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-- AndrewMcCormick - 13 Nov 2009 | | | 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. | >
> | Friedman argues that "As soon as... society posed problems for which lawyers had an answer..., layers began to thrive, despite the hostility.", . 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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< | 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, | >
> | George Sharswood, in An Essay on Professional Ethics, 1884, 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, and character and fitness standards were present if unused. | | | | |
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< | During 18th and 19th centuries, bar examinations were orally administered before a judge... | >
> | 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." (Comment on notes not played? Thelonious Monk? Look to the importance of "reported instances" | | | | |
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< | End of 19th and beginning of 20th century saw formalization and stiffening, but number of those denied entry for character reasons remained very small...
In 1878 the ABA formed in New York. At that time, there was no code of ethics and training remained informal. See, BarHistory | >
> | End of 19th and beginning of 20th century saw formalization and stiffening, but number of those denied entry for character reasons remained very small. In 1878 the ABA formed in New York. At that time, there was no code of ethics and training remained informal. See, BarHistory... | | |
The Uses of "Character and Fitness" as a Bar to Entry | |
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< | According TroublingRise "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." (Comment on notes not played? Thelonious Monk? Look to the importance of "reported instances" | | | | |
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< | Despite their small number, the cases present do offer a mooring point. | >
> | Despite their small number, the cases present cases offer points of interest.
Schware v. Board, 353 U.S. 232 involves a New Mexico man's denied entry to the bar on account of failing to show "good moral character." In question was, among minor crimes, his eight year membership in the communist party, from 1932-1940. 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.
In Re Application of Stewart - PDF? , 112 Ohio St. 3d 415, was a recent Ohio case to the point of my initial interest; there, the court affirmed the character and fitness board's decision that debt combined with sketchy disclosure was enough to deny admission to the bar. | | | | |
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< | TO FIND:
Schware v. Board, 353 U.S. 232 (communism) Available here, Schware v. Board | | | | |
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< | In re Application of Stewart, 112 Ohio St. 3d 415 (debt) Available as a pdf here, In Re Application of Stewart? | | | | |
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< | Ex Parte Wall 1077 U.S. 265 (1883) (mob lynching) available with notes here, Ex Parte Wall | >
> | Ex Parte Wall (with notes), 1077 U.S. 265 (1883) a Florida man involved in removing a man from a jail cell and lynching him in front of a courthouse challenged his bar rejection on character and fitness grounds and prevailed. | | | Smith, Admission to the Bar in New York, 16 Yale L.J. (1907) (514, 518 pincited by rhode for an example of lax standards)
Smith, Abraham Lincoln as a Bar Examiner, B. Examiner, Aug. 1982 (rhode points to 35, 37) (obscure but available?) | |
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< | Gawalt. The Promise of Power: The Emergence of the Legal Profession in Mass. 1760-1840. Available here, The Promise of Power... | >
> | Gawalt. The Promise of Power: The Emergence of the Legal Profession in Mass. 1760-1840 | | | Character Examination of Candidates, I B. Examiner (1932) | | | | |
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< | Moral Character as a Professional Credential
Deborah L. Rhode
The Yale Law Journal, Vol. 94, No. 3 (Jan., 1985), pp. 491-603
available here: MoralCharacterCredential
The Troubling Rise of the Legal Profession's Good Moral Character.
St. John's Law Review, 2008 by Keith Swisher
available here: TroublingRise "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." | >
> | | | | Confronting Racists at the Bar: Matthew Hale, Moral Character, and Regulating the Marketplace.
Jason O. Billy
available here: RacistsattheBar | |
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< | Alexis de Tocqueville, On Lawyers and Judges. Available here: Tocqueville, attaching a certain importance and conservatism to American lawyers. Interestingly, points out that "they entertain the same repugnance of the actions of the multitude [as the aristocracy]", suggesting that, despite Hamlin's comments that the legal profession in America was, compared to that of Britian, base and common, America's legal community harbored elitism. | >
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American Legal History. Hall, Wiecek, Finkelman. Oxford Univ. Press, 1006.
Legal Ethics, Fifth Ed. Rhode, Luban. Foundation Press, 2009. | |
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< | Legal Education in Colonial New York, Hamlin, New York University Law Quarterly Review 1939. discussing character of lawyers and men of government critically, and commenting on the unprofessional legal system in early America. For a 1941 law review article discussing and quoting extensively, see LegEdNewYork | >
> | A law review article on Hamlin's Legal Education in Colonial New York, New York University Law Quarterly Review 1939, discussed character of lawyers and men of government critically, and commenting on the unprofessional legal system in early America. On the other hand, AAlexis de Tocqueville, on Lawyers and Judges, attached a certain importance and conservatism to American lawyers. Interestingly, points out that "they entertain the same repugnance of the actions of the multitude [as the aristocracy]", suggesting that, despite Hamlin's comments that the legal profession in America was, compared to that of Britian, base and common, America's legal community harbored elitism. | | | 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) |
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