Good Moral Character, Criminal Record, Criminal History, Licensing Requirements, Bar Admissions

Suggested Citation

Swisher, Keith, The Troubling Rise of the Legal Profession's Good Moral Character. St. John's Law Review, Vol. 82, p. 1037, 2008. Available at SSRN: https://ssrn.com/abstract=1018546

Keith Swisher (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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