Constitutional Limits on Admission

Rule 8.1(b) obliges an applicant to answer a lawful demand for information from an admissions authority, and the word “lawful” implies that some demands are not.¹ The Constitution draws much of that line. A state's power over admission is wide, because the state is choosing whom to trust with client money, client confidences, and the court's reliance on a lawyer's word. Even so, a government that conditions a license on an applicant's beliefs, associations, or past conduct answers to the First and Fourteenth Amendments like any other.

Two features of the admission process make those limits matter. The applicant needs the license and so has every reason to answer whatever the examiners ask, which means a question can coerce in a way it never could against an ordinary citizen. A state free to ask about any belief or group membership could discourage protected speech and association through the licensing screen without passing a single law against either. The standard itself raises a second worry. Good moral character is an open-textured phrase, and a standard that gives applicants no notice of what disqualifies them lets each examiner decide by personal taste.

These worries reach the bar in two forms. One challenge attacks the general character-and-fitness requirement as too vague or too broad to apply. The other attacks particular questions about an applicant's affiliations and particular oaths of loyalty. The state's interest in a trustworthy bar is the same in both. What differs is how closely each inquiry is tied to that interest and how much protected activity it reaches along the way.

Challenges to the Character Standard

A state's general requirement of good moral character and fitness withstands a facial constitutional attack, though every denial under it must still rest on conduct reasonably related to fitness to practice law. The doctrine grew out of a political fight. Every state requires an applicant to show good moral character and fitness, and when states tried to use that requirement to bar suspected members of the Communist Party from the profession, the attempt produced numerous constitutional challenges and Supreme Court decisions. Among them were Konigsberg v. California State Bar (1957), In re Anastaplo (1960), and, all in 1971, Baird v. Arizona State Bar, In re Stolar, and Law Students Civil Rights Research Council v. Wadmond.² The challengers in Wadmond attacked the requirement on its face, and the Court upheld it.³

The challengers made two distinct arguments, and each needs its own answer. A vague law fails to say what it forbids, so people guess at its meaning and officials fill the gap with personal taste. An overbroad law reaches protected speech and association along with whatever it may properly regulate, and people steer clear of the protected activity to be safe. Both arguments look strong against a phrase like good moral character, which names no particular act and could be stretched to cover anything an examiner dislikes.

The Court answered both by looking at how the phrase has been used. Long usage has given the standard a defined meaning: the absence of dishonorable conduct relevant to the legal profession.⁴ That meaning disposes of the vagueness claim, because an applicant can learn what the phrase asks from the pattern of decided cases, and the pattern shows in the grounds for denial described in the previous section: dishonesty, embezzlement, neglected financial obligations, and abuse of legal process. It disposes of the overbreadth claim too. A standard confined to dishonorable conduct relevant to practice does not reach an applicant's beliefs or associations as such, and without a credible threat that protected activity will count against the applicant, nothing is chilled. The state keeps its tool for predicting who can be trusted with client money and the court's reliance, and it gains no power to punish unpopular views.

Exam questions test two different things here, and a stem usually asks about only one. Wadmond asks whether the words of the standard survive a facial attack, and they do, because the standard is confined to conduct relevant to fitness. Cord v. Gibb asks whether a particular ground for denial falls inside that confinement, and there the answer was no. The Virginia Supreme Court held that unmarried cohabitation could not support a denial of admission, because that conduct was not reasonably related to the applicant's fitness to practice law.⁵ A valid standard does not validate every denial made in its name.

Candidates go wrong in one of two directions. Some reason that because the standard survived in Wadmond, any denial issued under it must be valid, which overlooks the tie to fitness that each denial needs. Others reason that an open-textured phrase must be void for vagueness, which overlooks the defined meaning that long usage supplies. States remain limited in what they may demand of applicants, and the tie to fitness keeps the character requirement within those limits.⁶

Affiliation Questions and Oaths

A state may ask whether an applicant specifically intends to overthrow the government by force or unlawful means, and it may require an oath to support the federal and state constitutions, but a question that asks only whether the applicant has associated with particular groups violates the Constitution.⁸ Approval of the general character standard did not settle every question and oath a state might add to it. The line between permitted and forbidden inquiries depends on what each one reaches.

A membership question fails because of what a yes answer can and cannot tell the examiners. People join groups for many reasons, and some members never share the group's unlawful aims or never learn of them, so a bare yes says little about the applicant's own purposes. The applicant needs the license, so a denial resting on that answer makes the loss of a career the price of belonging to a group, and people would stay out of lawful organizations to protect their prospects. That result punishes association as such, which the First Amendment protects. The state's legitimate interest is in learning whether this applicant is willing to live by the rule of law, and the membership question does not serve it.

A question about specific intent serves that interest directly. The legal profession is committed to resolving disputes by peaceful, reasoned means, so an applicant who intends to overthrow the government by force or other unlawful means has shown an unwillingness to abide by the system a lawyer serves. The inquiry attaches to what the applicant personally intends. An applicant who holds unpopular views, or who once belonged to a group without sharing any unlawful aim, can answer no truthfully and loses nothing by doing so.

The oath tests the same commitment more gently. An oath to support the federal and state constitutions asks for the applicant's willingness and ability to uphold them, and it demands agreement with no particular belief about policy or politics. An applicant who criticizes the government and works to change the law by lawful means can swear it in good faith, so the oath screens for willingness to follow the rule of law without penalizing any belief.

On the exam, the variable that decides these questions is whether the inquiry reaches what the applicant personally intends or only the groups with which the applicant has been connected.

Hypothetical Illustration

One state's application asks whether the applicant has ever belonged to any organization on a published list of groups, and it treats a yes as grounds for denial. Reyes joined a campus group on the list for a single semester and never shared its unlawful aim. She answers yes and is denied on that answer alone. The denial punishes association, so the question violates the Constitution. A neighboring state asks instead whether Hartley holds the specific intent to overthrow the government by force or unlawful means, and it requires him to swear to support the federal and state constitutions. Hartley answers no and takes the oath, and the process goes forward. The question reaches his own purpose and the oath asks only for willingness to uphold the constitutions, so both are permissible.

Political activity can still count against an applicant. Cases arise from time to time in which an applicant's political beliefs or activities figure in a denial, and In re Roots denied admission to an applicant who had denounced the federal government and supported placing fake liens on the property of federal officials.⁹ Fake liens on a federal official's property are conduct that bears on fitness whatever the applicant's politics, which is the connection the earlier limit requires.¹⁰

A question that survives constitutional review must still be answered, and answered truthfully. Rule 8.1(a) forbids knowingly making a false statement of material fact in an admissions matter, so a false denial of unlawful intent would be a violation in itself.¹¹ Rule 8.1(b) forbids knowingly failing to respond to a lawful demand for information from an admissions authority.¹² The word “lawful” carries weight. A demand that itself violates the Constitution, such as a request that goes no further than bare membership, falls outside the duty to respond, and the later section on unlawful demands takes up when an applicant may refuse it.

Two errors recur on this topic. The first reasons that because the Constitution protects association, a bar may never ask about political matters at all, which overlooks that the specific-intent question and the oath were both approved. The second treats the state's strong interest in a trustworthy bar as a license to ask anything, which ignores that a question reaching only group membership penalizes association without testing the applicant's own purposes.¹³