How to overcome past arrest when applying for moral character clearance at State Bar of California
This is the time of year when many law students are filing their moral character application, hoping that the six month processing time will take them right about up to when their July bar exam results will be released. For some students, this is not a sure thing.
The Typical (and Highly Desired) Path
The typical path for law students is to graduate in May, study for and take the bar exam in July, start work at a firm in August or September, receive a passing bar exam score in November, and be admitted to practice in December. It seems like a great year with lots of exciting moments.
The Path of the Student with a Past
But, some students will face a delay in their moral character application processing that will derail all of this. If a moral character application discloses arrests, for example, or other issues in a student’s past, admission in December is far less likely.
Instead, as classmates are celebrating the end of the bar exam with beer and pizza, these students are preparing to attend an “informal conference” (frequently and more accurately described as an inquisition) with the moral character committee of the Committee of Bar Examiners. Their applications are likely to be held up for many months, perhaps well into next year, and their success on the bar exam will mean nothing to their law firm if they cannot be sworn in with their associate class.
Incidents That Matter
For students with issues in their past, they often minimize those issues to the point of believing they will not matter. So what kinds of issues create problems?
Anything involving dishonesty is going to hold up a bar application. This can mean crimes involving moral turpitude, like fraud, but it can also mean non-criminal issues like accusations of academic dishonesty.
Arrests involving drugs or alcohol are problematic. The moral character committee is going to be concerned about admitting someone who may be an addict. (Addiction is already a huge problem in our profession.)
Professional licensing problems before bar admission can be an issue, depending on what those issues involved. The bar does not like its members to ignore the rules or fail to take continuing legal education seriously, so license problems that give the committee cause for concern may hold up the application.
Any failure to disclose something will hold up an application. Remember that the bar does its own investigation of moral character applications. If the student fails to disclose something that the bar finds out about through its own investigation, that will surely lead to an informal conference.
The Moral Character Application Review Process
The process by which a moral character application is subject to additional review is not only long, but it can be painful for the student.
Once an application is flagged for additional processing, the six month standard processing time is set aside. The student could be waiting many months to resolve their application. (Note to 2Ls with possible issues, you should file your moral character application early.)
The First Letter From the Bar
The first step in the process will be a letter from the committee which begins:
“A review of your Application for Moral Character Determination (Moral Character Application) has been completed. We are unable to complete the processing of your application within the 180-day period specified in the Rules of the State Bar of California (Admissions Rules) because further inquiry and analysis is needed.”
We are unable to complete the processing of your application within the 180-day period . . .
This letter is the death knell to hopes of being admitted in December. Though it seems very wrong, it is also a letter that may come long after the six month period has elapsed.
In this letter, the moral character committee will typically ask for more information.
The Invitation to an Informal Conference
If the committee is not satisfied with a student’s written response, they will issue an “invitation” to an “informal conference.” Those quotes are intentional and meaningful. The letter is not an invitation — it is a command the student must obey if they are going to succeed in having their application approved. The meeting is not an informal conference — it is a firing squad or an inquisition, depending on which analogy you prefer.
The letter will read:
I have been asked to invite you to meet with representatives of the Subcommittee at the offices of the State Bar of California . . . in an informal setting to discuss….
The Subcommittee on Moral Character (“Subcommittee”) of the Committee of Bar Examiners (“Committee”) is considering your Application for Determination of Moral Character for admission to practice law in California. I have been asked to invite you to meet with representatives of the Subcommittee at the offices of the State Bar of California . . . in an informal setting to discuss….”
The letter will go on to tell the applicant the nature of the Bar’s issues with the application.
The Informal Conference
Totally belying the invitation’s reference to the informal setting of the conference, the actual meeting is held on the record with an audio recording. On the recording the committee members will call the hearing (yes, it is a hearing) to order, state the name of the applicant and introduce the committee members, and proceed to question the applicant. This is not anyone’s idea of informal.
After the conference, the student will be notified as to whether or not they were given moral character clearance. If they took the bar and passed, this clearance is usually the last step needed for swearing in.
The committee ‘determined that you have not met your burden of establishing good moral character.’
If the determination is a negative one, the student will receive a letter saying that the committee “determined that you have not met your burden of establishing good moral character.”
The letter will include details on how to appeal the decision.
Appealing a Negative Moral Character Determination
The process of appealing a negative moral character determination is long and expensive, but for many would-be lawyers, it makes sense to pursue it. The process costs a filing fee and a lawyer to try the case, and it will probably take more than 6 months to get to trial and another 3 months for a ruling from the State Bar Court. If the student wins, the Bar can appeal, adding several months onto the process.
Avoid the Moral Character Review By Passing the First Time
Such significant and costly processes for the student who fails to pass moral character the first time highlight the need to get the application right the first time. To this end, some specific tenets are useful:
- Be totally honest with the Bar. Disclosing negative information is less harmful than withholding it and the Bar finding out later.
- Be complete. Better to include useless information than inadvertently leave out something important.
- Be diligent. Make sure that every piece of information in the application is accurate, no matter how small the detail, by tracking down confirmation of every fact. Accumulation of multiple minor errors begins to look like dishonesty.
And if there is any doubt, students should get qualified help to look over the application before submitting. Problems are best addressed at the outset and not months later on appeal. A well-crafted narrative and proper documentation may avoid the need for a lot of heartache and lost time.