The Folly of Expecting Evil: Reconsidering the Bar's Character and Fitness Requirement
41 Pages Posted: 24 Dec 2014
Date Written: December 23, 2014
The bar’s character and fitness inquiry seeks to protect the public. As part of this inquiry, bar applicants are required to produce detailed information about their past histories. The rationale for this inquiry is that this information can be used to identify who will subsequently become a problematic lawyer. Bar applicants bear the burden of providing their “good” character even though there is little evidence that past conduct predicts who will become a problematic lawyer. This article looks at psychological and other research that attempt to identify factors that might predict future misconduct in the work place. It also reports on a study of Connecticut lawyers which was designed to determine whether information obtained during the bar admissions process predicts future discipline. The data reveal that while some bar application information is predictive of future misconduct, the effect sizes are extremely low. It is highly unlikely that anyone would be denied admission to the bar based on the slight increase in risk these applicants present. The article considers the implications of certain findings and suggests areas that merit further research. It also suggests some alternatives to the current character and fitness inquiry.
Keywords: lawyers, law students, bar admission, bar discipline
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