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WHAT’S REMORSE GOT TO DO, GOT TO DO WITH IT? BAR ADMISSION FOR THOSE WITH YOUTHFUL OFFENSES

MITCHELL M. SIMON∗

“If anything I have said this morning has been misconstrued to the opposite effect, I want to apologize for that misconstrued misconstruction.”

Rep. Joe Barton, attempting to apologize for apologizing to BP for the “shakedown” it got from the White House for the Gulf oil spill.

June 18, 2010.

I. INTRODUCTION…………………………………………………………………….. 2

II. OVERVIEW OF THE CHARACTER AND FITNESS PROCESS……………………………. 6

III. PURPOSES OF THE CHARACTER AND FITNESS PROCESS…………………………….10

IV. REMORSE……………………………………………………………………………14

A. Current Use of Remorse in the Character and Fitness Process……………….….14

B. A View of Remorse from the Fields of Social Philosophy and Ethics……….……18

C. The Relationship of Remorse to the Goals of Bar Admission………………..….22

V. REASONS TO ABANDON THE USE OF REMORSE IN ADMISSION CASES………….….24

A. Incentive on the Applicant to Lie……………………………………………………...24

B. Ethical Difficulties for Lawyers Interviewing and Counseling Applicants with Youthful Offenses……………………………………………………………..…...26

VI. CONCLUSION…………………………………………….…………………………..34

∗ Professor of Law, University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and Of Counsel, Devine, Millimet and Branch. I am grateful to my research assistants Nicole Negowetti and Brian Buonamano and to my faculty assistant Jeannie French for their hard work on this project. Thanks go also to my colleagues- Dana Remus, Kimberly Kirkland, Carol Langford, Susan Covert, Tom Trevethick and Cindy Landau, who provided helpful critiques of earlier drafts. Finally, I am grateful to the law school administration for their support.

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I. INTRODUCTION

A twenty-seven year old man, with several relatively minor criminal offenses in his past,

comes to a lawyer seeking guidance on his application for admission to the state bar. He tells the

lawyer that he was convicted of driving under the influence of alcohol during the summer before

his first year of college and public urination while on spring break in Florida during his junior

year. He also was accused of simple assault by a former girlfriend while in his first year of law

school. The assault charge stemmed from a heated argument at a party and was later dropped

when the girlfriend admitted that there had been no physical contact. The applicant also mentions

that he has accrued several thousand dollars of unpaid credit card debt during his educational

career. He is concerned about how the state bar’s character and fitness committee is likely to

handle his case.1

Law professors, lawyers who practice in the lawyer discipline area, and lawyers with

friends or clients who have children in law school frequently face such questions. Unfortunately,

even lawyers experienced in these matters may find it difficult to make reliable predictions as to

how a character and fitness committee will decide on cases where an applicant has committed

1 The author does not intend to minimize the importance of drunk driving or domestic assault by using this example. Rather, the terms “youthful offender” and “youthful mistakes” are used throughout the article to capture the type of judgment errors one frequently observes in younger or immature individuals. These are the types of crimes that are traditionally dealt with by diversion programs and other rehabilitative efforts and thus should be analyzed much differently than a crime warranting prison time. See, e.g., Application of T.J.S., 692 A.2d 498, 502 (N.H. 1997) (holding that an applicant who had been convicted of felonious sexual assault of two students while employed as junior high and high school teacher failed to prove by clear and convincing evidence that he possessed the “good moral character” necessary for practice of law). But see In re Application of Silva, 665 N.W.2d 592, 598 (Neb. 2003) (finding that “[a]lthough Silva's record includes several offenses committed as a juvenile, his most recent and most serious convictions in 1995 cannot be characterized as ‘the act of a naive and callow youth.’”)

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what might be might be described as a combination of “youthful mistakes.”2 Several factors

account for the difficulty in how boards will review these cases: 1.The imprecision of using past

conduct to draw reliable inferences about future conduct; 2. The failure of the admission rules to

provide meaningful substantive guidance to the character and fitness boards; and 3. The resulting

broad discretion of these typically volunteer boards whose decisions may be based, in part, on

the life experiences of each member.3 Additionally, lawyers seeking to counsel clients in these

cases are hampered by the lack of a common understanding of what course of conduct would

constitute appropriate rehabilitation for each combination of offenses presented.4

Although the proportion of applicants denied admission to the Bar because of character

issues is relatively small,5 the problems outlined above warrant closer examination. Character

decisions that rely upon relying on “unnamed and tangled impressions . . . which may lie beneath

consciousness”6 run serious risks of error and inconsistency. These determinations may be

devastating to an applicant’s goals, livelihood, and reputation.7 Even a temporary delay in bar

2 Compare In re Woodard, 803 So.2d 969 (La. 2001)(denying admission to an applicant who had failed to disclose several criminal convictions and held himself out to be a lawyer), with In re Dileo, 307 So.2d 362 (La. 1975)(admitting an applicant who failed to disclose a prior conviction of a misdemeanor and jail sentence for a probation violation). 3 See, e.g., Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 493 (1985). 4 Compare Fla. Bd. of Bar Exam’rs ex rel. John Doe, 770 So.2d 670, 675 (Fla. 2000) (ruling in a case involving failure to report facts on his bar application that despite a spotless career as a lawyer for over 7 years and a favorable work ethic, “merely showing that an individual is doing what he or she should have done throughout life… does not prove his useful and constructive place in society.”), with Fla. Bd. of Bar Exam’rs re L.M.S., 647 So.2d 838 (Fla. 1994) (admitting an applicant who cheated on an exam in her final year of law school and was found worthy of belief by the board because she was “dependable and hardworking,” supported herself through law school and had no similar incidents). 5 See Rhode, supra note 3, at 516 (stating that one in five-hundred applicants from forty-one states in 1982 were denied admission for character and fitness reasons); The Ohio Bar reports that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp. 6 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 248 (1957). 7 Maureen M. Carr, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8 GEO. J. LEGAL ETHICS 367, 370 (1995).

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admission may indicate to colleagues that a recent law graduate has character problems.8 In

addition, the community may be denied the service of an accomplished and dedicated individual

who, despite past mistakes, now may be more committed than others to promoting justice.9

In the twenty-five years since Professor Rhode’s seminal article identifying structural

problems in character assessments, no viable alternative has emerged to replace the present bar

admission system. Proponents of character and fitness standards have successfully argued that

protection of the public demands more of a licensing system than ensuring that a lawyer can pass

a two-day exam.10 Assessing an applicant’s fitness to practice, therefore, remains a necessary and

highly relevant task.11

In light of this reality and the need to improve the rigor of the character and fitness

analysis, this article analyzes one specific factor used in the character and fitness process—

namely, an applicant’s remorse in determining whether he or she has demonstrated adequate

8 Id. 9 Id. 10 National Conference of Bar Examiners Comprehensive Guide to Bar Admissions vii, III.7 (2009), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/Comp_Guide/CompGuide.pdf [hereinafter NCBEX Guide]. It is also interesting to note the history of the process. In the early part of the twentieth century, states began to strengthen character inquires through mandatory interviews, character questionnaires, committee oversight, or related measures. However, the history of these character screenings is tainted by improper motives. “Much of the initial impetus for more stringent character scrutiny arose in response to an influx of Eastern European immigrants, which threatened the profession’s public standing. Nativist and ethnic prejudices during the 1920s, coupled with economic pressures during the Depression, fueled a renewed drive for entry barriers.” Rhode, supra note 3, at 499-50; see also Keith Swisher, The Troubling Rise of the Legal Profession’s Good Moral Character, 82 ST. JOHN’S L. REV. 1037, 1041 (2008). Certainly, there could be no current support for use of the character and fitness process to exclude any group or improperly consolidate professional power. 11 “The lawyer licensing process is incomplete if only testing for minimal competence is undertaken. The public is inadequately protected by a system that fails to evaluate character and fitness as those elements relate to the practice of law.” NCBEX Guide, supra note 10, at vii, III.7; see also Carol M. Langford, Barbarians at the Bar: Regulation of the Legal Profession Through the Admissions Process, 36 HOFSTRA L. REV. 1193 (2008); Marcus Ratcliff, The Good Character Requirement: A Proposal For a Uniform National Standard, 36 TULSA L.J. 487, 487 (2000); but see Rhode, supra note 3 at 592.

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rehabilitation.12 This factor is most relevant for cases involving youthful offenders. Unlike

applicants who were convicted of serious felonies, prompt bar admission is a realistic prospect

and remorse is an often-discussed factor for applicants who committed youthful offenses.13

Using literature from the fields of social and legal philosophy and ethics on the nature of apology

and remorse, this article argues that inquiry into a bar applicant’s remorse in cases of youthful

offenses fails to serve the underlying purpose of the process, and is likely to encourage deceit by

applicants and produce ethical dilemmas for lawyers and law professors. Additionally, such

inquiry muddies an already complex task and adds little, if anything, to the character and fitness

committee’s ability to access the applicant’s candor during the process. Improving analytical

precision in the character and fitness process is critical, as otherwise qualified individuals may be

dissuaded from applying to law school or pursing law as a career out of fear that conduct in their

youth will jeopardize their admission to the bar.14

This article provides an overview of the general character and fitness process (Section II),

describes the purposes served by the process (Section III), and analyzes the current use of

12 See, e.g., Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying admission to an applicant with drug offenses whose rehabilitation was described as “remarkable” based on his refusal to admit his guilt at the character and fitness hearing); In re Admission of Saganski, 595 N.W.2d 631 (Wis. 1999)(denying admission because the applicant sought to blame others rather than accepting responsibility). 13 Compare In re Gossage, 5 P.3d 186, 198 (Cal. 2000) (denying admission to an applicant who had killed his sister in a struggle and ruling that given the serious nature of the crime “only if the evidence shows that he is no longer the same person” could he be admitted), and Application of T.J.S., 692 A.2d at 502 (stating that “it must be recognized that in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make”), with In re Kleppin, 768 A.2d 1010 (D.C. 2001) (admitting applicant who had been convicted of conspiracy to distribute marijuana based on factors such as his age at the time of the offense, his excellent law school performance, and his church activities). 14 See Rhode, supra note 3 at 493-94 (“Although the number of applicants formally denied admission has always been quite small, the number deterred, delayed or harassed has been more substantial.”) Professor Rhode suggested that the number of character and fitness denials is less than one percent. Id. at 516-17, n. 116. The Ohio Bar reports that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp.

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remorse by the courts and in social philosophy literature. The article concludes that these

purposes are not significantly furthered (Section IV) and that when remorse is a criteria for

judging character and fitness, its utility is far outweighed by the ethical issues it presents for both

applicants and their counsel (Section V).

II. OVERVIEW OF THE CHARACTER AND FITNESS PROCESS

Virtually all students entering law school are aware of the bar exam requirement.15 A less

well-known requirement is that every state bar currently requires character certification as a

prerequisite for bar admission.16 Each state conducts its own character investigations to

determine whether an applicant is morally fit to practice law.17 Although state legislatures may

enact certain laws affecting the practice of law, they generally have not attempted to intervene in

the legal profession’s regulation of bar membership criteria.18

In most jurisdictions, the state bar controls character screening, subject to judicial

oversight.19 Each state has discretion to determine its own standards for bar admissions subject

to relatively minimal Fourteenth Amendment constraints. The Supreme Court has required only

15 The standards for measuring intellectual fitness are generally uniform among the states, which typically require completing at least three quarters of a baccalaureate degree at an accredited college or university, graduating from an approved law school, and passing a bar examination. Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admissions, 39 CAL. W. L. REV. 1, 11 (2002); NCBEX Guide, supra note 10, at 3-5. For one innovative alternative to the exam requirement, see the Daniel Webster Scholar Program, which is a joint effort of the University of New Hampshire School of Law (formerly Franklin Pierce Law Center) and the New Hampshire Supreme Court. See http://www.piercelaw.edu/websterscholar; John Burwell Garvey and Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 DUKE F. L. & SOC. FOR LAW & SOCIAL CHANGE 101 (2009). 16 Rhode, supra note 3, at 493; NCBEX Guide, supra note 10, at 6-7. 17 Ratcliff, supra note 11, at 492. 18 Rhode, supra note 3, at 496. 19 Id. at 505.

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that the standards have a rational relationship to the “applicant’s fitness or capacity to practice

law” and are not related to political, religious or racial status. 20

Although all states have recognized the importance of evaluating bar applicants’

character, procedures to determine moral fitness to practice law vary in scope and substance

from state to state.21 Despite differences among the states, the most common method for

determining whether a bar applicant possesses the requisite good moral character to practice law

is for a bar or court appointed character committee to examine a variety of information regarding

the applicant.22

When applicants seek admission to the bar, the applicants have placed their character at

issue.23 Therefore, the applicant bears the burden of producing information proving good moral

20 Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957). See also Louisiana Supreme Court Committee on Bar Admissions, Rule XVII. Admission to the Bar of the State of Louisiana, Section 5(H)(1),(2) available at http://www.lascba.org/admission_rules.asp, “In determining an applicant’s character and fitness to practice law in this state, the Panel shall not consider factors which do not directly bear a reasonable relationship to the practice of law, including, but not limited to, the following impermissible factors: (1) The age, sex, race, color, national origin, religion, or sexual orientation of the applicant; or (2) A physical disability of the applicant that does not prevent the applicant from performing the essential functions of an attorney. 21 Rhode, supra note 3, at 506; Ritter, supra note 15, at 14. For example, character investigations may be undertaken by a state bar association while the applicant is in law school, prior to sitting for the bar examination, or subsequent to successful completion of the bar examination. In most states, the bar association processes the application; however, in eleven states a separate agency evaluates character and fitness. NCBEX Guide, supra note 10, at 6-7. 22 See Rhode, supra note 3, at 505. 23 Ratcliff , supra note 11, at 492.

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character.24 Information concerning the applicant primarily comes from standardized bar

applications, questionnaires, interviews, and letters of recommendation.25

Typically, bar examiners will inquire into an applicant’s past with questions concerning

educational and employment history, finances, criminal and civil misconduct, mental health

problems and addictions.26 Essentially, bar character committees determine an applicant’s good

moral character by “assessing all of the relevant facts before them.”27

If preliminary character investigations reveal that the application is problematic in any

way, “heightened scrutiny” by the bar admission committee is typically triggered.28 The National

Conference of Bar Examiners has set forth a list of conduct that warrants further investigation.29

The list includes:

[U]nlawful conduct, academic misconduct, making of false statements, including omissions, misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial responsibilities, neglect of professional obligations, violation of an order of a court, evidence of mental or emotional instability, evidence of drug or alcohol dependency, denial of admission to the bar in another jurisdiction on character and fitness ground, disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.30

24 NBEX Guide, supra note 10, at viii. See, e.g. Rule 5B(2), Minnesota Rules for Admission to the Bar (“The applicant bears the burden of proving good character in support of the application.”); Regulations of the Connecticut Bar Examining Committee Edition of 2008, Art. VI-3. Burden of Proof, available at http://www.jud.state.ct.us/CBEC/regs.htm#VI (“The applicant bears the burden of proving his or her good moral character and fitness to practice law by clear and convincing evidence.”). 25 See Richard R. Arnold, Presumptive Disqualification and Prior Unlawful Conduct: The Danger of Unpredictable Character Standards for Bar Applicants, 1997 UTAH L. REV. 63, 65. 26 See, e.g., Petition and Questionnaire for Admission to the Bar of New Hampshire, available at http://www.courts.state.nh.us/nhbar/petition.pdf. 27 Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement for Bar Admission, 60 NOTRE DAME L. REV. 67, 69 (1984). 28 Ritter, supra note 15, at 15. 29 NCBEX Guide, supra note 10, at viii, III, 13. 30 Id.

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Many states have adopted these national guidelines and have incorporated the list of conduct into

their published character and fitness guidelines.31

If the bar committee makes a preliminary determination that the applicant does not meet

the state’s standard of good character, the bar notifies the applicant and gives him or her the

opportunity, usually by formal hearing, to produce evidence that proves the applicant is of good

moral character. 32 At this hearing, the applicant has the right to respond to the matters asserted

or charged in the notice, including the right to present evidence and to question witnesses.33

A critical factor in cases involving youthful offenses seems to be the behavior of the

applicant during the admission process. For most youthful offenders, their crimes get them

personalized scrutiny; but for applicants who committed minor, nonviolent offenses, bar

admission is often theirs to lose based on choices they make during the character and fitness

process. Factors such as lack of candor, failure to express remorse and failure to demonstrate

rehabilitation during the application process appear to play important roles in bar admission

denials.34

Once an applicant’s conduct raises an issue of fitness to practice law, especially if prior

misconduct involved unlawful acts, he or she may be obliged to demonstrate rehabilitation.35 The

National Conference of Bar Examiners has recommended certain factors, which “should be

31 For example, Alaska, Arizona, Illinois, Indiana, Louisiana, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, are among the many states which have included this list of conduct in their published character and fitness guidelines. 32 See, e.g., see Rules for Admission of Attorneys, Oregon Supreme Court, Rule 9.35 available at http://www.osbar.org/_docs/rulesregs/admissions.pdf. 33 Id. at Rule 9.35(6). 34 See, e.g., Application of Allan S., 387 A.2d 271, 276 (Md. 1978). 35 Application of G.L.S., 439 A.2d 1107, 1117-18 (Md. 1982).

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considered in assigning weight and significance to prior conduct.”36 Among these factors are:

“the applicant’s age at the time of the conduct, the recency of the conduct, the reliability of the

information concerning the conduct, the seriousness of the conduct, the cumulative effect of

conduct or information, the evidence of rehabilitation, the applicant’s positive social

contributions since the conduct, the applicant’s candor in the admissions process and the

materiality of any omissions or misrepresentations.”37 Courts have often also focused on

whether the applicant expresses and demonstrated remorse.38 In order to be admitted to the bar

in such cases, the evidence of rehabilitation must show that the cause of applicant’s misconduct

has been eliminated, that such misconduct will therefore not recur, and that the applicant is

therefore currently fit to practice law.39

Once the committee has made a determination as to the fitness of the applicant, it may

either recommend the applicant to the state supreme court for admission to the bar, or decline to

do so because of the applicant’s failure to prove good moral character.40 Upon an adverse moral

36 NCBEX Guide, supra note 10, at viii, III.15. 37 Id. 38 See e.g., Application of G.L.S., 439 A.2d at 1117 (“The applicant readily admitted that he himself was solely responsible for his participation in and commission of the crime. While he was unarmed and served only as the driver of the get-away car, he recognized no difference in the degree of culpability between himself and the other two persons involved in the crime. Thus the applicant admitted that his criminal acts were morally wrong and indefensible.”); Matter of Peterson, 439 N.W.2d 165, 169 (Iowa 1989) (“Without looking beyond Peterson's 1988 testimony, it becomes apparent that his initial descriptions of the 1976 incident as a technical and minor assault were attempts to mischaracterize the incident. This testimony displays a callous and indifferent attitude toward an explosive personal confrontation.”); Partin, 894 S.W.2d at 909 (“In particular, the Board majority is compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse or acceptance of the criminality of his actions.”). 39 Ritter, supra note 10, at 15. 40 Ratcliff, supra note 15, at 492.

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character determination, the applicant possesses a procedural due process right of appeal to the

state supreme court.41

III. PURPOSES OF THE CHARACTER AND FITNESS PROCESS

The primary justification for the bar’s moral character requirement is to protect the

public.42 “A lawyer should be one whose record of conduct justifies the trust of clients, ad-

versaries, courts and others with respect to the professional duties owed to them.”43 The bar

assumes that a history of prior unlawful conduct or “[a] record manifesting a significant de-

ficiency in the honesty, trustworthiness, diligence or reliability” 44 is a significant factor in

predicting future dishonesty or misconduct as a practicing lawyer.45 In creating character and

fitness standards, bar associations and courts seek to prevent unscrupulous individuals from

joining the legal profession, thereby avoiding future harm to the public and protecting the high

standards of the legal profession.46

While few would dispute the legitimacy of this goal, there remains a significant dispute

as to whether it is empirically supported.47 For example, Professor Deborah Rhode has

41 Ritter, supra note, 10 at 15-16. See also Rules for Admission of Attorneys, Oregon Supreme Court, Rule 9.6. 42 NCBEX Guide, supra note 10, at viii, III.7, “The primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice.” See also Langford, supra at note 11. 43 NCBEX Guide, supra note 10, at viii, III.12. 44 Id. 45 Arnold, supra note 25, at 67- 68. 46 Langford, supra note 11, at 1209; Arnold, supra note 25, at 68; Deborah Rhode has suggested that “as a practical matter, it is thought ‘easier to refuse admittance to an immoral applicant than it is to disbar him after he is admitted.’ The vast majority of attorney misconduct remains undetected, unreported, or unprosecuted and bar disciplinary authorities have proved highly reluctant to withdraw individuals’ means of livelihood. Given the difficulties of ex post policing, entry restrictions appear to be a logical means of maximizing public protection.” Rhode, supra note 3, at 509. 47 See, e.g. McChrystal, supra note 27, at 100 (1984) (“[T]he requirement that applicants prove their good moral character to be admitted to the bar is, standing alone, extremely imprecise.”); Ratcliff, supra note 15, at 495

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questioned the premise that character screening can predict future behavior in light of “the

subjectivity of standards, the inadequacy of information and predictive techniques.” 48 Another

commentator has observed that evaluating character, like science, deals with certain variables,

which are placed into a formula to obtain a result. 49 However, because the concept of character,

unlike scientific variables, has no universally accepted definition, major problems arise.50

“Ambiguous notions of good character coupled with vague tests for judging an applicant’s

character, have resulted in inconsistent results in bar admission cases.”51

The timing of these reviews also lessens their reliability. The median age of law school

graduates is approximately twenty-seven.52 By this age most applicants have not occupied the

positions of trust that create the potential for the most common type of attorney misconduct,

white-collar offenses. Professor Rhode noted that:

Other chronic problems, such as alcoholism, from which later difficulties in practice might stem, are simply not predictable from the applicant’s records. As examiners frequently noted, candidates are generally too young to have made a record for themselves. Several respondents felt they were reviewing “virgin babes in the woods,” whose life histories gave little indication of how they would perform as attorneys.53

(“Ambiguous notions of good character coupled with vague tests for judging an applicant’s character, have resulted in inconsistent results in bar admission cases.”). 48 Rhode, supra note 3, at 493. See also Langford, supra note 11, at 1213-14 (discussing the debate regarding whether there is any correlation between applicants with problem histories who are admitted and later disciplinary action). 49 Ratcliff, supra note 15, at 488. 50 Id. 51 Id. 52 Rhode, supra note 3, at 515. 53 Id. (footnotes omitted). One veteran character and fitness administrator has noted that he sees more serious problems among candidates for admission by motion than in those taking the bar exam. He surmises that this may be because they have had greater chances to get themselves into trouble during the five years of mandatory practice required for admission by motion. Interview, Deputy General Counsel New Hampshire Attorney Discipline Office (July 30, 2010).

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The Supreme Court in Konigsberg v. State Bar of California has recognized the danger of

implementing a subjective standard when predicting future fitness to practice law:54

The term “good moral character” has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.55

In light of the lack of empirical evidence on the predictive quality of past conduct, individuals

interested in analyzing and improving the process must ask whether each existing requirement

for admission, including the need to express remorse, is demonstrably relevant to public

protection.

There is also a second stated goal of the character and fitness requirement, which is to

protect the profession’s image.56 By determining which applicants are morally fit to practice

law, the Bar establishes the boundaries of a moral professional community.57 Admitting one with

past bad conduct or a history of dishonesty can diminish the reputation of the legal profession,

and cause the public to lose confidence in the ability of lawyers to protect and preserve our legal

54 Schware, 353 U.S. 252, 262-63 (1957). 55 Id. (footnote omitted). 56 Langford, supra note, 11 at 1210; Rhode, supra note 3, at 509; Petition of Birmingham, 866 P.2d 1150, 1155 (Nev. 1994) (Steffen, J. dissenting) (“Although I regret the prospect of being viewed as unforgiving or uncaring, I am nevertheless compelled to withhold my approval from Mr. Birmingham's request for admission to practice law in the State of Nevada. I consider the denial of his admission, however difficult, better than the prospect of discretely promoting a deepening and foreboding public disrespect for the legal profession.”). 57 Rhode, supra note 3, at 509.

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institutions.58 One author suggests that a lower public perception of lawyers can diminish

respect for and compliance with the law itself.59

Public expressions of remorse by those who have engaged in troublesome past conduct

could be deemed to advance this second goal. It has been argued that “requiring all applicants to

account and, in some instances, to atone publicly for past misconduct is thought to serve

important socialization and prophylactic purposes.”60 This second goal, which certainly should

not be gainsaid, opens the door to broad and unexamined assumptions about past conduct, even

though such conduct is not a predictor of future conduct.

The question, therefore, is whether the remorse requirement as currently implemented

serves in a meaningful way either of these goals, and, even if so, whether other relevant factors

outweigh its value in meeting the goals.

IV. REMORSE

A. Current Use of Remorse in the Character and Fitness Process

58 Carr, supra note 7, at 379 (1995). The preamble to the Model Rules states that “a lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs . . . . A lawyer should demonstrate respect for the legal system . . . [and] it is a lawyer's duty to uphold legal progress.” The lawyer is a “public citizen” who should “seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession . . . . A lawyer should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.” See Langford, supra note 11, at 1210 (citing Harris Interactive, Inc., Doctors and Teachers Most Trusted Among 22 Occupations and Professions: Fewer Adults Trust the President to Tell the Truth: Actors and Lawyers at Bottom, with Pollsters also Fairing Poorly (Aug. 8, 2006), http://www.harrisinteractive.com/harris_poll/index.asp?PID=688). Only 27% of respondents surveyed said they would trust lawyers to tell the truth, while 68% said they would not trust lawyers to tell the truth. Id. 59 Carr, supra note 7, at 379. 60 See Rhode, supra note 3 at 509-10, citing Carothers, Character and Fitness: A Need for Increased Perception, B. Examiner, Aug. 1982, at 25, 31 (noting that a board will frequently interview applicants whose admission it nonetheless recommends, in order to confront them “with the unmistakable fact that their conduct is unacceptable”).

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Courts have consistently looked to remorse as an admission factor, especially in cases of

past criminal conduct.61 A study of character and fitness decisions done in 1985 showed that in

over one-half of the reported cases, the applicant’s effort to atone or expressions of remorse for

prior conduct was explicitly discussed.62 A review of reported cases between 1980 and 2009

involving bar applicants who were youthful offenders shows that this pattern has continued.

During this period, 59 out of 128 reported cases analyzed remorse as a decisional factor.63

Interestingly, an applicant’s willingness to express remorse is not often the key to a decision to

admit the applicant,64 but the unwillingness to express remorse has been seen by character and

fitness committees and reviewing courts as disqualifying.65 Perhaps more significantly, an

61 Rhode, supra note 3 at 544; In re Nathan, 26 So.3d 146, 147 (La. 2010) (“Petitioner knowingly forged the notary's signature on her bar application. This fact was not disputed by petitioner; rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because of the stress she was under at the time.”); Application of K.B., 434 A.2d 541, 545 (Md. 1981) (“It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case.”). 62 Id. 63 See Table 1, infra. A number of the cases not explicitly discussing remorse turned either on alcohol and drug dependency, where remorse does not seem to be relevant, or lack of candor. See e.g., In re Application of Corrigan, 915 N.E.2d 300, 303 (Ohio 2009) (focusing on the applicant’s alcohol problems and his lack of candor with the Committee). Several of the lack of candor cases involve findings that the applicant was untruthful based on refusal to admit culpability, a concept that is related to remorse; Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) (finding lack of candor when applicant was unable to testify consistently about a plagiarism allegation). 64 See e.g., In re Application of Grachanin, 912 N.E.2d 1128, 1130-31 (Ohio 2009) (finding that while applicant deserves credit for expressing remorse, he needs more time to demonstrate that his drinking problems are under control); Martin B. v. Comm. of Bar Examiners, 661 P.2d 160, 161(Cal. 1983) (“The State Bar Court also found the 1973 false claim conviction to be indicative of bad moral character, despite petitioner's free admission of guilt and expression of remorse.”). But see In re Application of Simmons, 584 N.E.2d 1159, 1160 (Ohio 1992) (“We have reviewed the record in this case and are particularly struck, as the board was, with this applicant's forthright confession of and testimony about his misconduct. However, unlike the board, we are satisfied with Simmons' regret and renewed commitment to the standards manifested by the Code of Professional Responsibility and, therefore, find nothing to be gained by allowing another year to pass before Simmons may apply for the bar examination.”). 65 See e.g, Application of Walker, 539 P.2d 891, 897 (Ariz. 1978) (denying admission for failing to make disclosure of failure to register for the draft and for claiming that these acts did not reflect on his character); Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying applicant for his continued insistence on his innocence of charges for which he had been convicted); In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) (Lunberg Stratton, J. dissenting (“Had he admitted to his deceptive acts, I would agree with the majority. But . . . his refusal to accept the responsibility for these misdeeds demonstrates a deeper character flaw that cannot be cured by time. [¶] A lawyer must be honest, ethical, and above reproach. Panepinto clearly has none of these qualities. Therefore, I would permanently deny his application to take the bar exam.”).

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applicant’s refusal to express remorse, even in cases of sincerely held beliefs, often leads to a

finding of lack of candor, one of the most damning factors in bar admission cases.66

For example, in Partin v. Bar of Arkansas, the applicant had been convicted of drug

possession on three separate occasions and served time in jail.67 His last offense was

approximately seven years prior to this application, and his first offense occurred over twenty

years ago. Partin declined to admit his guilt to the charges or to express remorse. The Character

and Fitness Board found compelling that “the applicant engaged in criminal activity and has yet

to exhibit remorse or acceptance of the criminality of his actions.”68

Partin attempted to focus the hearing on his rehabilitation, which the Arkansas Supreme

Court described as “remarkable,” rather than on what he asserted was mere past conduct.69

Though not in the court’s decision, one can not help but surmise that the applicant may well have

been one who disagrees with the nation’s drug laws, at least as they relate to marijuana.70 Had

Partin chosen to express remorse and admit his past criminality, he would very likely have been

admitted, based on the findings of other rehabilitation, his clean record for almost ten year and

the nature of his offenses.71 The Arkansas Supreme Court placed great emphasis on the Board’s

findings of lack of remorse and the resulting lack of candor to deny admission to Partin.72

66 See Partin, 894 S.W.2d at 908-10; In re Childress, 561 N.E.2d 614 (Ill. 1990); Hallinan v. Comm. of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966); Siegel v. Comm. of Bar Examiners, 514 P.2d 967 (Cal. 1973). 67 Partin, 894 S.W.2d at 908-10. 68 Id. at 909. 69 Id. at 911. 70 “If an offender disagrees with the statute under which the court convicts her, for instance if the state finds an advocate of marijuana legalization guilty of possession, should a judge increase her punishment unless she apologizes? Once again, these questions seem especially important in the absence of a robust set of moral values shared by a community.” NICK SMITH, I WAS WRONG: THE MEANINGS OF APOLOGY 256 (2008). 71 See, e.g., In re Dileo, 307 So.2d 362 (La. 1975) (admitting an applicant with drug offenses four years prior who had made “great advancements towards rehabilitation” and was candid with the Board). 72 Id. at 910-11.

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Mr. Partin unsuccessfully sought to rely on Martin B. v. Committee of Bar Examiners.73

In that case, Martin B., while serving as a U.S. Marine, was acquitted of rape on a defense of

consensual intercourse. In a later trial involving a separate accusation of rape by a different

complaining witness, a jury deadlocked 11 to 1 in his favor, and the court dismissed the charge.

Still later, he was convicted of filing a false claim against the government. The California State

Bar Court refused to certify him for admission to the Bar and conducted a “retrial” of the rape

charges, calling live witnesses, and ultimately concluded that Martin B. had lied to that Court in

maintaining his innocence.74

The California Supreme Court reversed based on due process concerns and recognized that,

had Martin B. made a “pragmatic” admission to the Bar Court of his guilt in the rape incidents, it

probably would have recommended his admission to the Bar on the basis of his rehabilitation.

The Court wrote:

Special problems arise when a finding of falsehood is based upon a denial of guilt. Had petitioner expressed guilt and remorse, the Committee would not have found that he had “lied” at the hearings; the passage of nine years’ time with an unblemished record probably would have sufficed to show rehabilitation and bring about his admission. Petitioner, however, was acquitted of three of the charges long ago, and had the remaining charges dismissed; he should not be forced to now claim guilt, particularly since he has remained adamant about his innocence for the past ten years. Otherwise, it would leave the door open to a dangerous practice by the Committee to force applicants previously acquitted of criminal charges, or even merely arrested with charges later dropped, to “admit” guilt.75

Despite this language casting doubt on whether refusals to express remorse are useful in

determining an applicant’s fitness to practice, the California Supreme Court has acknowledged

73 661 P.2d 160 (Cal. 1983). 74 Id. at 161. 75 Id. at 164-65.

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that true remorse may have a probative value. In Hightower v. State Bar, the court noted that

“rehabilitation ... is a ‘state of mind’ and the law looks with favor upon rewarding with the

opportunity to serve, one who has achieved ‘reformation and regeneration.’”76 Hightower was

seeking admission after having been previously denied for prior unauthorized practice of law

while a law student. During his second hearing, he continued to insist that he had been

authorized to take certain of the disputed actions by his supervising attorneys. A Bar investigator,

focusing on remorse and candor, reported to the panel that petitioner “is still fighting the

findings, and rationalizing his conduct. It would seem that [petitioner] still does not adequately

understand nor comprehend the nature of his actions.”77

However, the Court, while recognizing the potential importance of true remorse, again

declined to require the petitioner to adopt the hearing panel's version of the facts, in effect

confessing that he lied, in order to be fit to practice law. It wrote:

In analogous situations, we have recognized that similar conduct by an applicant does not disqualify him. [R]efusal to retract his claims of innocence and make a showing of repentance appears to reinforce rather than undercut his showing of good character.... An individual's courageous adherence to his beliefs, in the face of a judicial or quasi-judicial decision attacking their soundness, may prove his fitness to practice law rather than the contrary. We therefore question the wisdom of denying an applicant admission to the bar if that denial rests on the applicant's choosing to assert his innocence regarding prior charges rather than to acquiesce in a pragmatic confession of guilt, and conclude that [he] should not be denied the opportunity to practice law because he is unwilling to perform an artificial act of contrition.78

These cases demonstrate some confusion in how character and fitness committees and courts

treat remorse for purposes of bar admission. Given the overall lack of clear guidance to

76 666 P.2d 10, 14 (Cal. 1983) (citations omitted)(internal quotation marks omitted). 77 Id. at 12. 78 Id. at 13 (citations omitted).

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committees in making these decisions, it is critical that they carefully examine the relevance of

the factors they purport to use. Thus, committees and applicants need to better understand the

justification for the underlying requirements of remorse and apology.

B. A View of Remorse from the Fields of Social Philosophy and Ethics

Scholars in the fields of social and legal philosophy and ethics have considered the

meaning and implications of remorse in a much more rigorous fashion than have the courts and

bar admission systems.79 Their work provides a better analytical framework on which to

evaluate the use of remorse in this context.80

Remorse is an oft-stated factor in admission cases; yet it is rarely, if ever, defined.81 A

leading professor of law and philosophy has described the related concepts of remorse,

repentance and atonement in the following manner:

Remorse (as bad conscience) is… often best understood as the painful combination of guilt and shame that arise in a person when that person accepts that he has been responsible for seriously wronging another human being—guilt over the wrong itself, and shame over being forced to see himself as a flawed and defective human being who, through his wrongdoing, has fallen from his own ego ideal. Shame should provoke

79 Compare Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO ST. J. CRIM. L. 423 (2007) and Nick Smith, The Categorical Apology, 4 J. SOC. PHIL. 473 (2005) with Partin, 894 S.W.2d at 908-10. One commentator wrote: “Unfortunately remorse has proven to be an increasingly ambiguous concept, which state court judges have had a great deal of difficulty applying in any coherent or consistent manner.” Bryan H. Ward, Sentencing Without Remorse, LOY. U. CHI. L.J. 131, 132 (2006). 80 The author does not mean to in any way minimize the impact of religious scholars on this area of thought. However, mainly for reasons of space and expertise, this article will not address that scholarship. Also, Professor Murphy has argued that such scholarship may be less relevant to legal decisions, such as criminal law. “Our secular concepts of repentance and remorse no doubt have at least in part of their origin in religion, but the secular meaning of those concepts can differ substantially from at least some religious meanings.” Murphy, supra note 79, at 431 n.18. See Smith, supra note 70, at 114-25 for an excellent overview of the role of apologies in diverse religious and cultural traditions. 81 See, e.g., Application of Greenberg, 641 P.2d 832 (Ariz. 1980); In re Crossly, 839 S.W. 2d 1 (Ark. 1992). See also Table 1 infra.

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repentance—the resolve to become a new and better person—and guilt should (where this is possible) provoke atonement—embracing whatever personal sacrifice may be required to restore the moral balance that one’s wrongdoing has upset and to vindicate the worth of one’s victim, a worth that one’s wrongdoing has symbolically denied. This may be the sacrifice of liberty or even life… or it may be a sacrifice of resources….82

To be useful in legal contexts such as criminal law and admission cases, presumably atonement

would need also to have a communicative aspect- i.e., an apology.83

Using this framework to examine what might be called “true remorse,” the reasons why

such actions are of value and worthy of our respect become easier to discern. First, it is

commonly thought that a “person who is sincerely remorseful and repentant over his wrongdoing

exhibits a better and more admirable character than a wrongdoer who is not repentant.”84 Perhaps

more importantly for bar admission purposes is the notion that individuals who are truly

remorseful and repentant, as defined above, are “less dangerous, less likely to do wrong again,

than those who are unremorseful and unrepentant.”85 In light of the primary purpose of bar

admission--protecting the public, this latter belief, which would strongly support the use of

remorse, needs further analysis.

82 Murphy, supra note 79, at 438. In State v. Burgess, 943 A.2d 727,738 (2008), a case finding that a sentencing court may not draw a negative inference of lack of remorse from a defendant's silence at sentencing, the Court looked to two dictionary definitions of remorse. It wrote that: “Remorse’ is defined as ‘a gnawing distress arising from a sense of guilt for past wrongs,’ WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1921 (unabr. ed. 2002), or ‘deep and painful regret for wrongdoing,’ RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1214 (1966). Thus, for a defendant to truthfully express remorse, he must to some degree acknowledge wrongdoing or guilt.” 83 Smith, supra note 70, at pp. 253-562 (“Apologies can anchor our moral lives, promising that our actions never drift too far from our values…. [A]pologizing can mark an occasion when we pause and self-consciously honor our abstract moral beliefs—we have wronged or have been wronged and we must denounce the trespass or risk losing the value jeopardized by it. Because of their importance to our moral growth, apologies have become integral to twelve-step programs such as Alcoholics Anonymous that attempt to reorient the moral lives of their members.” 84 Murphy, supra note 79, at 438. 85 Id. at 439.

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Important empirical questions are presented by the assertion that those who express

remorse are less likely to wrong again. The author of the above article neither cites studies nor

other data for this assertion.86 Also, he expresses his own doubts in the same paragraph about the

validity of the claim. He writes:

I hope this is true, but I am not sure. The wrongdoer can be self-deceptive or just honestly mistaken about the sincerity of his own repentance, and even the sincerely repentant wrongdoer can suffer from weak will. It is not for nothing that the term “backsliding” plays a role in both our moral and religious vocabularies, and the concept of weakness of will… has produced a vast body of philosophical and religious writing.87

Similarly, Professor Rhode passionately argued that the use of remorse in admission cases is

flawed because it is founded on a faulty empirical premise: That “certain attitudes are

sufficiently predictive of subsequent misconduct to justify the costs of the certification

process.”88

Another important insight from the world of social philosophy is that even if the use of

remorse in admission cases is valuable in cases of serious wrongs, it is much less valuable in

86 Id. 87 Id. See also Application of T.J.S., 692 A.2d 498, 501 (N.H. 1997)(finding the applicant to be “too articulate, glib and adept at explaining away his past behavior”). 88 Rhode, supra note 3, at 545-55. Professor Rhode also criticized the general character system and wrote that “the current administration of the moral character criteria is, in effect, a form of Kadi justice with a procedural overlay… The process is a costly as well as empirically dubious means of securing public protection. Id. at 584. See also Carr, supra note 7, at 373 (1995) (“In addition to problems in determining degrees of moral turpitude and wrongdoing, past offenses simply may not be a reliable gauge of present character.”). Further support for this conclusion can be found in a study of Virginia’s revision of its parole system. The study found two factors that had some relationship to recidivism: prior felony drug convictions or prior adult incarcerations. However, it also found that a number of factors commonly used in the admission process- such as age at time of offense, were irrelevant. Interestingly, it found the only demographic factor that was potentially significant to differentiate recidivism among subgroups was gender, a factor that most would agree should not be used in bar admission decisions. See Brian J. Ostrom, et al. OFFENDER RISK ASSESSMENT IN VIRGINIA 1 (2002).

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minor and often victimless crimes, the subject of this article.89 Yet, it is precisely here that failure

to express remorse has real consequences.90

There is certainly no way that one convicted of manslaughter or rape will be admitted

without a demonstration of full rehabilitation, one that will necessarily include an in-depth

inquiry into whether the applicant is truly remorseful.91 Presumably, in such cases, the absence

of remorse would also play a role in society’s commonly held belief that “ the very worst of

evildoers are those who are utterly without remorse for the evil that they have done.”92 In fact, in

the criminal sphere, lack of remorse is often used in major crimes as an aggravating factor.93

It is difficult to apply this mode of analysis to those just starting out in the profession

with, for example, marijuana and alcohol arrests. While they should realize what they did was

illegal, it may be fruitless in today’s college culture of binge drinking and casual drug use to

expect them to “capture those extremely powerful guilt feelings that are appropriately attached

only to grave wrongs and harms.”94

89 Murphy, supra note 79, at 433. 90 See, e.g., Fla. Bd. of Bar Examiners ex rel. M.L.B., 766 So.2d 994 (Fla. 2000) (“Words of promise ring hollow where there is no recognition of the wrongfulness of the conduct established by the legal record.”). 91 See, e.g., In re Manville, 538 A.2d 1128 (D.C. 1988); In re King, 136 P.3d 878 (Ariz. 2006). 92 Murphy, supra note 79, at 424. But see Cynthia Ozick’s argument that expression of remorse by a dying young Nazi soldier who had participated in the murder of many Jews should be seen as an aggravating factor in our judgment of him. She asserts that the remorseful murderer shows that he was not a thoughtless thug or sociopath, but rather that he had a moral conscience at the time of his act and thus knew he was doing evil. SIMON WIESENTHAL, THE SUNFLOWER 209-10 (rev. & expanded ed.,1997) 93 Id. In addition to the use of lack of remorse in the criminal sphere, refusal of a respondent to acknowledge the wrongful nature of the misconduct is an aggravating factor in determining the appropriate sanction in attorney discipline. See ABA STANDARDS FOR IMPOSING LAWYER DISCIPLINE 9:22. Also, remorse for one’s misconduct is considered a mitigating factor. Id. at 9.32(l). 94 Murphy, supra note 79, at 430. States differ on how they treat these offenses as well. The Executive Director of one state bar indicated that his examiners functions under a double standard for drug and alcohol offenses. They “say nothing about a guy who gets in brawls and fist fights in bars because they figure he’s just a good ol’ boy… but

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The literature also suggests that the role of remorse may be very different not only based

on age, but based on the massive social class, racial and cultural differences we have in the legal

system.95 Sociologists Ronald Everett and Barbara Nienstedt have written that “[c]ultural values

inculcated in certain racial/ethnic minorities may prohibit such required displays of remorse, just

as the judge’s cultural values may preclude him or her from perceiving a valid expression of

remorse from a member of a different racial/ethnic group.”96

C. The Relationship of Remorse to the Goals of Bar Admission

With this background, the real question is whether the current use of remorse in bar

admission cases furthers the system’s goals of public protection and upholding the profession’s

image. If evaluating remorse furthers either of these goals, but not in a fundamental way, one

must also ask if it has other costs that outweigh any utility.

As argued above, there is scant, if any, empirical evidence that a youthful offender who

does not express remorse presents a greater danger of violating the profession’s norms in the

future than an applicant who does.97 Nor is there any epistemological support for the vague

notion that one who expresses remorse has a more admirable character than one who declines to

do so.98 In fact, our legal history is replete with tales of headstrong young individuals, committed

the Board gets upset about drugs, even in small amounts.” Rhode, supra note 3, at 538. Interview, Exec. Dir., Nev. St. B. Ass’n (August 16, 1982). 95 Id. at 451 96 Ronald S. Everett & Barbara C. Nienstedt, Race Remorse, and Sentence Reduction: Is Saying You’re Sorry Enough?” 16 JUST. Q. 99, 117-18 (1999), noted in Ward, supra note 79, at 136. 97 Murphy, supra note 79, at 439; Rhode, supra note 3, at 545-55. 98 Murphy, supra note 79, at 438.

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to their own beliefs, who have gone on to make significant improvements in our legal system and

culture.99

Similarly, requiring statements of remorse in the private hearing before Character and

Fitness Committees certainly is not the kind of action that will enhance the profession’s image

with the public, since those outside the hearing room will not know this fact. One could argue

that reported cases denying admission for those who fail to express remorse improve the image

of the public. But it would be hard to show that many in the public are aware of these cases or

would take this meaning from them.

Even if looking to remorse is not a key component of meeting the stated goals of the bar

admission system, there seems to at least be some common understandings of the role of remorse

that relate to those goals. Given the low standard of review the Supreme Court places on such

requirements- i.e, that they have a rational relationship to the “applicant’s fitness or capacity to

practice law,”100 there is probably not a strong legal challenge to its use. However, in light of its

dubious relevance, committees and courts should look to the potential harm caused by allowing

this factor in admission decisions.

V. REASONS TO ABANDON THE USE OF REMORSE IN ADMISSION CASES

A. Incentive on the Applicant to Lie

99 See, e.g., Douglas O. Linder, Who is Clarence Darrow? http://www.law.umkc.edu/faculty/projects/ftrials/darrow.htm (last visited June 23, 2007) (“ As a son of the village infidel, Clarence is bequeathed ‘a nonconforming spirit, a skeptical mind, and freelance politics that drifted toward cynicism.’ His oratorical skills are already in evidence. He participates in town debates on the issues of the day-- always argues the negative, always wins.”). 100 Schware, 353 U.S. at 239.

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The cases described in this article establish that refusing to properly express remorse has

significant consequences.101 Even in those few cases where the court overturned the decision of

the Board and admitted an applicant despite failing to express appropriate remorse,102 the

applicant suffered significant delay and likely had to incur costs, including attorney fees and lost

earnings.103 In the majority of cases discussing lack of remorse, the outcome was much more

severe, denial of admission.104

In light of this relatively clear line of authority, it seems fair to assume that many

applicants, if made aware of the significant role that remorse plays in bar admissions, will extend

an apology for their conduct to the character and fitness committee. This is likely true even if the

individual does not feel true remorse because he or she (1) truly believes in their factual

innocence, even in the face of a conviction or plea;105 (2) believes the crime for which they have

been convicted or charged is based on an improper law;106 or (3) is unable, especially in

victimless crimes, to see the need for an apology.107

101 See, e.g., Florida Bd. of Bar Examiners ex rel. M.L.B., 766 So.2d 994 (Fla. 2000). 102 See Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d 34 (Fla. 1995); Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160 (Cal. 1983). 103 For example, in the M.C.A. case, the case took over two years to move through the system. Also, at least at the Supreme Court level, she was represented by counsel. There are certainly financial consequences to such delays, including lost job, lost wages and lost opportunity for advancement. Fla. Bd. of Bar Exam’rs re M.C.A. 650 So.2d at 34. 104 See, e.g., Application of David H., 392 A.2d 83, 87 (Md. 1978)(“[T]he applicant's determination to conclude his criminal activity apparently did not flow from an “inborn” resolve to change his moral character; rather, the change was wrought as a result of the consequences to the applicant which emanated from his prosecution for those theft offenses for which he was apprehended by the police. Had he not been caught, the applicant, according to his own account, may well have continued to steal.”). 105 Hightower, 666 P.2d at 14; Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d at 34. 106 Such may be the case with offenses for marijuana, alcohol or tobacco possession. TYLER TR. WHY PEOPLE OBEY THE LAW (1990) (finding that if people regard legal authorities as legitimate, they are less likely to engage in illegal behaviors such as speeding or illicit drug use; however, those who deny the moral appropriateness of different laws are more likely to speed or use illicit drugs); Smith, supra note 70 at 256. See also Partin, 894 S.W.2d at 910. 107 Murphy, supra note 79, at 447.

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The requirement of remorse may thus result in encouraging applicants to lie, as well as

cheapening any real value that remorse might serve. As philosopher Jeffrie G. Murphy has

written:

[A] practical problem with giving credit for remorse and repentance is that they are so easy to fake; and our grounds for suspecting fakery only increase when a reward (e.g., a reduction in sentence, clemency, pardon, amnesty, etc.) is known to be more likely granted to those who can persuade the relevant legal authority that they manifest these attributes of character.108

Such would certainly be the case in bar admission. As the California Supreme Court stated, “Not

only does such coercion [in essence forcing applicants to “admit” guilt] damage one’s reputation

and self-esteem, it forces applicants to lie. Dishonesty is a quality we wish to prevent, rather than

promote, in the members of our bar.”109

Similarly, and perhaps more importantly, making remorse and the requisite apology a de

facto requirement for possible bar admission removes the value served by this concept, true

resolve to be a better person.110 In order to be a meaningful apology, the offender must, among

other factors: agree to the underlying facts, accept causal responsibility rather than express mere

108 Murphy, supra note 79, at 440. (“As Montaigne observed, there is ‘no quality so easy to counterfeit as piety—an observation echoed, so I have been told, by a Hollywood mogul who said this of sincerity: ‘Sincerity is the most precious thing in the world. When you have learned to fake that, you’ve got it made.’” See also Smith, supra note 70 at 4 (“The Federal Sentencing Guidelines allow judges to reduce punishment if a criminal defendant expresses remorse, giving convicts incentive to utter words of contrition penned by their attorneys, but leaving the judiciary with little means of differentiating between profound expressions of regret and perfunctory attempts to please the court.”); STANTON WHEELER, ET. AL., SITTING IN JUDGMENT: THE SENTENCING OF WHITE-COLLAR CRIMINAL 117 (1988), noted in Ward, supra note 79, at 135 (“ If you give too much consideration to it [remorse] then you are a sitting duck, I suppose for sham protestations of remorse and breast-beating, and buckets of tears and appeals of sympathy. And I have no doubt that some are more genuine than others, but you have got to do the best you can to evaluate those.”). 109 Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160, 164-65 (Cal. 1983); Paradoxically, expressions of remorse in situations where the party expressing remorse is getting some tangible legal benefit should perhaps make us more suspicious of the validity of the expression. One could argue that a person who is truly remorseful would not seek a benefit from the expression, “but would rather see that punishment as one step in a perhaps endless road of atonement.” Murphy, supra note 79, at 440. 110 Smith supra note 70, at 3 (“[A]pologies seem better suited to a context of moral reconciliation.”).

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sympathy and apply a shared set of moral values with the wronged party.111 Without these

factors, remorse in bar admission proceedings may be nothing more than another step in our

“culture of apology,” what theologians have called “cheap grace.”112 It is difficult to see how

encouraging either “non-apology apologies,” like that quoted from Representative Barton at the

opening of this article or, worse yet, perjurious statements substantially furthers the goals of the

admission system.

B. Ethical Difficulties for Lawyers Interviewing and Counseling Applicants With Youthful

Offenses

Given the severe consequences for an applicant who does not express remorse, lawyers in

admission cases also face a significant ethical challenge. Knowing the consequences of failure to

express remorse, the lawyer must resolve a much debated ethical quandary- namely, how to meet

one’s duties of competence and diligence in counseling and witness preparation, while not

running afoul of the lawyer’s duties of truthfulness to tribunals.113

In admission cases, this tension plays out when the lawyer, knowing that a remorseful

applicant will have a far better chance of admission than a recalcitrant one, decides how to

interview the client. Does the lawyer tell the client what is legally relevant before seeking to

gather the underlying facts from the client?

111 Smith, supra note 79 at 476-80. 112 Murphy, supra note 79, at 434. 113 Compare ABA Model Rules of Prof’l Conduct (hereinafter Model Rules) R. 1.1 (requiring competence) and 1.3 (requiring diligence and al lawyer to “act with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf” cmt. 1), with R. 3.3 (requiring candor to tribunals).

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This tension results from the somewhat conflicting roles that lawyers confront in all

cases.114 Lawyers must, of course, competently represent their clients.115 Many lawyers would

find it difficult to accomplish this task without at least getting the client’s version of the facts.116

However, if the lawyer “knows” facts that hurt the client, she would be precluded from allowing

the client to testify to contrary facts.117 In the admission context, this would mean that if the

applicant told the lawyer that she was not remorseful, the lawyer in most situations could then

not offer contrary testimony.

Because of this ethical constraint on false testimony and the difficulty of representing a

client if one remains intentionally ignorant, some lawyers have developed techniques to “learn

the facts but not ‘know’ them.”118 Professor Gillers offers two versions of this technique:

Consider the following solution attributed to one prominent lawyer: I never ask the client what it is that he contends are the facts from his point of view in the initial interview… [in order to avoid being] compromised [in deciding whether to put him on the witness stand]. The thing to do is to ask him what he suspects the other side might claim. And on November 29, 1994, Harvard law professor Alan Dershowitz said this on the Charlie Rose Show: “ I never ask a client whether he did it or not. I don’t want the client to feel that he has to start his relationship with me by lying.”119

114 In his seminal article, Professor Freedman referred to this as the “trilemma.” He argued that a lawyer cannot seek out all the relevant facts and keep that information confidential, while also being candid with the court. Monroe Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH L. REV. 1469 (1966). 115 Model Rules R. 1.1 and 1.3. 116 See STEPHEN GILLERS, REGULATIONS OF LAWYERS 394 (8th ed. 2009). 117 Model Rules R. 3.3 (a)(3) (“A lawyer shall not knowingly… offer evidence that the lawyers knows to be false. If a lawyer, the lawyers’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal….”); see also Nix v. Whiteside, 475 U.S. 157 (1986)(denying a criminal defendant’s ineffective assistance of counsel claim for his lawyer refusing to allow the defendant to testify falsely). 118 GILLERS, supra note 116, at 394. 119 Id.

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Professors Freedman and Smith offer a more nuanced, and perhaps less cynical, view of

how lawyers should understand the issue of actual knowledge.120 They look to studies on the

psychology of memory and conclude that much of our common understanding of memory is

flawed. Rather than seeing memory as a “process of reproducing or retrieving stored

information, in the manner of a videotape or a computer,” they argue that it is really a process of

reconstruction.121 Understood this way, they suggest that a witness to an unclear or ambiguous

situation actually “fills up the gaps of his perception by the aid of what he has experienced

before in similar situation…or by describing what he takes to be ‘fit’ or suitable to such a

situation.”122 Thus, they argue that a client’s initial story, especially if provided in an

unprompted narrative, will have many important facts omitted123 and may reconstruct events

“without being in the least aware that he is either supplementing or falsifying the data of

perception.”124

Regardless of how one views this issue, lawyers will still be confronted with the question

of whether they should, or must, tell clients the law before asking them to relate the underlying

facts.125 In the admission context, such information certainly would include notice that lack of

remorse for the past crimes may be sufficient to keep the applicant out of the bar.

120 MONROE H. FREEDMAN AND ABBE SMITH, UNDERSTANDING LAWYERS’ ETHICS, 202-16 (3rd ed. 2004). 121 Id. at 205. 122 Id. at 206 (citations omitted). 123 Id. at 211. 124 Id. at 206 (citations omitted) 125 See, e.g. ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE- THE DEFENSE FUNCTION, Standard 4-3.2(b), as reprinted in PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES ( John S. Dzienkowski ed., 2010-2011 ed.) (“Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take actions which would be precluded by counsel’s knowing of such facts.”).

30

Law students often learn about this quandary through the book, Anatomy of a Murder.126

In the book, a lawyer defends a soldier who has been charged with killing his wife’s alleged

rapist. The defendant during the initial interview tells the lawyer that he in fact sought out the

rapist and shot him in a bar. In response, the lawyer indicates that based on the facts as the

defendant related them, he would have no defense. However, if he was insane due to blind rage,

there was a chance he could avoid jail. Not surprisingly, the defendant, Lt. Manion, then tells the

lawyer that he does not recall much about the shooting and likely “blacked out.”127

The question of whether this lawyer acted ethically has been much debated.128 It cannot

be doubted that a lawyer may provide a client with a description of the applicable law.129

However, the line between advising a client and prompting perjury remains unclear.130

One scholar quoted and agreed with Judge Francis Finch of the New York Court of

Appeals, who wrote:

While a discrete and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide for his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.131

He concludes his analysis by suggesting that when interviewing a witness, a lawyer should

continuously think about whether there is a legitimate purpose for the next question or the next

126 ROBERT TRAVER, ANATOMY OF A MURDER (1958) (25th Anniversary ed. 1983). Columbia Pictures released the movie version in 1959. 127 GILLERS, supra note 116, at 395. 128 See, e.g, John S. Applegate, Witness Preparation, 68 TEXAS L. REV. 277, 300-04 (1989); Freedman and Smith, supra note 120, at pp. 202-16; Richard Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1 (1995). 129 Applegate, supra note 128 at 301; RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 116 cmt. b (2000) (“Preparation consistent with the rules of this section may include the following: … discussing the applicability of law to the events at issue….”). 130 Compare Freedman and Smith, supra note 120, with Wydick, supra note 128, at 50. 131 Wydick, supra note 128 at 52 (quoting In re Eldridge, 37 N.Y. 161, 171 (1880).

31

statement. If there is, the lawyer should then make sure that the question is asked or the

statement is made in the manner least likely to harm the quality of the witness's testimony.132

Professors Freedman and Smith reach a very different conclusion.133 They argue that

based on the psychology of memory, a lawyer should first try to elicit facts in the narrative form.

They urge a lawyer at this point to remain skeptical about the accuracy and completeness of the

information.134 Concluding that in most cases the lawyer will be unable to know the truth, they

suggest that the ethical lawyer do the following:

In most cases, however, the lawyer can properly give the client relevant legal advice and ask leading questions that might help draw out useful information that the client, consciously or unconsciously, might be withholding. This procedure presents risks of prompting the client to falsify evidence, but it is necessary to draw out truthful information that the client might have overlooked or might consciously or unconsciously be withholding.135

Despite years of debate, there does not seem to be an authoritative answer to this debate.136

One must still ask why this ethical issue, which is present in many cases where the

witness’s recollection of facts may be dispositive, should affect the use of remorse in admission

cases. There are two key distinctions between the normal manner in which lawyers face this

question and that presented in the admission context.

First, many cases present this ethical dilemma in a starkly different situation, one

involving what might be called a pure factual contest- e.g., did the defendant actually see the

132 Id. 133 Freedman and Smith, supra note 120, at 215-16. 134 Id. at 216. They note that there will certainly be some situations, though rare, where the properly skeptical lawyer will know that the client’s first version is true. 135 Id. 136 Professor Freedman uses in his book an anecdote where he asked two professors at a prestigious law school if they would provide a list of all countries without extradition treaties to a client who has just been convicted and is free on bail. One would provide the list, and one would not. Asked privately later by Freedman whether they thought the other’s response was unprofessional, each answered no. Freedman and Smith, supra note 120, at 197.

32

victim with a gun before he shot him. That was the underlying factual context in Nix v.

Whiteside.137 In cases of this type, the lawyer usually will have to deal with conflicting

testimony from other witnesses and physical evidence. Thus, the wisdom of putting on client

testimony concocted by the defendant without proper counseling to meet the “lecture” is

profoundly suspect. As Justice Blackmun wrote in the Nix case:

[T]he lawyer’s interest in not presenting perjured testimony was entirely consistent with Whiteside's best interest. If Whiteside had lied on the stand, he would have risked a future perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the jury might have concluded that Whiteside lied as well about his lack of premeditation and thus might have convicted him of first-degree murder. And if the judge believed that Whiteside had lied, he could have taken Whiteside's perjury into account in setting the sentence. In the face of these dangers, an attorney could reasonably conclude that dissuading his client from committing perjury was in the client's best interest and comported with standards of professional responsibility.138

Similar natural impediments to giving the remorse lecture seem to be less likely to exist.

Granted there will be some cases where the key issue is not one of “pure fact,” but is

rather the client’s state of mind. Anatomy of a Murder, discussed above, is one such case.139

However, even in that situation, there likely will be many historical facts available to test the

assertion-- statements the defendant made, his conduct on the night of the crime, etc. Remorse

137 Nix v. Whiteside, 475 U.S. 157 (1986). 138 Id. at 187-88 (Blackmun, J., concurring) (citations omitted). See also ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE- THE DEFENSE FUNCTION, Standard 4-3.2(b), as reprinted in PROFESSIONAL RESPONSIBILITY STANDARDS, RULES & STATUTES (John S. Dzienkowski ed., 2010-2011 ed.) (“Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take actions which would be precluded by counsel’s knowing of such facts.”). 139 TRAVER, supra note 126.

33

though is a moving target; one who never felt the pangs of guilt for a minor drug conviction can,

either truthfully or simply to gain admission, discover his remorse.140

This fact also presents another practical problem. How does the committee determine if

the applicant is truly remorseful? If the applicant declares his remorse and the committee finds it

not credible, the applicant, as has happened in prior cases, is then virtually certain to be

disqualified for the more serious lack of candor.141

This was the case in Application of K.B.142 In that case the Maryland Court of Appeals

reversed the Board’s recommendation to admit K.B, despite a conviction for fraudulent use of

credit cards. The Board, after a full hearing, found that:

[T]he Applicant is quite sincere in his repentance; he has done penance by making restitution to the oil company for improper use of the credit cards. He has been more than a model citizen since his sole slip from grace. He has given of his time and talents for his religious faith, which quite obviously means a great deal to him. He is faithful in his obligation as a father both financially and emotionally as attested by an affidavit executed by his former wife (in whose custody is his son...) as late as October 27, 1980, in which she extols (K.B.) as projecting an image of one “with strong Christian virtues,” “an honest and trustworthy person.”143 The Court though found that K.B. was not of good moral character, in part, due to its disbelief

that K.B. was remorseful. It looked to the applicant’s testimony that he was rehabilitated at the

time of his arrest. The Court expressed its disagreement with the factual findings of the Board

and wrote:

140 One experienced character and fitness administrator has stated: “When applicants appear unrepresented, they are often unprepared, disorganized, defensive to questions asked by Committee members, and quite often they have never even considered what they should stress to prove they have rehabilitated themselves. In addition, they often appear to be cavalier about their youthful indiscretions. By the time that a first negative report is submitted to the Court, and a formal hearing is requested, however, they have often retained counsel who has the opportunity to attempt to present the applicant in an entirely different manner.” Interview, Deputy General Counsel New Hampshire Attorney Discipline Office (July 30, 2010). 141 See Martin B. v. Comm. of Bar Exam’rs, 661 P.2d at 164. 142 Application of K.B., 434 A.2d 541 (Md. 1981). 143 Id. at 544.

34

It would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and this is not such a case. As [in a prior case] “the applicant's determination to conclude his criminal activity apparently did not flow from an ‘inborn’ resolve to change his moral character....” After fifteen months of credit card fraud, the criminal activity terminated when K.B. was arrested.144

Based on this, the Court found him not credible and denied his application.145

Second, and perhaps more importantly, the admissions process is an inopportune time

and place to ask an attorney and the applicant to grapple with this question. It is here that we

most need lawyers to set a tone of professionalism. For those applicants without clinical

experience in law school, this may be the first time where they, as an aspiring lawyer, confront

the actual practice. Regardless of how one resolves the issue of the “lecture,” there is something

about the process of having this discussion in as amorphous an area as remorse that is unlikely to

help build confident and committed professionals.

This discomfort is well demonstrated in Jess Walter’s recent novel The Zero. He

describes a scene in which an attorney for an individual who lost her spouse on 9/11 is preparing

to go before the compensation panel. The dialog goes as follows:

“Now. Dependents. You would be entitled to one hundred fifty thousand for each dependent . . . but you and your husband had no children, is that correct? “Yes,” April said meekly. “That’s correct.”

“But at one time you were planning to have children.” “No, we weren’t.”

“I just mean, at one point, there was certainly talk of children,” he said, as if dropping a hint. “Young couple . . . that kind of thing.”

“No. I told you. We were separated.” “Right. I understand. We’ve established that. But surely at some point you talked about having children.

“No. It never came up.”

144 Id. at 545. 145 Id. at 546.

35

He turned his body again, wearily, as if it were a strain to look away from his PowerPoint presentation, and his hand went quickly back to the rash on his neck. “Look. Mrs. Kraft. I don’t mean to tell you what to say, but what couple doesn’t at least talk about having children? See? These are the kinds of details that can influence the examiner and the special master and have an impact on compensation---”

“We had no plans for kids.” “---a young, attractive couple, their lives ahead of them, who had once planned for a family but were going through a difficult period, a temporary trial separation---” “I can’t have children,” April said quietly. “I had a hysterectomy when I was nineteen.”146 Such conversations are difficult in any situation. But how an applicant is interviewed and

prepared to testify in admissions hearings, with so much at stake, will certainly have a powerful

impact on how the applicant develops his or her norms and notions of how to practice law. This

is a unique opportunity for the applicant to develop and refine what Professor Kimberly Kirkland

identifies as ethical “habits of the mind.”147

Especially for those not going into firms with well-developed mentoring programs, this

early phase of their development is crucial. One empirical study of small firm lawyers in New

York found the early experiences of lawyers are the key to forming their practice and ethical

structure.148 Professor Levin wrote:

What I found striking, however, is that the lawyers I interviewed rarely spoke of lessons learned in law school when they described their ethical decision-making. Instead, they seemed to form their conclusions about how to resolve certain ethical questions during their early years in practice. Colleagues and mentors often affected their decision-making when first confronted with ethical issues. Their early conclusions appear to stay with these lawyers as they move through practice. Once these lawyers become more experienced, they do not seem to reconsider ethical questions they have previously addressed.149

146 JESS WALTERS, THE ZERO, 171-72 (2008). 147 Kimberly Kirkland, Ethics of Large Law Firms; The Principle of Pragmatism, 35 U. MEM. L. REV. 631, 636-37 (2005) (“The degree of variation in the norms at play in large law firm bureaucracies makes the experience of work in large firms fundamentally different from that in small firms and plays a crucial role in shaping large-firm lawyers' unique habit of mind.”). 148 Leslie C. Levin, The Ethical World of Solo and Small Law Firm Practitioners, 41 HOUS. L. REV. 309 (2004) 149 Id. at 376.

36

I do not mean to suggest that giving the lecture in appropriate cases is unethical.

Passionate advocacy and competence are norms that should be modeled and nurtured. But the

profession, especially in non-criminal cases, must guard against allowing advocacy to cross the

line to complicity in perjury. This is especially true since, as has been demonstrated above,

inquiring into remorse in cases of youthful offenses does not measurably further the goals of the

admission process.

Those goals, especially protecting the public, can be advanced by the committee doing

traditional fact-finding on tangible key issues, such as the applicant’s candor during the

application process and the nature of the underlying offenses. As one scholar has written in the

criminal context:

Even without gestures of contrition from offenders, the legal process can establish a factual record, assign blame, excuse accidents, identify and affirm the values breached… levy penalties, and oversee the completion of sentences and redress. What, then, does forced apology from the defendant add?150

The answer to this question seems to be little, if anything. In fact, including remorse in the

calculus seems only to force committee members to evaluate the applicant’s “interior life and

determine the nature of her beliefs, values, emotions, or intentions, thereby differentiating

genuine contrition from staged attempts to manipulate the system….”151

VI. CONCLUSION

150 Smith, supra note 70, at 256. 151 Id. at 257.

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This article is in no way attempting to minimize the importance of expressions of sincere

remorse.152 Nor is the intent to suggest that in cases of serious crimes, it is invalid for character

and fitness committees to look at remorse to protect the image of the legal profession and to help

determine if the applicant poses a future risk. However, in cases of youthful offenses, remorse

seems not to further the goals of the bar admission process in any meaningful way. In light of

this, it can becomes either a trap for the unwary153 or a litigation game played at a time when the

applicant needs to develop a deeper sense of the rules and norms of advocacy and the profession.

Given the lack of scientific precision in the process of assessing one’s fitness to practice law,

character and fitness committees should constantly evaluate the efficacy of the factors they are

using and the inferences to be drawn from the applicant’s deviation from that standard. Measured

that way, remorse, in youthful offense cases, takes on a role vastly disproportionate to its utility.

Table 1

Cases Dealing with “Youthful Offenders” from 1980-2009

Table 1

Cases Dealing with “Youthful Offenders” from 1980-2009

State

Case

Admitted or Denial

Reversed

Denied or Delayed

Remorse Discussed

Alabama Reese v. Bd. of Comm’rs of Ala. State Bar, 379 So.2d 564 (Ala. 1988) X

Morris v. Character & Fitness Appeals Bd. of Ala. State Bar, 519 So.2d 920 (Ala. 1988)

X

Arizona Application of Greenberg, 614 P.2d 832 (Ariz. 1980) X X

152 “We instinctively understand that certain kinds of apologies can be life transforming for both the victims and the offenders. Some apologies, however, can be worse than none at all.” Smith, supra note 70, at 17. 153 See, e.g., Desy v. Bd. of Bar Exam’rs, 894 N.E.2d 1135, 1138 (Mass. 2008).

38

Application of Walker, 539 P.2d 891 (Ariz. 1980) X X

Arkansas Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) X

Smith v. State Bd. of Law Exam’rs, 187 S.W.3d 842 (Ark. 2004); X

In re Crossley, 839 S.W.2d 1 (Ark. 1992) X X California In re Gossage, 5 P.3d 186 (Cal. 2000) X X Seide v. Comm. of Bar Exam’rs, 782 P.2d

602 (Cal. 1989) X X

Hightower v. State Bar of Cal., 666 P.2d 10 (Cal. 1983) X

Martin B. v. Comm. of Bar Exam’rs, 661 P.2d 160 (Cal. 1983) X X

Connecticut Scott v. State Bar Examining Comm., 601 A.2d 812 (Conn. 1992) X X

Friedman v. Conn. Bar Examining Comm., 824 A.2d 866 (Conn. App. 2003)

X X

Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) X X

District of Columbia

In re Bedi, 917 A.2d 659 (D.C. 2007) X

In re Kleppin, 768 A.2d 1010 (D.C. 2001) X X

In re Lindmark, 747 A.2d 1148 (D.C. 2000)

X X

In re Mustafa, 631 A.2d 45 (D.C. 1993) X In re Polin, 596 A.2d 50 (D.C. 1991) X In re Demos, 579 A.2d 668 (D.C. 1990) X X In re Manville, 538 A.2d 1128 (D.C.

1988) X X

Florida Fla. Bd. of Bar Exam’rs re M.B.S., 955 So.2d 504 (Fla. 2007) X X

Fla. Bd. of Bar Exam’rs v. S.P.M., 851 So.2d 694 (Fla. 2003) X

Fla. Bd. of Bar Exam’rs ex rel. O.C.M., 850 So.2d 497 (Fla. 2003) X

Fla. Bd. of Bar Exam’rs ex rel. R.L.W., 793 So.2d 918 (Fla. 2001) X

Fla. Bd. of Bar Exam’rs ex rel. John Doe, 770 So.2d 670 (Fla. 2000) X

Fla. Bd. of Bar Exam’rs ex rel. M.L.B., 766 So.2d 994 (Fla. 2000) X X

In re Fla. Bd. of Bar Exam’rs ex rel. P.K.B., 753 So.2d 1285 (Fla. 2000) X

Fla. Bd. of Bar Exam’rs re G.J.G., 709 So.2d 1377 (Fla. 1998) X X

Fla. Board of Bar Exam’rs Re J.E.G.R., 725 So.2d 358 (Fla. 1998) X X

Fla. Bd. of Bar Exam’rs re N.W.R., 674 So.2d 729 (Fla. 1996) X

39

Fla. Bd. of Bar Exam’rs re M.C.A., 650 So.2d 34 (Fla., 1995) X X

Fla. Bd. of Bar Exam’rs re L.M.S., 647 So.2d 838 (Fla. 1994) X

Fla. Bd. of Bar Exam’rs re F.O.L., 646 So.2d 185 (Fla. 1994) X

Fla. Bd. of Bar Exam’rs re B.H.A., 626 So.2d 683 (Fla. 1993)

X

Fla. Bd. of Bar Exam’rs re R.B.R., 609 So.2d 1302 (Fla. 1992) X X

Fla. Bd. of Bar Exam’rs re D.M.J., 586 So.2d 1049 (Fla. 1991) X

Fla. Bd. of Bar Exam’rs re J.H.K., 581 So.2d 37 (Fla. 1991) X

Fla. Bd. of Bar Exam’rs re R.D.I., 581 So.2d 27 (Fla. 1991) X

Application of VMF for Admission to the Fla. Bar, 491 So.2d 1104 (Fla. 1986) X

Petition of Diez-Arguelles, 401 So.2d 1347 (Fla. 1981) X X

Fla. Bd. of Bar Exam’rs Re: L. K. D., 397 So.2d 673 (Fla. 1981) X X

Georgia In re Cook, 668 S.E.2d 665 (Ga. 2008) X In re White, 656 S.E.2d 527 (Ga. 2008) X X In re K.S.L., 495 S.E.2d 276 (Ga. 1998) X X Application of Cason, 294 S.E.2d 520

(Ga. 1982) X

Illinois In re DeBartolo, 488 N.E.2d 947 (Ill. 1986) X

Iowa In re Hanus, 627 N.W.2d 223 (Iowa 2001) X

Matter of Peterson, 439 N.W.2d 165 (Iowa 1989) X X

Louisiana In re Nathan, 26 So.3d 146 (La. 2010) X X In re Brown, 951 So.2d 165 (La. 2007) X In re Bryant, 922 So.2d 471 (La. 2006) X In re Laughlin, 922 So.2d 475 (La. 2006) X In re Vendt, 924 So.2d 89 (La. 2006) X In re Knightshead, 862 So.2d 967 (La.

2003) X

In re Vanderford, 827 So.2d 1122 (La. 2002) X

In re Woodard, 803 So.2d 969 (La. 2001) X In re Lamont, 929 So.2d 1228 (La. 2006) X In re Adams, 829 So.2d 1012 (La. 2002) X In re Ansell, 788 So.2d 1172 (La. 2001) X Maryland In re Brown, 895 A.2d 1050 (Md. 2006) X X Application of G. L. S., 439 A.2d 1107

(Md. 1982) X X

Application of K. B., 434 A.2d 541 (Md. X X

40

1981) Application of G S., 433 A.2d 1159 (Md.

1981) X

Application of Maria C., 451 A.2d 655 (Md. 1982) X

Massachusetts Desy v. Bd. of Bar Exam’rs, 894 N.E.2d 1135 (Mass. 2008) X

Strigler v. Bd. of Bar Exam’rs, 864 N.E.2d 8 (Mass. 2007) X

Matter of Prager, 661 N.E.2d 84 (Mass. 1996) X X

Minnesota In re Haukebo, 352 N.W.2d 752 (Minn. 1984) X X

Nebraska In re Application of Silva, 665 N.W.2d 592 (Neb. 2003) X

In re Converse, 602 N.W.2d 500 (Neb. 1999) X

Application of Majorek, 508 N.W.2d 275 (Neb. 1993) X X

Nevada Petition of Birmingham, 866 P.2d 1150 (Nev. 1994) X

New Jersey Application of McLaughlin, 675 A.2d 1101 (N.J. 1996) X X

Application of Strait, 577 A.2d 149 (N.J. 1990) X

Application of Matthews, 462 A.2d 165 (N.J. 1983) X X

New York In re Anonymous, 857 N.Y.S.2d 812 (App. Div. 2008) X

In re Anonymous, 840 N.Y.S.2d 259 (App. Div. 2007) X

In re Anonymous, 785 N.Y.S.2d 129 (App. Div. 2004) X

Matter of Kesselman, 473 N.Y.S.2d 826 (App. Div. 1984) X X

North Carolina Matter of Elkins, 302 S.E.2d 215 (N.C. 1983) X

Rhode Island

In re Roots, 762 A.2d 1161 (R.I. 2000) X

South Dakota Application of Widdison, 539 N.W.2d 671 (S.D. 1995) X X

Vermont In re Bitter, 969 A.2d 71 (Vt. 2008) X X Ohio In re Application of Corrigan, 915

N.E.2d 300 (Ohio 2009) X X

In re Application of Grachanin, 912 N.E.2d 1128 (Ohio 2009) X X

In re Application of Wagner, 893 N.E.2d 499 (Ohio 2008) X X

In re Application of Rogers, 891 N.E.2d 736 (Ohio 2008) X X

In re Application of Creighton, 883 N.E.2d 433 (Ohio 2008) X X

41

In re Application of Blackwell, 880 N.E.2d 886 (Ohio 2007) X

In re Application of Phelps, 878 N.E.2d 1037 (Ohio 2007) X X

In re Application of Lynch, 877 N.E.2d 656 (Ohio 2007 X

In re Application of Alban, 877 N.E.2d 658 (Ohio 2007) X

In re Application of Howard, 855 N.E.2d 865 (Ohio 2006) X X

In re Application of Ralls, 849 N.E.2d 36 (Ohio 2006) X

In re Application of Olterman, 835 N.E.2d 370 (Ohio 2005) X

In re Application of Dickens, 832 N.E.2d 725 (Ohio 2005) X X

In re Application of Bagne, 808 N.E.2d 372, (Ohio 2004) X X

In re Application of Valencia, 757 N.E.2d 325 (Ohio 2001) X

In re Application of Wylie, 733 N.E.2d 588 (Ohio 2000) X

In re Application of Kapel, 717 N.E.2d 704 (Ohio 1999) X

In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) X X

In re Application of Kemp, 703 N.E.2d 769 (Ohio 1998) X X

In re Application of Hayes, 689 N.E.2d 547 (Ohio 1998) X

In re Application of Mitchell, 679 N.E.2d 1127 (Ohio 1997) X

In re Application of Nemec, 679 N.E.2d 685 (Ohio 1997) X

In re Application of Kantor, 680 N.E.2d 955 (Ohio 1997) X

In re Application of Kapel, 651 N.E.2d 955 (Ohio 1995) X

Application of Parry, 647 N.E.2d 774 (Ohio 1995) X

In re Application of Wang, 640 N.E.2d 837 (Ohio 1994) X X

In re Application of Samuels, 639 N.E.2d 1151 (Ohio 1994) X X

In re Application of Piro, 613 N.E.2d 201 (Ohio 1993) X X

In re Application of Simmons, 584 N.E.2d 1159 (Ohio 1992) X

In re Application of Carroll, 572 N.E.2d 657 (Ohio 1991) X

In re Application of Palmer, 572 N.E.2d 668 (Ohio 1991) X

Oregon In re Beers, 118 P.3d 784 (Or. 2005) X X

42

In re Carter, 49 P.3d 792 (Or. 2002) X X Application of Monaco, 856 P.2d 311

(Or. 1993) X X

Application of Rowell, 754 P.2d 905 (Or. 1990) X X

Application of Taylor, 647 P.2d 462 (Or. 1982) X X

In re Covington, 50 P.3d 233 (Or. 2002) X X Texas Bd. of Law Exam’rs of State of Tex. v.

Coulson, 48 S.W.3d 841 (Tex. App.-Austin 2001)

X

Bd. of Law Exam’rs of State of Tex. v. Allen, 908 S.W.2d 319 (Tex. App.-Austin 1995)

X

Wisconsin In re Bar Admission of Rippl, 639 N.W.2d 553 (Wis. 2002) X

In re Admission of Saganski, 595 N.W.2d 631 (Wis. 1999) X X

Matter of Heckmann, 556 N.W.2d 746 (Wis. 1996) X

In re Bar Admission of Vanderperren, 661 N.W.2d 27 (Wis. 2003) X

Matter of Gaylord, 456 N.W.2d 590 (Wis. 1990) X