Requirements for Admission

A state that licenses lawyers must answer two questions about every applicant. Does this person know enough law to handle a client's problem? And can this person be trusted with what the license confers: client money, client confidences, and the court's reliance on a lawyer's word? The prerequisites for admission divide along the same line, with education and examination addressing the first question and good moral character addressing the second.

The two screens guard against different risks, and neither can detect the risk the other exists to catch. An applicant with a strong examination score and a history of dishonesty about money passes the first screen and presents exactly the danger the second is built to find. An applicant of spotless character who has not mastered the law passes the second screen and still cannot serve a client competently. Because each screen asks what the other cannot answer, a state needs both. Education and examination come first.

Education and Examination

Admission to practice generally requires three things: a degree from an approved law school, a passing score on a written bar examination, and a showing of good moral character and fitness to practice.¹ The first two are the knowledge-based prerequisites; the third is the subject of the next section. Each state runs its own admission process, so the details vary. Most states require graduation from a law school approved by the American Bar Association, a few permit graduates of non-ABA-approved schools to apply, and every state except Wisconsin requires a bar examination.² An increasing number of jurisdictions use multistate examinations prepared by the National Conference of Bar Examiners.³ ABA approval carries weight only because a state chooses to adopt it as a condition of its own license.

Both requirements exist because legal advice is hard for a layperson to evaluate. A client usually cannot tell whether a lawyer's advice is sound until a mistake has already cost something, so the profession verifies competence before it lets anyone give that advice. The degree shows that the applicant completed a course of study an outside body has vetted. It does not prove that the graduate absorbed the material or can put it to use. The examination tests that ability, independently of the school's own grading. Each filter catches a failure the other would miss, and a state that required only one would leave a gap through which unqualified applicants could pass.

A common mistake is to treat one prerequisite as a substitute for another, as though a strong transcript could excuse a failed examination or a clean record could excuse either one. Each prerequisite screens for something different, and each must be satisfied on its own. The usual route around a second examination is admission on motion, which lets a lawyer already admitted in another jurisdiction skip the test, but generally only after practicing for a certain number of years.⁴ That route presupposes admission elsewhere, and a later section returns to it.

A state's freedom to set these details has limits. Any requirement imposed for admission must satisfy the rational-basis standard of the Due Process Clause, as in Schware v. Board of Bar Examiners, and the Privileges and Immunities Clause applies to admission, so a state may not discriminate against nonresidents without a substantial reason, as in New Hampshire Supreme Court v. Piper.⁵ Education and examination requirements applied evenhandedly to every applicant are the ordinary case and raise no such problem. A later section takes up the constitutional boundaries on what a state may add to them.

Good Moral Character

Every state requires an applicant to show good moral character and fitness to practice law, and the requirement reaches what a degree and an examination cannot: how the applicant is likely to use the license once it is granted.⁷ An applicant has not yet represented anyone, so the only evidence the state can gather is how the applicant has behaved so far. Admissions authorities therefore consider past conduct in order to predict future conduct, and they treat a history of dishonesty or irresponsibility as a warning about how the license might be used. The purpose is protective. The state is deciding whom to trust with client money, client confidences, and the court's reliance on a lawyer's word, and past behavior is the best evidence it has.

The conduct that produces denials is, for the most part, ordinary rather than dramatic, and it falls into a handful of recurring categories. The recognized grounds for denial include the following:

A criminal conviction, particularly one involving dishonesty or abuse of a position of trust.
Academic misconduct.
Termination of employment for reasons such as embezzlement or dishonesty.
Neglect of financial responsibilities, such as defaulting on student loans or failing to pay child support.
Abuse of legal processes, such as a pattern of frivolous or harassing lawsuits.
Dishonesty in the application process, including failure to disclose information.⁸

These grounds share a bearing on the traits a client must rely on: honesty, reliability with money and obligations, and respect for legal processes. A theft conviction, a firing for embezzlement, and a pattern of harassing lawsuits each give a concrete reason to doubt whether the applicant can be trusted with other people's affairs. That shared feature is also the limit on the whole standard. Misconduct that justifies denial must be reasonably related to the applicant's fitness to practice law.⁹ The inference from past conduct to future misbehavior holds only when the past conduct says something about how the person would act as a lawyer. Without that limit, a state could use the character requirement to enforce social conventions that have nothing to do with representing clients.

Two decisions mark where the line falls. re DeBartolo sits on one side. The applicant gave inaccurate information about his education, left past residences off his application, and twice falsely represented himself as a police officer, and the bar refused to certify him because the pattern showed a lack of concern for the truth. That conduct bears directly on fitness, because a lawyer's work consists largely of statements on which courts and clients rely. Cord v. Gibb sits on the other. The applicant there lived with a partner outside marriage, and she conceded that many people in her state considered the arrangement morally wrong. The Virginia Supreme Court nevertheless held that her then-unconventional living arrangement could not support a denial of admission, because it was not relevant to her conduct as a lawyer.¹⁰ The difference lies in the connection between the conduct and the practice of law. DeBartolo's conduct was dishonest, and honesty is the trait a client depends on most. Cord's conduct was unconventional, and an unconventional household tells a client nothing about whether the lawyer will tell the truth, keep a confidence, or handle money honestly. Public disapproval was present in Cord and did not matter.

The standard for admission is also broader than the standard for discipline. An application may be denied for reasons that would not justify disciplining a lawyer who is already licensed, because admissions committees can take a more proactive approach and try to keep potential wrongdoers out of the bar entirely.¹¹ The two systems ask different questions. Discipline looks backward at what a licensed lawyer has done, while admission looks forward at what an unlicensed applicant is likely to do once the license is granted. That forward-looking aim assumes future wrongdoing can be predicted from past misconduct, which is why the relationship-to-fitness limit matters: the more remote the past conduct is from the work of a lawyer, the weaker the prediction becomes.

The same forward-looking logic explains why even expunged arrests and convictions can be considered. Expungement removes a matter from the ordinary public record, but the conduct underneath it still occurred and still tells the committee something about the applicant. The authorities need the full picture to make their prediction, so a committee may weigh the underlying conduct even when a court has sealed or erased the official trace of it.

Dishonesty in the application process, including failure to disclose information, is itself a ground for denial, even when the information by itself would not have justified denial.¹² If the dishonesty comes to light after admission, the lawyer can be disciplined for misconduct in connection with the application.¹³ Model Rule 8.1 gives this ground its specific content. Rule 8.1(a) forbids knowingly making a false statement of material fact.¹⁴ Rule 8.1(b) forbids failing to disclose a fact necessary to correct a misapprehension that the person knows has arisen in the matter, and it forbids knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority.¹⁵ Later sections take those duties apart, along with their limits. A character inquiry built on predicting future conduct depends heavily on the applicant's own accuracy, so the handling of the application can become the reason for denial even when the underlying history alone would not have justified it.