An important part of the bar admissions process in every state is what is known as the "character and fitness" evaluation. What this means is that an applicant for admission to the bar as an attorney must not only have graduated from an approved law school (or in a few states done the equivalent apprenticeship) and passed the bar examination but must also have demonstrated to the bar examiners that he or she is of the requisite moral character to be a lawyer. While this may sound like an oxymoron to some critics of the legal profession, bar examiners and lawyers in general take this requirement very seriously.
Most states require that an applicant for admission to the bar fill out a very detailed disclosure form. Most will not only examine this form but investigate any questionable activities, such as past crimes. Many actually conduct personal interviews. I can recall when I first applied for admission to the New York bar that I was required to meet with a group of senior lawyers and judges for almost an hour. They asked me questions about legal ethics and they asked me questions designed to let them evaluate my morality and my honesty. They also made it quite clear that the interview was not pro forma. It was possible to fail.
Because most lawyers and judges do take the maintenance of the ethical standards of the bar so seriously, on occasion, controversies erupt. At present there is a case in Illinois which has raised some very difficult issues regarding the bar admission requirement that lawyers be of good moral character.
The young man who has caused the problem recently graduated from one of the state law schools in Illinois. Apparently, his academic record is acceptable. There also seems to be no serious question of his having violated any of the specific rules of professional responsibility adopted in Illinois for the regulation of lawyers. The difficulty is that the young man in question is a white supremacist, and, indeed, is the leader of a group with which the perpetrator of the recent hate murders in Illinois and Indiana was affiliated.
The authorities in Illinois have raised the question as to whether this young white supremacist and law school graduate should be prohibited from admission to the bar on the grounds that his views on race are so morally repugnant that he cannot be considered of good moral character.
The bar examiners in Illinois face a dilemma. They are good men and women who wish to maintain and increase the positive ethical status of the practicing
bar. They do not want someone with such horrible views which can lead to such devastating tragedy to be able to call himself a lawyer. Yet, they also understand that normally the character and fitness evaluation looks to see whether a bar applicant is likely to violate the rules of professional responsibility or to commit a criminal act.
The underlying primary purpose of the character and fitness requirement in every state is the protection of the public. But it is equally true that a secondary purpose of the requirement is to maintain the highest ethical and moral standards of the bar.
In the Illinois case, protection of the public is not an issue except peripherally. The racist applicant shows no indication that he will defraud his clients or otherwise harm them. Indeed, it is altogether likely that he will have only other white supremacists as clients and that he will zealously defend their rights. The problem is simply that his views are repugnant to any right-thinking person. He is, simply put, a hate monger.
When I was in law school, I discovered that one of my teachers had been refused admission to the New York bar. The refusal was based on his having been convicted of a crime. The crime had been committed years before in Mississippi. The crime had been sitting at a lunch counter with an African-American in a state that barred such actions. My teacher was one of the most moral men I have ever known. His crime was an act of courage born of his strong moral sense. In that case, the bar examiners were the ones with weak morals.
I do not mean to suggest by this anecdote that I sympathize with the white supremacist. Far from it. But I believe that the need for free speech and the freedom to have whatever political beliefs one wishes, no matter how repugnant, is so important that we must not use a man's beliefs as a reason for preventing him from being a lawyer. I believe that the way to deal with cases like this is to permit the applicant admission to the bar, but, at the same time, encourage other lawyers to voice their disagreement and outrage with the repugnant beliefs.
A noted constitutional scholar once commented that the best way to deal with hate speech is not repression but more speech. Let us hope, for the sake of freedom, that the Illinois bar examiners embrace this approach.
-- Mike Hoeflich is dean of the Kansas University School of Law.