Please read the Introduction, Section A (pages 1-7).

A lawyer or law firm shall not:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability:

(1) to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or
(2) to achieve results using means that violate these Rules or other law;

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

(g) engage in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes:

(1) unlawful discrimination; or

(2) harassment, whether or not unlawful, on the basis of one or more of the following protected categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, status as a member of the military, or status as a military veteran.

(3) “Harassment” for purposes of this Rule, means physical contact, verbal conduct, and/or nonverbal conduct such as gestures or facial expressions that is: a. directed at an individual or specific individuals; and b. derogatory or demeaning. Conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this Rule.

(4) This Rule does not limit the ability of a lawyer or law firm to, consistent with these Rules:

a. accept, decline, or withdraw from a representation;
b. express views on matters of public concern in the context of teaching, public speeches, continuing legal education programs, or other forms of public advocacy or education, or in any other form of written or oral speech protected by the United States Constitution or the New York State Constitution; or
c. provide advice, assistance, or advocacy to clients

(5) “Conduct in the practice of law” includes:

a. representing clients;

b. interacting with witnesses, coworkers, court personnel, lawyers, and others, while engaging in the practice of law; and
c. operating or managing a law firm or practice; or

(h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.

The full complaint is posted on Brightspace under "Class 1," and if you'd rather read that version, please read pages 13-20.

The complaint asks the New York Attorney Grievance Committee for the First Department to open an investigation into the nine law firms that pledged a total of $940,000,000 in "pro bono" services to Trump's administration. The complaint describes (a) Trump's Executive Order targeting the law firm Paul Weiss by prohibiting federal attorneys from "engaging" with the firm and prohibiting firm employees from entering federal buildings (among other things); (b) Paul Weiss' decision to make a "committment" to provide pro bono services to Trump in exchange for the recinding of the executive order; and (c) the decision of eight other law firms to make similar "commitments" to Trump, in an effort to avoid being targeted by similar execuitive orders. The excerpt below is the section of the complaint that argues that the nine law firms should be investigated to determine if their "commitments" violate the New York Rules of Professional Conduct.

_________________________

The Respondents’ Commitments to the President Demand Inquiry into Whether They Violate the New York Rules of Professional Conduct.

 The Respondents’ commitments raise ethical questions so important to the profession and the rule of law that they cannot be ignored. For the reasons stated below, the commitments violate or potentially could violate the New York Rules in at least five different respects.

(a) The Commitments Compel the Respondents to Violate Their Duty to Maintain the Independence of the Legal Profession.

            Any discussion of the obligations of a New York attorney to the rule of law must begin with the oath they take upon admission to the bar:

I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [attorney and counselor-at-law], according to the best of my ability.[1]

Thus, from their very first day at the bar, every New York attorney must honor this declaration of allegiance to the principles that safeguard democracy, the rule of law, and the fair administration of justice. As the Supreme Court made clear in Legal Services Corp. v. Velazquez,[2] those principles depend upon a legal profession that is independent of government coercion and control. Were it otherwise, the government could “prohibit[] speech and expression upon which courts must depend for the proper exercise of the judicial power.”[3]

The same fundamental principle is expressed in Paragraphs 4 and 5 of the Preamble[4] to the New York Rules:

[4] The legal profession is largely self-governing. An independent legal profession is an important force in preserving government under law, because abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice law. . . .

[5] The relative autonomy of the legal profession carries with it special responsibilities of self-governance. . . . Neglect of these responsibilities compromises the independence of the profession and the public interest that it serves. . . .

In short, it is imperative to the preservation of our legal systems that lawyers in private practice be free to choose the clients and causes they wish to represent, and especially those that might displease the very government that seeks to curb their independence.

Rule 8.4 imposes a duty on both individual lawyers and law firms to not cede that independence. First, the introductory language to the Rule makes it clear that it applies to law firms as well as individual lawyers. Second, subsection (d) prohibits a firm from “engag[ing] in conduct that is prejudicial to the administration of justice . . . .” Comment [3] to the Rule adds that any conduct “that results in substantial harm to the justice system” and is “seriously inconsistent with a lawyer’s responsibility as an officer of the court” violates the Rule. It is hard to imagine anything more “harm[ful] to the justice system” and more “seriously inconsistent” with a law firm’s responsibility to the courts than to let the government dictate whom it represents. The commitments made by the Respondents are wholly at odds with the letter and spirit of the New York Rules and with the historic role of lawyers dating back even prior to the inception of our country.

            The Respondents might argue that there is nothing wrong with a private law firm voluntarily agreeing to represent the interests of the government; it is, after all, done routinely when firms take on the government as a client. But, after telling the world that they faced dire consequences if they didn’t capitulate, it would be duplicitous for the Respondents to attempt to claim now that their commitments to the President were entered into “voluntarily.” They are, instead, the result of government strong-arming, and are voluntary only in the same sense that a shopkeeper “voluntarily” agrees to pay protection money to the mob. The only difference is that the shopkeeper has no ethical duty to resist. The Respondents, as members of a noble profession and officers of the court sworn to uphold the Constitution, do have such a duty—a duty not to “engage in conduct prejudicial to the administration of justice”—which other firms targeted by the President have rightly chosen to honor.

The Respondents might also argue, as they have in their public pronouncements in an apparent play for sympathy, that they accepted these commitments with the best interests of their clients and employees in mind. But law firms are not ordinary employers and, while they do have special obligations to their clients, those obligations do not include giving in to government control to curry favor. Their obligations to their clients must be performed within the profession’s Rules. Those Rules maintain that lawyers are foremost guardians of the constitutions, the rule of law, and the independence of a profession that is essential to any semblance of a functioning democracy.

(b)  The Commitments Give to a Nonlawyer Control over the Professional Judgments of Lawyers.

Maintaining the independence of the legal profession is so important that Rule 5.4(d)(3) prohibits a law firm from allowing anyone who is not a lawyer—regardless of whether or not they are a government official—“to direct or control the professional judgment of a lawyer.” As explained in Comment [2], “[t]his Rule . . . expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another.” One does not need to look beyond the face of the Respondents’ commitments to determine that they violate this Rule. They cede to a nonlawyer, the President, the ability to control the most basic professional judgment of a lawyer—who, and what causes, to represent.

(c) The Respondents Have Been Parties to Illegal Conduct That Reflects Adversely on their Honesty, Trustworthiness, and Fitness.

 The Respondents’ commitments also violate the criminal law.  . . .  It is, of course, not this forum’s role to enforce the criminal law but to determine whether the ethical rules have been breached. Rule 8.4(b) speaks directly to the issue presented here. That subsection provides in pertinent part that a lawyer shall not “engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer . . . .” See also the catch-all provision of Rule 8.4(h), which prohibits a lawyer from “engag[ing] in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” (Emphasis added.) Here there can be no doubt that the commitments were spawned from the crimes of bribery and extortion and that the Respondents participated in those crimes—even if reluctantly.[10]

The only remaining question is whether the Respondents’ conduct reflects on their “honesty, trustworthiness or fitness.” We hesitate to accuse these Respondents of such, but as discussed above, it is difficult to accept at face value their public statements that their deals with the President are perfectly lawful and will have no material effect on the pro bono work they do. An investigation will give the Respondents an opportunity to explain why those public statements were truthful. Absent an adequate explanation, a finding that the Respondents’ commitments violate Rules 8.4(b) and (h) would be fully justified.

(d)  Investigation Is Also Needed to Determine Whether the Respondents Have Engaged in False Advertising.

Given the vigor with which the Respondents have attempted to explain away their commitments as not changing the work they would do anyway, it seems likely that such statements have found their way into communications the Respondents have had with prospective clients. If so, they violate Rule 7.1(a)(1), which states: “A lawyer or law firm shall not use or disseminate or participate in the use or dissemination of any advertisement that . . . contains statements or claims that are false, deceptive or misleading . . . .” Rule 1.0(a) defines “advertisement” as “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.” Of particular note is that the term applies to both “public” and “private” communications, and it makes no difference whether or not the communication is successful in recruiting the prospective client. While Rule 1.0(a) excludes “communications to existing clients or other lawyers,” it nevertheless seems likely that a Respondent that made a deal with the President to buy favorable treatment would want to advertise that fact when recruiting new clients. Thus, there is more than probable cause to investigate whether Rule 7.1(a)(1) has been violated.

(e) The Commitments Create Unwaivable Conflicts of Interests.

In their haste to give in to the pressure the Administration brought to bear upon them, the Respondents created for themselves conflicts of interest so pervasive that they cannot be avoided under the New York Rules.

Rule 1.7(a)(2) states that a conflict exists where there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected not only by the interests of another client but “by the lawyer’s own financial, business, property or other personal interests.” (Emphasis added.) Comment [1] to Rule 1.7 provides that “[l]oyalty and independent judgment are essential aspects of a lawyer’s relationship with a client. The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free from compromising influences and loyalties.”

Here, every lawyer in every Respondent Firm has a “personal interest” in avoiding saying or doing anything that might displease the President. The fear of incurring his anger necessarily inhibits the Respondents from advocating “zealously” on behalf of all their clients, regardless of whether they are paying or pro bono, and regardless of whether the advocacy is in a proceeding directly against the government or in some other context where zealous advocacy requires saying something the Administration won’t like. That defeats the whole purpose of the adversarial system and undermines the rule of law. As the court put it in Perkins Coie,

a fundamental premise of the rule of law is that when parties challenge the government, their lawyers oppose the designated representatives of the State, and the system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. This safeguard against government overreach fails when attorneys cannot advance the undivided interests of their clients for fear of reprisal from the government.[11]

The Respondents may argue that this conflict is waivable, but it is far too omnipresent and pervasive for that. Under the pertinent provisions of Rule 1.7(b), conflicts of interest are waivable only if “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to [the] affected client” and “[the] affected client gives informed consent, confirmed in writing.” See Rule 1.7(b)(1) & (4). Only a lawyer with Mahatma Gandhi’s integrity and unconcern for his personal well-being could possibly claim that his representation of a client before a government headed by the current President wouldn’t be influenced by the potential of swift retribution for any criticism of the Administration. Nor is it possible for the client’s consent to be “informed,” for neither the client nor the Firm can predict what perceived transgression might in the future set off the President’s ire. As a group of legal ethics professors put it in an amicus brief filed on their behalf in the Jenner & Block case,

[I]nformed consent can be given only after a lawyer has ‘communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.’ Firms that have entered into [the commitments at issue here] with the President simply cannot provide this information to their clients, meaning clients cannot waive their lawyers’ conflicts under the legal profession’s ethical rules.”[12]

Conclusion

For the reasons stated above, the obligations imposed on the Respondents by their capitulations to the Administration cannot be reconciled with the Respondents’ ethical obligations under the New York Rules. The implications for the survival of our constitutional order are obvious and profound.

We are not at this time asking that any individual be disciplined. The remedy we seek stops short of that. We are asking only that the New York Courts direct the Respondent Firms to show cause why they should not receive a public censure and/or be ordered to cease and desist from further compliance with the commitments they made. Our proposed remedy will provide the Respondents with the means to extricate themselves from the untenable situation in which they now find themselves and allow them to go back to doing what they have always done best—providing world-class legal services to rich and poor alike, without fear or favor—and without interference from the government.

We recognize that what we are asking for may itself unleash more threats directed at all involved. But the more we fear, the more urgent the need to act. The very existence of the rule of law is at stake.

Prayer for Relief

The Complainants respectfully request that the Committee take the following actions:

(1) Open an investigation into whether the commitments the Respondents have made to the President violate the New York Rules; and

(2) If warranted by the evidence gathered in the investigation, recommend to the Appellate Division that it direct the Respondents to show cause why they should not receive a public censure and/or be ordered to cease and desist from further compliance with such commitments.

Respectfully submitted,

/s/ Emily Jane Goodman

__________________________________________

Justice Emily Jane Goodman, New York State Supreme Court, New York County (Ret.)

Beldock Levine & Hoffman LLP

99 Park Avenue, PH/26th Floor

New York, NY 10016

egoodman@blhny.com

212-490-0400

/s/ Ellen Yaroshefsky

__________________________________________

Ellen Yaroshefsky

Howard Lichtenstein Professor of Legal Ethics

Maurice A. Deane School of Law

Hofstra University

121 Hofstra Boulevard

Hempstead, New York, NY 11549

Yaroshef@hofstra.edu

516-463-5882

/s/ George M. Cohen

__________________________________________

George M. Cohen

Brokaw Professor of Corporate Law

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903-1738

gcohen@law.virginia.edu

434-924-3814

/s/ Susan P. Koniak

__________________________________________

Susan P. Koniak

Professor of Law, Emerita

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215

spkoniak@bu.edu

617-353-3136

/s/ Nancy B. Rapoport

__________________________________________

Nancy B. Rapoport

UNLV Distinguished Professor & Garman Turner Gordon Professor of Law, William S. Boyd School of Law, and Affiliate Prof. of Bus. Law & Ethics, Lee Business School

William S. Boyd School of Law

University of Nevada, Las Vegas

4505 S. Maryland Parkway

Box 451003

Las Vegas, Nevada 89154-1003

nancy.rapoport@unlv.edu

713-202-1881

/s/ Abbe Smith

__________________________________________

Abbe Smith

Scott K. Ginsburg Professor of Law

Director, Criminal Defense & Prisoner Advocacy Clinic and Co-Director, E. Barrett Prettyman Fellowship Program

Georgetown University Law Center

600 New Jersey Ave. NW

Washington, DC 20001

smithal@georgetown.edu

202-662-9579

/s/ Sung Hui Kim

__________________________________________

Sung Hui Kim

Vice Dean for Curricular and Academic Affairs

Professor of Law

UCLA School of Law

385 Charles E. Young Dr. East

Los Angeles, CA, 90095

sung.kim@law.ucla.edu

310-825-4841

/s/ Douglas G. Robinson

__________________________________________

Douglas G. Robinson

Attorney at Law

60 Richards Lane

Annapolis, MD 21401

robinsondg@msn.com

410-353-3868

(Admitted in Washington, DC only)

/s/ Robert Fabrikant

__________________________________________

Robert Fabrikant

(Ret.) Professor in the Practice

Howard University School of Law

2900 Van Ness Street NW

Washington, D.C. 20008

baldofab@gmail.com

202-413-2325

/s/ Julia E. Sullivan

__________________________________________

Julia E. Sullivan

Law Office of Julia E. Sullivan LLC

60 Richards Lane

Annapolis, MD 21401

juliasulivan@jeslaw.us

410-707-8608

[1] The oath is required by NY Jud. L. § 466 and is found in Art. XIII, § 1, of the New York Constitution. This pledge is of such fundamental importance that the legislature requires that it be administered in open court and that the assumption of its obligations be evidenced by the newly admitted attorney’s signature in a book specially kept for that purpose. NY Jud. L. § 466.

[2] 531 U.S. 533 (2001).

[3] Id. at 545.

[4] While the Rules adopted by the Appellate Division do not contain a Preamble, the version published by the New York State Bar Association does, “to provide guidance for attorneys in complying with the Rules.” See Note to Professional Standards published at New York State Bar Ass’n website, https://nysba.org/attorney-resources/professional-standards/?srsltid=AfmBOopUotmG7X7Idr5h0JeAZRI8dL7pok7X2-DAqxQmc8c6iNB1Am63. 

[5] 18 U.S.C. § 201(a)(1) defines a public official as any “officer . . . or person acting for or on behalf of the United States . . . in any official function, under of or by authority of any . . . branch of Government.”

[6] The word “corruptly” appears in the bribery statute to distinguish that crime from the lesser offense of offering a public official a “gratuity” to curry favor. See 18 U.S.C. § 201(c). The Justice Department Manual explains the principal difference between the two offenses:

The two offenses differ in several respects. The most important of these differences concerns how close a connection there is between the giving (or receiving) of the thing of value, on the one hand, and the doing of the official act, on the other. If the connection is causally direct - if money was given essentially to purchase or ensure an official act, as a “quid pro quo[,]” then the crime is bribery. If the connection is looser – if money was given after the fact, as “thanks” for an act but not in exchange for it, or if it was given with a nonspecific intent to “curry favor” with the public official to whom it was given – then it is a gratuity.

DOJ Manual § 2041, https://www.justice.gov/archives/jm/criminal-resource-manual-2041-bribery-public-officials (archived content) (emphasis added). Even if some of the Respondents were able to argue successfully that their “thing of value” is being given after the fact to “curry favor,” they would still be guilty of the lesser “gratuity” offense, which is also a felony.

[7] 18 U.S.C. § 201(a)(3) defines official act as “any decision or action on any . . . matter . . . which may be brought before any public official, in such official’s official capacity.”

[8] While it may be arguable that the President personally is immune from prosecution for accepting the bribe or gratuity, see Trump v. United States, 603 U.S. 593 (2024), his claimed immunity makes it no less a crime, and certainly not for the party offering it.

[9] Extortion and bribery are not mutually exclusive crimes. Evans v. United States, 504 U.S. 255, 267 n.18 (1992).

[10] See also Brief of Legal Ethics Professors as Amici Curiae, in Jenner & Block, supra, at 12-15. A copy of this brief is provided as Attachment D (hereinafter “Ethics Professors’ Brief).

[11] Perkins Coie Order, slip op. at 3 (citing an amicus brief filed on behalf of client general counsels, citations and internal quotation marks omitted).

[12] Ethics Professors’ Brief, Attachment D, at 8 (citation omitted, emphasis added).

Please submit your answers to the following questions on Brightspace:

First, please answer the following three questions:

1. The Ethics Complaint Against Pamela Jo Bondi accuses Bondi of being unethical in three different contexts: (1) the firing of Erez Reuveni for his work on the Kilmar Garcia case; (2) the forced resignation of Denise Cheung for her refusal to open a criminal investigation; and (3) the forced resignation of prosecutors related to the Eric Adams prosecution. Which of those three incidents do you feel is the most unethical and why?

2. The three ethics complaints you read for today (Ethics Complaint Against Pamela Jo Bondi, Ethics Complaint related to nine law firms that made agreements with President Trump, and Ethics Complaint Against Letitia James) all claim violations of New York Rules of Professional Conduct. Please make a list of all of the ethical rules that are cited in the different complaints (there are at least ten). In your list, please include the rule number and some language that describes the rule (i.e. “Rule 8.3 – misconduct”).

• • I realize that this question may seem like busywork, but the purpose is to (a) draw your attention to the types of conduct that is regulated by the New York Rules of Professional Conduct and (b) start building connections between the language of those rules and real-life examples.

3. You have your own moral code (that is, a sense of what is right and wrong) that exists separate from any professional code of ethics. Please respond to one of the following prompts as a tool for describing or reflecting on your own moral code:

• • Think of someone whose morals or values you greatly admire and describe that person. What is it about their behavior that feels admirable or “right” to you?
  • Make a list of some of your moral principles or beliefs. Please explain each one and, if possible, explain where you learned or picked up that idea.
  • In attorney Scotten’s letter he says: “it was never going to be me.” What types of conduct is on your own “it’s never going to be me” list?  

Second, please answer any one of the following seven questions:

4. What conclusions did you draw from the reading about the operation of the Rules of Professional Conduct? (Please explain how you reached those conclusions).

5. One argument that the Ethics Complaint Against Pamela Jo Bondi addresses is the suggestion that lawyers appointed to political positions (like the Attorney General) should not be subject to the ethical professional rules that apply to other lawyers. Please describe why you agree or disagree with that proposal.

6. Bondi made an analogy between Mr. Reuveni’s conduct and a “defense lawyer walking in conceding something in a criminal matter.” What is your opinion of the strengths and weaknesses of that analogy?

7. The Ethics Complaint Against Pamela Jo Bondi describes a situation (on page 9) where Mr. Bove gave the lawyers in the Public Integrity Unit one hour to decide whether to sign the motion. One lawyer did “to protect the other lawyers” from being fired. What would you do in such a situation and why?

8. The Ethics Complaint related to nine law firms that made agreements with President Trump alleges that the law firms violated the spirit of the New York lawyers’ oath. You will be required to take this same oath: do you think it will be difficult or easy for you to comply with this oath and why?

9. N.Y. Rule of Professional Conduct 8.4 describes eight categories of conduct that lawyers are prohibited from engaging in. Which of these categories surprised or concerned you the most and why?

10. Did you have any reactions to or reflections on the reading that were not captured by any of the other questions?

First, please read pages 23-33 (starting with "the character and fitness inquiry" on page 23 and ending before Problem 1.1 on page 23.)

Second, please read pages 84-90 (starting with "the disciplinary system" on page 84).

(a) A lawyer shall be subject to discipline if, in connection with the lawyer’s own application for admission to the bar previously filed in this state or in any other jurisdiction, or in connection with the application of another person for admission to the bar, the lawyer knowingly:

(1) has made or failed to correct a false statement of material fact; or
(2) has failed to disclose a material fact requested in connection with a lawful demand for information from an admissions authority.

Comment
[1] If a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted and in any event may be relevant in a subsequent admission application. The duty imposed by this Rule applies to a lawyer’s own admission as well as that of another.

New York, NY. The City University of New York School of Law announced yesterday, May 18, that it would remove all questions related to criminal history from its school application. This will make CUNY Law only the second school in the country to forgo interrogating the worth of an applicant based on their contact with the criminal legal system. The effort was led by current and former members of the CUNY Law Formerly Incarcerated Law School Advocacy Association.

Unlock the Bar is pleased to see CUNY Law take this step forward towards a more just legal profession. Removing Character and Fitness questions from law school applications is key to opening the legal profession to more people and ensuring that those who practice law understand the effects it can have on the lives of people it punishes. It is imperative that more schools remove these questions from their applications. They pose a barrier to systems impacted people participating in law, potentially dissuading applicants from applying in the first place. They also act as a way of reinforcing the Character and Fitness at the Bar application level, a process rooted in the intentional exclusion Black, Native, and Jewish peoples as well as many others.

While we recognize that CUNY Law is a special institution, with a devotion to service and uplift that other law schools may not have, we hope to see other schools follow in CUNY’s lead. This is a big win for our profession and for systems impacted people, and it should be a win that everyone can partake in regardless of what school they want to apply to.

Unlock the Bar Press Statement

unlockthebar@gmail.com

The Impact of Question 34 on Law Students
When developing question 34, there was little or no consideration of its impact on law students. New data suggests that an inquiry into mental disability, in and of itself, may have harmful effects on law students seeking to be admitted to the Bar.22

Nearly half of the participants in 2018 ABA survey of law students believed it would be better if mental health obstacles remained private, noting a fear of delayed admission to the bar.23 Furthermore, a majority of respondents preferred to seek health professional, instead of the dean of students or Lawyers Assistance Program for any such mental health concerns, including drug or alcohol abuse.24

A 2019 survey conducted by Kaplan Bar Review found that 74% of the 303 law student graduates who participated in the survey believed that state bar examiners should be barred from asking students about their history of mental health issues on bar examination applications.25 The same survey also found that 61% of law students believed that state bar examiners also should not be permitted to ask students about addiction-related treatments on bar examination applications.26 

The overwhelming opinion expressed by the surveyed law student graduates was that “asking applicants about their mental health or past substance abuse challenges is irrelevant to the job of being a lawyer.”27 The inquiry into mental health and substance abuse disorders within question 34 systemically ignores two important facts about the law school experience: (1) “[l]aw students who begin law school with no major pre-existing mental health conditions frequently acquire mental health impairments as a result of their experience”28; and (2) “[f]or law students who begin law school with pre-existing
mental health issues . . . , and those in recovery, the stressors of law school may intensify the conditions.”29 Thus, by asking recent law graduates about these challenges, and basing bar admission decisions on their responses, the bar examiners are punishing individuals for challenges created, or significantly exacerbated, by the process required for even reaching admission.

Nobody wants the careers of future lawyers to be sabotaged, or their health imperiled, by law students denying themselves necessary treatment when they need it most. That is precisely the impact of an inquiry into an applicant’s mental disability history. Furthermore, as described in the sections below, there is no evidence that this inquiry effectively screens out unfit attorneys. Question 34 is a lose-lose proposition, and we respectfully urge its elimination.

This week’s readings are all connected to the bar application, specifically the inquiries into (1) academic discipline and the related rules about plagiarism (Q.12); (2) an applicant’s criminal history (Q.26); and (3) an applicant’s mental health (Q.35). Please answer any five of the following ten questions and submit your answers to the following questions on Brightspace:

1. What do you think is the aspect of plagiarism that is most confusing to law students, at least at the beginning of the 1L year?

2. Question 12 on the bar application asks whether you have ever “been subjected to discipline by any institution of learning . . . for conduct which might reflect on your character.” What are the benefits and harms (pros and cons) of including this question in the application? Please consider the benefits and harms to both applicants and future clients.

3. Question 35 on the bar application asks whether “within the past seven years, [the applicant has] exhibited or engaged in any conduct or behavior, including conduct or behavior resulting from a condition or impairment, that could call into question your ability to practice law in a competent, ethical, and professional manner?” What are the benefits and harms (pros and cons) of including this question in the application? Please consider the benefits and harms to both applicants and future clients.

4. Question 26 on the bar application asks “Are you a defendant in a pending criminal matter, or have you, at any age, unless specifically excluded below, been charged with, indicted for, tried for, convicted of, or pleaded guilty to, any felony or misdemeanor or the violation of any law? In your response to this question, disclose any matter in which you were adjudicated a youthful offender or received an equivalent adjudication in another jurisdiction.” What are the benefits and harms (pros and cons) of including this question in the application? Please consider the benefits and harms to both applicants and future clients.

5. As you read, both the question about mental health and the question about criminal history have been recently revised on the New York Bar application. Which of those two changes do you think is the most important and why?

6. How would you describe the relationship between the rules of professional conduct and the character and fitness requirements for bar admission? That is, how does Rule 8.1 connect to the questions on the bar application?

7. What role should the legal profession play in trying to prevent the kinds of harms described in “What Can You Do With a Drunken Lawyer”? That is, are there steps that should be taken by the bar association at the character and fitness stage, or later, to try to prevent these kinds of situations?

8. In your opinion, how effective is the character and fitness process in ensuring that only competent and honest people are licensed as lawyers and why?

9. Pages 28-30 of the textbook describe different bar admission cases. Which of those cases do you think was particularly rightly or wrongly decided and why?

10. Please describe any reactions or responses you have to the readings that were not captured by any of the other questions.