The Poison of Propensity

How Character and Fitness Sacrifices the "Others" in the Name of "Protection"

Admission to a state bar requires law-school graduates to, along with passing an exam, be certified as “fit” to practice law. A candidate’s fitness is determined through a character-and-fitness investigation (“Character and Fitness”), intended to evaluate whether an applicant has the requisite character to practice and therefore protect the public from unfit or morally questionable attorneys. Mental illness is one of a number of factors—along with criminal convictions and credit history, to name a few—committees look at when evaluating whether an applicant is “fit” to practice law. Although Character and Fitness professes to look at current fitness, many states review applicants’ past conduct or health status—neither of which are adequate measures of fitness. This improper focus suggests that fitness determinations are based on a poison prohibited by the Federal Rules of Evidence: using character evidence as a basis for proving conformity therewith. Stated simply, she’s a bad person who has done bad things before, so she’ll do bad things again, therefore she is guilty of this bad thing. This evidence cannot be used to convict a person of a crime, even one as horrible as murder. Yet this is precisely the evidence state bars across the nation use to mark certain applicants as “other,” subjecting them to further investigation, conditions, and even denying them the opportunity to practice law. This Note argues that states’ Character and Fitness regime is ineffective and discriminatory. These flaws mandate a reform that allows bars to protect the public without sacrificing otherwise promising candidates.

The full text of this Note is available to download as a PDF.