School of sharks? Bar fitness requirements of good moral character and the role of law schools

"What do you call three lawyers at the bottom of the ocean?

A good start!"

INTRODUCTION

Lawyers do not enjoy a positive public image. Lawyer jokes have been a perpetual source of "entertainment" for a long time. Lawyers today are faced with greater disrespect than yesterday's generation, as the public's perception of lawyers has declined over time.1 One possible cause may be our society's ability to communicate with anyone, anytime, anywhere. We have become an instantaneous society. With the speed of technological advances, young lawyers have little time for reflective decision-making, and this pressure has substantially increased for inexperienced lawyers to engage in unethical behavior.2 Our society is changing rapidly, but the one thing that has remained consistent over the past few decades is the perception that lawyer professionalism is declining.

The legal profession's efforts to ensure professionalism and resurrect a professional image must begin with law schools. Law schools have the ability teach students important legal ethics and to report unethical behavior. Law schools are participants in the legal profession and should take an active role regarding unethical law students. Law schools should not feed the feeding frenzy of sharks.

This Note will explore whether law schools adequately admit, advise, and prepare students to become ethical lawyers. Specifically, what obligation does a law school have, upon admitting students to law school, to inform students of ethics requirements to sit for and be admitted to the state bar? Additionally, what responsibility do law schools owe to the legal profession to educate and prepare students for the practice of law in light of the general requirements of character and fitness for bar admission? Furthermore, this Note addresses to what extent law schools screen and advise applicants for character and fitness problems, provide rules for student conduct and implement discipline for misconduct, and report conduct to the state bar authorities that may adversely affect a student's character and fitness. Finally, this Note makes suggestions for ways law schools can improve the disclosure of character and fitness information to students, as well as prepare students to competently practice law. Law schools should commit to an active role regarding legal professionalism.

In addition to traditional case law and secondary source research methods, research for this Note included contact with law school Assistant or Associate Deans across the country, and visits to law school websites.3 The purpose of the correspondence was to obtain a sample of law school information from a variety of geographic locations, particularly Missouri. Many schools are currently wrestling with these issues and welcomed correspondence. The correspondence discussed law school application and admission information and the treatment of student misconduct.4 Many law schools indicated a recent heightened awareness of the need for increased ethical teachings, and others are focusing on how to provide adequate information to potential students and increase ethical teachings to prepare students to practice law.5

Generally, before accepting law school applicants, law schools require that they have completed a four-year undergraduate degree or acceptable substitute, taken the Law School Admissions Test ("LSAT") administered by the Law School Admissions Council ("LSAC"), provided letters of recommendation, and paid the requisite application fees.6 Admission to law school is primarily based on an applicant's LSAT score and the applicant's undergraduate grade point average.7 Law schools also consider other factors such as honors and achievements, extracurricular activities, the type of undergraduate courses completed, work experience, and ethnic or cultural factors contributing to diversity at the law school.8

Although many note that the public's perception of lawyers has declined recently, this perception has in fact been "declining" for some time. A 1985 survey indicated that over fifty percent of state and federal judges, as well as corporate executives, considered legal professionalism on the decline.9 In 1999, the District Court for the District of Columbia noted that civility among the legal profession has declined and is a "major topic of concern among lawyers, judges, and legal scholars."10 Most notably, conduct by former President Clinton, at one time the highest lawyer in public office, has been under fire, seriously undermining public confidence in the legal profession.11 Resurrection of professionalism within legal practice is important not only to lawyers, judges, law professors, and law students, but also to the society that they serve.

Many members of the legal profession who adhere to ethical standards deserve respect for the attainment of a Juris Doctorate. Although less than ideal members exist in any profession, the majority of lawyers should not be defined by those errant individuals. "Lawyer" should bring to mind words like responsible, hard-working, truthful, faithful, defender of rights, and problem-solver, not words like shark, vulture, ambulance chaser, slimy, sneaky, and so forth. The word "lawyer" should command respect.

1. THE MEANING OF "PROFESSIONAL" AND THE RESPONSIBILITY OF THE LEGAL PROFESSION

Professionalism is difficult to define, and its attributes differ according to different professions. Generally, a profession is defined as the members of a "vocation [collectively] requiring advanced education and training."12 The legal profession is distinguished by the additional educational requirement of a Juris Doctorate. Becoming a lawyer and a member of the bar is not a right, but a privilege that is burdened with conditions.13

To earn the privilege to practice law, applicants must meet state mandated qualifications, including standards of fitness. Fitness traits include honesty, reliability, responsibility, trustworthiness, and truthfulness.14 Similar to applicants in many other jurisdictions, Missouri applicants have the burden of demonstrating that specific fitness qualifications have been met.15

Many sources exist for identification of values in the legal profession. The leading authority, the American Bar Association ("ABA") Model Rules of Professional Conduct, has been adopted in some form by forty-three states.16 The Model Rules offer guidance for lawyer behavior and a basis for lawyer discipline. Members of a state's bar must abide by ethical rules adopted by that state.

For example, Missouri, which adopted the Model Rules with little modification on August 7, 1985,17 requires "every applicant for admission to the bar of this state, in addition to all other qualifications" to "be of good moral character, fit to practice law, and at least eighteen years of age."18 Other qualifications include graduation from an accredited ABA law school,19 passing the bar exam,20 and passing the Multi-State Professional Responsibility Examination.21 Missouri's Rule 8 is designed to exclude persons who do not possess good moral character.22

State courts have the authority to accept or reject an applicant for admission to the bar.23 The Board of Bar Examiners findings are merely advisory and a court is not bound by a Bar Examiner's decision to admit or deny an application to the bar.24 A court can conduct an independent review of the evidence to determine an applicant's fitness to practice law, disregarding a board's recommendation or a law school's finding regarding student misconduct.25 All members of the public, whether individuals or corporations, have problems that necessitate the services of a lawyer. State imposed standards of professional conduct safeguard public expectations regarding lawyer conduct and the judicial system.

A. WHY SOCIETY SHOULD CARE WHETHER LAWYERS ACT PROFESSIONALLY

Professionalism is an important aspect of legal practice. The Missouri Supreme Court has noted that the certification of attorneys for practice is to protect the public and the administration of justice.26 The Kansas Supreme Court has noted where lawyers do not care about professional integrity, their clients may become victims of their misconduct.27 Even highly intelligent clients can become vulnerable when they are totally dependent on their lawyer for representation.28 Society, as well as the legal profession, will suffer. A legal education is costly. Those abiding by ethical standards deserve to have their law school investment protected by ensuring professionalism in the field.

Many lawyers handle client finances, and a client must be able to trust a lawyer when he hands over a fee. The potential exists for the lawyer to use the client's finances for his own personal interests, instead of using the funds for filing fees, etc.29

Another example of potential lawyer self-motivated behavior involves contingent fees and settlement. Lawyers help clients decide what is a fair settlement and when to settle.30 Clients depend on their lawyers for communication regarding settlement offers so that they may make informed decisions. If society can not trust lawyers to behave in their client's best interest, then the most vulnerable members of society will suffer. Specifically, lawyers who represent clients on a contingent fee basis could choose to pass up perfectly reasonable settlements and gamble the client's interest for a larger monetary gain thereby receiving a greater contingent fee. The judicial system has recognized the specific need for public protection regarding this issue, and this type of self-interested behavior is prohibited by the rules as adopted in each state. The Model Rules specifically mandate that a lawyer has a duty to act in the client's best interest,31 that a lawyer must communicate settlement offers to the client,32 and that a lawyer must abide by the client's decision of whether or not to accept the offer.33 Mishandling client's funds is a violation of the Rules and grounds for discipline.

The public deserves the security of knowing that a lawyer will act in a professional manner or suffer disciplinary consequences. Courts view their role as one of protecting the public and "safeguard[ing] the justice system by assuring that those admitted to the bar are of such character and fitness as to be worthy of the trust and confidence such admission implies."34 The public demands that lawyers abide by professional ethics.

The ability to become a lawyer and enter the legal profession is determined by each state. Each state's judiciary has broad power to determine the requirements for admission to the bar within the constraints of the Fourteenth Amendment.35 Qualification requirements must have a rational relationship with the "applicant's fitness or capacity to practice law," and can not be related to their political, religious or racial status.36 For instance, the Florida Supreme Court held that admitted homosexual orientation does not reflect on a lawyer's fitness to practice law.37 Evidence of unfitness must be clear and convincing and any lingering doubt should be resolved in the applicant's favor.38 When an applicant is admitted to the bar, the bar is sending a message that the lawyer is fit to serve as an officer of the court, and will adhere to ethical requirements.39

B. RESURRECTION OF THE PROFESSIONAL IMAGE

Most lawyers are honest, generous, and act in their clients' best interests. Unfortunately, a few unethical lawyers taint the image of the entire profession.40 The Missouri Supreme Court notes that bar members, as officers of the court, must "conform to a high standard of ethics."41 If these standards are not met, the legal profession risks disrepute and the administration of justice will be impaired.42 Other jurisdictions hold the same ideology.43 Under Arkansas rules "intentional conduct involving dishonestly, fraud, deceit, or misrepresentation" adversely reflects on the fitness to practice law.44 Specifically, regarding President Clinton, this conduct is "rendered more grievous by the fact that in this instance the perpetrator ... was at the time of the conduct in question the holder of the highest public office of this country.45 This type of misconduct reflects poorly on the profession at large. other organizations also firmly believe that a lawyer's misconduct reflects poorly on the profession at large.

Concern for legal professionalism led the Forty-eighth Annual Meeting of the Conference of Chief Justices on August 1, 1996, to commission a National Study and Action Plan regarding lawyer conduct and professionalism.46 The Conference addressed concern over the decline of the legal professional image due to the perception, and the reality, that some members of the bar do not adhere to the principles of professionalism.47 Unethical lawyers have created a lack of public confidence which can "impede the effective administration of justice."48

The objective of the chief justices' National Action Plan on Lawyer Conduct and Professionalism is to correct behavior of unprofessional lawyers.49 An additional objective is to highlight the behavior of lawyers conducting themselves in a professional manner, in order to assist in rehabilitating the professional image.50 Ethical and professional lawyers deserve public respect, confidence, and trust, and the unethical minority of the legal profession should not be permitted to tarnish their image. Furthermore, applicants for membership to the bar deserve the confidence that their admission will be met with public trust and respect. The entire profession must work together to resurrect the public's trust in the legal profession.

C. THE MEANING OF GOOD MORAL CHARACTER

The Model Rules of Professional Conduct state that professional misconduct for a lawyer includes engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation."51 Lawyers engaging in crime, if caught, may suffer legal consequences, but not all crimes committed or dubious conduct engaged in by a lawyer reflects adversely on his fitness to practice law.52 The Model Rules explain that a lawyer should only have to answer professionally for offenses relative to the fitness requirements to practice law.53 These include offenses involving "violence, dishonesty, breach of trust, or serious interference with administration of justice."54

So what is good moral character? Justice Frankfurter stated that, "[f]rom a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as 'moral character.'"55 The qualities of good moral character seem vague and lack concrete definition.

Easier is defining what is not good moral character. Behavior that casts substantial doubts on an applicant's "honesty, fairness, and respect" comprises evidence that one lacks good moral character.56 Cheating on a bar examination is a particularly egregious example.57

Crimes or outrageous behavior involving moral turpitude are also evidence of one's lack of good moral character.58 Behavior, not necessarily criminal, involving hostility, threats, lying, deceit, and misrepresentation are particularly cause for concern.59 Perjury, fraud, obstruction of justice, and witness tampering are examples of crimes that reflect adversely on moral character and fitness to practice law.60 Generally, crimes involving violence, drugs, dishonesty, and disrespect for others or the law, provide evidence that an applicant might be unworthy of the public's trust to competently handle legal matters.

To adversely affect good moral character and fitness, conviction of a crime charged or a finding of guilt is not necessary. This is particularly important because when assessing good moral character, bar examiners can take an applicant's suspected criminal behavior, or other questionable conduct, into consideration even if charges are dropped.61 To illustrate, in In re McLaughlin, the applicant indicated that a disorderly persons arrest charge had been dropped, stating that the charges related to a peaceful protest.62 Despite the dropped charges, the court still examined the circumstances leading to the arrest.63 As it turned out, the incident was not a peaceful protest, but instead involved abusive and offensive language on the steps of a police department while the applicant was intoxicated on a Sunday morning.64 The court found that the mischaracterization of the incident evidenced a lack of candor, and uphled denial of the applicant's admission to the bar.65

Based on the premise that the practice of law is a privilege, not a right, courts are given broad discretion regarding whether an applicant meets the ethical fitness requirements of the state bar.66 For instance, applicants may not hide behind the shield of the First Amendment regarding questionable speech. Bar commissions can consider an applicant's conduct regarding First Amendment protected speech when assessing his or her character.67 The courts can go behind constitutionally protected speech and consider the nature and context of the speech as well as its ethical reflection on good moral character.68 The purpose of the bar commission is not to prosecute for speech, but to consider "an investigation of the conduct of [an applicant] for the purpose of determining whether he shall be [admitted]."69 Protecting speech under the First Amendment but deeming the speech as adverse to fitness requirements reinforces the notion that the practice of law is a privilege, not a right.

Furthermore, considering other constitutionally protected conduct, the Supreme Court has upheld inquiries into memberships of organizations to overthrow the Government by force or violence.70 The legal profession is dedicated to "peaceful and reasoned settlement of disputes."71 Justifying the consideration of questionable, but constitutional behavior, the Court reasoned that the constitutional oath required for admission to the bar requires the "applicant to swear or affirm that he will support the constitution of the United States."72 The Court said that membership in the organization is not at issue, but the conduct of the applicant relating to the organization may prevent fulfillment of the necessary fitness to practice law requirements.73 As an officer of the court a lawyer must respect the law. Behavior evidencing disrespect for the law adversely affects an applicant's good moral character and fitness.

Candor is paramount to the bar authorities. Refusing to candidly recognize the wrongful nature of past conduct will add to evidence refuting a candidate's good moral character.74 For example, in In re La Tourette, a bar applicant's character and fitness certification was withheld because he failed the state bar examination numerous times, filed suit against the bar examiners, and sued his law school for "its failure of performance."75 He also failed to make adequate efforts to pay $14,000 back child support, disclosed client confidences while working as a law clerk, and filed lawsuits to strike down bar examination requirements and to "restrain the publication" of bar examination results.76 The New Jersey Supreme Court found that the applicant had an "unwillingness to accept any personal responsibility for his difficulties," and engaged in litigation in bad faith.77

A court will also address the possibility that an applicant should not be trusted with money. For instance, in In re Howard, the Illinois Supreme Court discovered that an attorney knowingly failed to "report his Seventh Circuit suspension in a petition to practice pro hac vice" before another jurisdiction, failed to return a $25,000 unearned fee, and accepted fees from, and gave legal advice to, three clients while he was under suspension.78 The Illinois Supreme Court found that his conduct did not conform to the character and fitness requirements and warranted a two-year suspension.79

Other evidence showing lack of good moral character or moral turpitude include: false statements or misrepresentations on bar applications,80 failure to pay income taxes,81 neglecting child support payments,82 a history of "abusive, disruptive, hostile, intimidating, intemperate, irresponsible, threatening or turbulent" behavior,83 cocaine possession,84 and wrongfully withholding money.85 Lack of good moral character includes obtaining an unfair advantage in law school by cheating on an examination,86 committing plagiarism,87 or stealing in law school.88

Dishonesty is unacceptable to the legal profession, but acknowledging past wrongs may illustrate an applicant's rehabilitation. In Florida Board of Bar Examiners re M. C A., an applicant was found to have cheated on a law school exam.89 The applicant entered into an agreement to receive an "F" for the course without admitting any wrongdoing.90 She disclosed the "F" and settlement to the bar authorities, but denied the cheating.91 The Florida Supreme Court found that the applicant met the standard of fitness for disclosing the incident.92 The denial of cheating was not found to be improper and the applicant met the standard of candor.93

Plagiarism is another form of cheating in law school. For example, in Barth v. Kaye, the plaintiff was found guilty and received a one year suspension from Seton Hall School of Law for plagiarism on a take-home exam.94 On appeal, the plagiarism charge was upheld, but the dean decided against the suspension.95 The plaintiff sued the professor for defamation, lost, and began a lengthy legal battle.96 After he graduated, the law school refused to issue his "Certification of Attendance" to bar authorities because he allegedly failed to meet the school's residency requirements.97 He was denied permission to sit for the New York Bar.98

His current lawsuit is against judges, bar committee members, the ABA, and employees of Seton Hall seeking "an amount not less than seven billion dollars."99 All the legal action by the plaintiff was noted by the court and the plaintiff was ordered to show cause why Rule 11 sanctions should not be imposed for frivolous claims and other violations of the Federal Rules of Civil Procedure.100 His denial to sit for the New York bar exam was upheld.101

Other conduct, including sexually harassing other students or school employees, can result in denial of admission to the bar.102 Many courts have also recognized that financial difficulties can create fitness problems. Refusing to meet financial obligations can provide evidence of lack of good moral character, 103 but is distinguished from someone being poor or having legitimate reasons for non-payment of debt.104 Bar examiners may examine an applicant's credit history to further assess fiscal responsibility.105

Not only is one highly offensive act enough for denial of admission to a state bar, but a pattern of minor offensive behavior relating to dishonesty or disrespect can also result in such denial if assessed in totality. A pattern of unethical or neglectful behavior that "falls below the level of professional conduct required" is grounds for discipline106 or denial of admission to the state bar. The applicant has the burden of proof to show he or she possesses good moral character.107 An applicant's refusal to provide the bar authorities with requested information has resulted in denial of permission to sit for the bar examination.108 Again, the practice of law is a privilege, not a right.

Law schools can inform bar authorities of student conduct that might reflect poorly on character and fitness to practice law. Bar authorities are then able to assess the conduct relating to the rest of the application. If law schools do not inform bar authorities of questionable student conduct, the ability to resurrect the image of lawyers as professionals is impaired by the admittance of unethical applicants to the bar.

D. PROBLEMS WITH DISCLOSURE AND BAR QUESTIONS

Additional problems arise regarding the wording of bar application questions. A question that asks if the applicant has any criminal arrests or convictions can lead to interpretation problems. An applicant may have received a conviction that was expunged or sealed and may believe that disclosure is not necessary. Many jurisdictions require disclosure of expunged or sealed convictions.109 If the applicant does not disclose and the bar finds out (in all probability it will), the applicant has a candor problem. This lack of candor reflects adversely on the applicant's honesty, and thus, good moral character.110

However, a court will consider all circumstances surrounding the lack of disclosure.111 For example, in Kentucky Bar Association v. Guidugli, an applicant sought legal advice whether to disclose a sealed plea of endangering the welfare of a minor.112 On advice of counsel, based on a statute saying that a sealed conviction will be treated as if it never had occurred, the applicant did not disclose.113 The statute was repealed after the applicant was admitted to law school, but before he took the bar exam.114 The applicant did not disclose the plea and was admitted to the bar.115 The victim became aware of the respondent's employment with the Juvenile Division of the Denton County Attorney's office and alerted the newspapers.116 Disciplinary charges were brought for false statements on the bar application.117 The Kentucky Supreme Court found that the respondent had acted in good faith in the attempt to ascertain whether to disclose the plea and minimal suspension of 30 days was imposed.118

Good moral character requires candor. Candor is paramount to bar authorities. The entire legal profession is better served by adherence to standards of honesty and trustworthiness. Educatioin and evaluation of students and fitness requirements can begin with law schools.

II. LAW SCHOOL

A. EVALUATION OF CHARACTER AND FITNESS

Because they have the opportunity to observe students for several years, law schools have a better opportunity than bar authorities or courts to screen or evaluate the character and fitness of potential bar applicants.119 Most law school applications include questions regarding the fitness and character of an applicant. Answers to these questions can alert law school administration to potential difficulties for bar admission. "Based on the misconduct and irregularities caseload, it appears that [law school] applicants have the most difficulty with questions about their disciplinary record, criminal history, and racial/ethnic background."120 Furthermore, consider that the law school applicant will later be required to answer these types of questions on the separate application for bar exam registration. Consequently, if the answers on a law school application differ from answers on the bar registration, the applicant could potentially have a candor problem.121

For example, in Missouri, law students must register with the Board of Bar Examiners by November 15th of their first year of law school, unless delayed registration is permitted.122 Missouri law student registration for the bar includes questions inquiring into whether the applicant has "either as an adult or juvenile, been cited, arrested, charged, or convicted for any violation of any law?"123 The application states in bold letters: "Note: Alcohol or drug related offenses are not considered to be minor."124 The application clearly states that alcohol or drug related charges should be disclosed.

In contrast, on law school applications the most common form of a criminal history question asks if the applicant has "ever been charged with, arrested for, convicted of, plead guilty or nolo contendere for a violation of any law."125 This question may be considered unclear as to whether disclosure of minor traffic violations or sealed or expunged records is necessary.

For example, in Missouri, law schools take a somewhat similar approach to character and fitness questions relating to criminal conduct. The University of Missouri-Kansas City School of Law ("UMKC") asks whether the applicant has "ever been convicted of, or pleaded guilty to a crime other than minor traffic violations."126 Similarly, the University of Missouri-Columbia School of Law ("MU") and Washington University School of Law only ask if the applicant has ever been convicted,127 arrested, or charged128 with a criminal offense (other than a minor traffic violation).129 St. Louis University ("SLU") asks, "[h]ave you ever been convicted of a crime other than a minor traffic violation or a juvenile offense?"130

Potential problems arise when applicants ponder the definition of certain terms, such as "minor offense." An applicant may consider an alcohol-related traffic offense as minor if minor sanctions were imposed. The bar registration question, however, clearly states that alcohol-related offenses are not minor and that disclosure is required. Problems arise because law school application questions such as those used by UMKC, MU, Washington University, and SLU do not define the term "minor offense." Thus, the definition is subject to an applicant's interpretation.

Another difficulty arises when the student is already admitted to law school and has answered the law school application questions by the time the bar registration, with more elaborate questions, takes place. The student may have already answered the more lenient law school application question in the negative. The bar application clarifies that an alcohol-related traffic offense is not minor long after the student filled out his or her law school application. If the applicant answers "no" to the law school crime question, but "yes" to the bar's crime question, the applicant might worry that the state bar commission will determine the he or she has misrepresented information. Conversely, even though the bar's question is more stringent and more explicit, the applicant may decide that consistency is important and answer the bar's question in the negative. Applicants will be left to invoke their own interpretations of critical terms relating to character and fitness. Simple explanations can alleviate the uncertainty surrounding application questions.

In contrast to the approach of Missouri law schools, the University of Kansas School of Law ("KU") asks applicants "[h]ave you even been charged with a felony, misdemeanor, or infraction, or traffic violation involving alcohol or a controlled substance?"131 KU's application clearly alerts an applicant that even alcohol or drug related charges need to be disclosed. Other jurisdictions are also including language advising that alcohol related arrests, or DUI specifically, must be disclosed.132

Many law schools not only advise students that alcohol and drug-related offenses are not minor, but also that sealed or expunged offenses must be disclosed.133 A lay person who has not yet acquired a legal education might not understand that those charges which have been sealed or expunged may still require disclosure. For instance, consider an applicant who had an alcohol-related traffic offense years ago that resulted in a small fine or some sort of suspended sentence discharged after successful probation resulting in an expunged or sealed record. It is doubtful that a law school applicant understands the requirements of candor and disclosure without a clear statement by the law school requiring disclosure. An applicant could rely on information provided by an attorney at the time of disposition that expunged offenses are treated as if they never happened.134 Law schools should clearly notify potential students whether sealed or expunged charges should be disclosed on the law school application.

Due to the confusion over ambiguity of admission questions and its misconduct and irregularities caseload, the Law School Admissions Council has proposed "more consistency among law school applications."135 Law schools will be better served if they clearly define on their application forms what constitutes criminal conduct needing disclosure.

An unambiguous statement clearly requiring disclosure of certain specifically defined offenses on a law school application will enable bar authorities to determine, with greater clarity, if a lack of disclosure evidences a lack of candor. Many law schools also inform students of their duty to update and notify the law school of criminal convictions after submission of a law school application.136 Students will benefit from unambiguous disclosure requirements because those students who did not realize that an alcohol-related offense was not minor will now disclose the offense. Such requirements will also more clearly subject those students who do not disclose - even though they realize the offense is not minor -- to misconduct charges. Students and law schools would both benefit by clear and unambiguous questions.

B. ADVISING STUDENTS OF CHARACTER AND FITNESS REQUIREMENTS

Law schools have different views as to their role in considering and assessing character and fitness. One view is that law schools should take an active role in assessing students' fitness for the practice of law.137 Another view is that the law school's role is to simply provide a legal education, without prejudging whether a student is fit for the practice of law, which should be determined by the state bar.138 The University of Missouri-Kansas City School of Law is a law school that adopts the latter view139 in which fitness to practice law is left to be determined by Missouri bar authorities. In the past ten years UMKC has never declined to recommend an applicant for admittance to the Missouri bar.140 However, noting the need to take a more active role, UMKC, beginning with the incoming class of 2000, specifically reviews and discusses every applicant answering "yes" to a prior conviction question on the law school application, regardless of their grade point average and LSAT score, at the admission committee meetings.141

When applying to a law school that views its primary responsibility as providing a legal education, students generally are not denied admission based on past criminal history.142 Character and fitness evaluation of a student is left up to the state bar and the law school merely provides the legal education.143 Although some law schools do not engage in screening per se, they will notify admitted applicants of potential problems.144 For instance, at the University of Colorado School of Law-Boulder, if an applicant answers a character question in such a way that reveals a potential problem, but the problem "is not so serious that we [would] deny admission," the school will advise the student that he or she may have future bar admission problems.145 Another approach is to provide a blanket-type notification to applicants. Rutgers School of Law-Newark provides notice to applicants in the character portion of its application stating that "[a]cceptance to law school does not guarantee certification by the state bar examiners."146

Some law schools do not feel it is their duty to initially advise students of potential bar problems, and do not take an active role by formally addressing these issues with students when they arise in the application process.147 Regardless of whether a law school provides individual notice of potential bar problems, most require the applicant to sign a "disclaimer" or "certification" statement to the effect that all the information provided is true, and many law schools advise the applicant of penalties for dishonesty.148 Students should have a clear understanding that candor is required in the legal profession, beginning with the application to law school. Many law schools state that if a student is unsure of whether disclosure is required, then the student should err on the side of disclosure.149

In light of bar character and fitness requirements, law schools should have a duty to report student misconduct to the bar authorities so they may accurately assess the character and fitness of an applicant.150 Typically, bar authorities inquire at an applicant's law school as to whether a student has been involved in misconduct, and law schools can reply with positive or negative feedback.151 Schools vary in the type of misconduct they report, from not reporting any misconduct,152 to reporting all misconduct.153 Individual professors can report student misconduct to the state bar as well.154 Thus, uniformity is lacking among law schools in the area of participation in character and fitness evaluation.

Many law schools advise students at the earliest practical opportunity of state bar character and fitness requirements in order to encourage students to report questionable behavior on their bar applications. Many law schools discuss bar requirements as early as orientation.155 Many law schools are recognizing the need to emphasize good moral character quickly and specifically. Evidencing this trend, for the first time Saint Louis University Law School has incorporated the topic of good moral character into their orientation program for the academic year 2000-2001.156

Washington University School of Law discusses good moral character at orientation, and in the fall of 2000, the school began distributing a memo to students which emphasizes the importance of ethical issues.157 In the Fall of 1999, Washington University School of Law instituted an activity at orientation to build professional commitment among law students.158 Students are asked to reflect on a lawyer's obligation to clients, judges, fellow lawyers, and society in general.159 Students are given packets of articles and other materials discussing ethical issues to assist in reflecting on these obligations.160

Individual students' thoughts are combined to form a "Statement of Professional Commitment" for that class, and each class member is given this class statement to refer back to throughout his or her professional career.161 For example, the class of 2002 Statement of Professional Commitment begins, "[a]s a representative of my profession, with its inherent privileges and duties, and as a member of my community, I commit to constantly challenging, developing, and refining my sense of ethical responsibility."162 Thus, some law schools, such as Washington University School of Law, are attempting to take an active role in educating students early about professionalism.

Some law schools do not discuss character and fitness requirements at orientation, but instead focus on acclimation to law school.163 For instance, UMKC does not discuss state bar fitness requirements with students until October of their first year of law school.164 This convocation for first year law students is devoted solely to information on and discussion about bar requirements.165 Students need to be presented with concise and direct fitness and candor information early on, so that they can understand the standards of compliance before they complete law student registration for the bar.

C. IMPLEMENTATION AND APPLICATION OF HONOR CODES AS REDUCING THE ABILITY TO CHEAT OR GAIN AN UNFAIR ADVANTAGE

The financial burden students encounter in law school can create risk-taking behavior leading to misconduct. The competitive nature of law school includes competition for high paying jobs with law firms, requiring top grade point averages and class ranks. To combat unethical behavior, many schools implement codes of honor by which students must abide.166

Because the legal profession is self-regulating, lawyers with knowledge of another lawyer's violation of a state's ethics rules have a duty to report the violation to the requisite bar authorities.167 The same applies for many law school honor codes that mandate that students report suspected violations.168 Honor codes focus on "values such as honesty, integrity, individual responsibility, respect, trust, and fairness."169 The effectiveness of honor codes and the ethics committees which enforce them depend on faculty and student faith and commitment to them.

Honor systems vary among law schools, as far as degress of discipline and enforcement bodies. For example, Saint Louis University Law School does not have an honor code per se, but does have a Student Ethics Regulation for matters of law school cheating.170 SLU's Student Ethics Committee is comprised of faculty appointed by the Dean. As with many schools, SLU provides each student with a copy of the regulation, with examples of cheating, in their handbook at orientation. In the past five years, SLU (with 777 students enrolled for the 1999-2000 school year) has had seven potential violations, but only three were referred to the Ethics Committee for investigation.171 SLU also reported four matters (one was not investigated by the Committee) involving plagiarism to the Missouri Board of Bar Examiners.172

A random sampling of law school honor code violations or misconduct reported to bar authorities in the past five years indicates that the University of Alabama reported four,173 the University of Colorado-Boulder reported three,174 Pepperdine University reported approximately one or two per year,175 Rutgers University-Newark reported less than five major violations,176 Saint Louis University reported four,177 Stanford reports approximately two per year,178 Seton Hall reported between five and ten,179 University of Missouri-Kansas City reported between seven and ten,180 Washburn University reported eleven,181 Vanderbilt reported two or three,182 and Washington University reported between six and twelve.183

In contrast, the University of Texas School of Law ("UT") (with approximately 1400 students enrolled 1999-2000) takes a more active role by reporting every violation to the Texas bar. For example, UT had twenty-two violations reported to the Dean of Students for the 1998-1999 academic year.184

Law school honor codes differ from school to school. For example, law schools in Missouri have differing codes of honor. The University of Missouri-- Kansas City School of Law has a very detailed honor code which is authored and administered by students.185 The University of Missouri-Columbia honor code is also authored and administered by law students.186 Washington University School of Law's honor code is administered by elected and appointed students.187 In Pennsylvania, Temple University School of Law has an honor code administered by a committee comprised of four students and three faculty members.188 Student implementation of honor codes could raise enforcement issues because students are disciplining other students.189 Another notable and prevalent problem arises when professors do not have faith in the honor system, or in the students administering the codes. These professors may fail to report a violation as misconduct and instead handle the violation solely through academic sanctions if allowed by the law school.190 Some law schools do not allow faculty to sanction students for suspected cheating without using the honor court,191 but others do allow professors to lower a student's course grade without referring the case to the university's disciplinary committee.192 For example, Vanderbilt University Law school allows "[f]aculty can sanction students without going [through] the honor council through a 'good moral character' degree requirement."193

Similarly, a professor at UMKC is not bound by an honor court decision and can administer a lower or failing grade for cheating based on the professor's academic judgment about the student's grade.194 Some professors interviewed at UMKC stated that they do not completely trust the honor court to administer justice.195 One problem may lie with the turnover in student court members. As students graduate and move on, new members are added to the honor court each year. Because most suspected violations occur around final examinations, an ensuing investigation would take place at the end of the semester, when many third-year law students may be focusing on preparing for the bar exam. Thus, the violation may not be the top priority on a court member's agenda.

Honor systems need clarity, visibility, and consistency to work. Cheating affects not only those who cheat, but also those who must report the violation. Many law schools' honor codes state that if a witness fails to report a violation, the witness is personally subject to sanction.196 Because witnesses are forced to interact with the accused merely by attending school, involvement in an honor code violation for a witness is stressful and unpleasant. Witnesses can also be distracted from their law school routine to provide evidence against fellow students. Codes of honor should be clear, concise, and visible for the benefit of everyone at law school.

Because many law school course grades are based on one final examination, a student can gain an unfair advantag when he or she cheats and continues to write an examination answer after time has expired. For example, in Papachristou v. University of Tennessee, a law student continued writing on his exam after the allotted time had expired.197 The proctor, after calling the expiration of time, stood outside the classroom to count exams.198 Another student had been granted extra time due to a problem with his glasses.199 The first student observed this other student still writing, so he continued to write for approximately ten minutes, even though he knew he was not granted any extra time.200 He was suspended indefinitely.201 Cheating in law school violates a code of honor that protects law students from the competitive environment of law school. Cheating provides evidence that a student lacks good moral character, and safeguards can be put in place to ensure that this type of cheating does not happen.

Some law schools safeguard timed exams by requiring a proctor to remain in the classroom until all students have stopped writing and then collect the exams.202 Other law schools do not require a proctor to remain in the examination room during the exam, but require that proctors re-enter the examination room shortly before the expiration of time to give remaining time warnings.203 Some law schools do not use proctors, but rely instead on the school's honor code to protect the examination time restraints.204 Still other law schools simply do not allow a student to turn in an exam after the expiration of time.205 Enforcing time limits on examinations affords students an equal opportunity to perform well on examinations, and reduces the possibility that some students may gain an unfair advantage over others.

Providing rules or honor codes with clear notification of behavior constituting a violation can provide fairness to the entire law school community. Law school rules and honor codes can provide a basis in ethical expectations, but only if those in charge of implementing honor codes or rules do so with consistency. If rules and honor codes are not consistently enforced, fairness, certainty, and the inherent value of the rules is lost.

D. LAW SCHOOLS HAVE AN OBLIGATION TO TEACH PRACTICAL ETHICS

The legal profession's continuing education should include courses on ethics and professional responsibility.206 The ABA requires accredited law schools to provide education in the responsibilities of the legal profession as well as education covering the Model Rules.207 "Ethics rules are what a lawyer must obey," and "[p]rinciples of professionalism are what a lawyer should live by in conducting his or her affairs."208 A competent professional lawyer has been defined as one who makes honest representations to courts, clients, and opposing counsel; is a conscientious advocate of a client's interest; and generously contributes time and expertise to the community.209 Law students need basic legal skills,210 but they also need basic ethical skills. Without basic ethical skills a lawyer will not be adequately prepared for competent legal practice.211 Evidencing the importance of ethical education, many states require that applicants to the bar pass the Multi-State Professional Responsibility Exam.212

Law schools should have a duty to teach ethics and prepare students to be competent lawyers. Most law schools use professional responsibility courses to introduce law students to ethical codes, but generally these courses are not taught during a student's first year.213 Law schools have an obligation to educate students sufficiently by providing the tools for the student to pass the state bar. Additional ethics education beyond one course is needed to adequately prepare law students to competently practice law.

A 1998 settlement involving a major chemical manufacturer and its lawyer "conspiring to hide evidence of wrongdoing" addressed the need for additional teaching of ethics.214 The court felt a strong enough need for expanded ethical teaching in law school to allocate settlement funds to specifically address this need. The settlement "funnel[ed] $11 million into a fund for Georgia law schools to improve their ethics and professionalism curricula."215 The $11 million "windfall" has enabled Georgia law schools to make ethics a priority.216 Georgia's four law schools have each been awarded $2.5 million "to establish endowed chairs in ethics and professionalism."217

Other attempts have been made to raise awareness of the need for ethical teachings. Professor Eleanor Myers at Temple University School of Law has taken the "pervasive" teaching approach that embraces the idea that ethical dilemmas arise in all areas and should be emphasized by professors in other classes besides professional responsibility.218 Law schools can provide teachings beyond one class in professional responsibility by encouraging law professors to raise and explore ethical issues in basic classes such as property, torts, and contracts. The use of technology to make professional responsibility materials available to students anytime, anywhere can facilitate a broader integration of professionialism training in the curriculum.219

Providing examples of professionalism on a practical level, including the use of role models, is another important tool for the ethical education of law students. Many law students do not realize that they may lack sufficient ethical preparation.220 "A common complaint of young attorneys is that they don't have a mentor."221 Mentoring programs for law students can provide a good source of education regarding professionalism. Mentoring is a way law students can learn by example, while allowing a lawyer the opportunity to give something back to the legal profession.222

Law professors can also provide important mentoring to law students. Besides incorporating professional responsibility into class discussion, law professors can encourage and involve students in community service projects. For instance, requiring students to participate in one of a school's law clinic allows "[s]tudents [to] bring clinic experiences to class for discussion."223 Thus, law professors can provide examples of good moral character by involving students while at the same time helping the community.

Restraints on professors' time, imposed by the law school administration, may make mentoring difficult.224 Other possible factors interfering with a law professor's commitment to serve as a mentor result from the competition to achieve scholarly status.225 Professors who are able or willing to teach students by example in several classes and through clinic participation would give students a three-dimensional perspective on ethical issues, as opposed to the one-dimensional perspective a student may receive from the single required professional responsibility class.

Law schools have the opportunity to provide law students and faculty time necessary for competent education in the ethics of the legal profession. Not only will the law school community benefit from an educational commitment, but the entire legal profession and society will also benefit. Law schools should make an educational commitment to help resurrect the image of the legal profession.

III. SUGGESTED METHODS TO INCREASE LAW SCHOOLS PARTICIPATION IN LEGAL PROFESSIONALISM

Now more than ever, lawyers are being sued for malpractice or disciplined by their state bars.226 Law schools can play a more active role to better prepare ethical lawyers. Law schools should disclose on the application that the state bar has character and fitness requirements, and that any information can be reported to bar authorities. Law schools should clearly define misconduct so that a law student does not inadvertently misrepresent his actions, creating the potential for a finding of dishonesty or lack of candor. The student should have a clear understanding that candor is required both to law schools and bar authorities, beginning with the law school application.

A. LAW SCHOOL APPLICATION

Law schools should set high standards for admission and refrain from admitting candidates solely based on the ability to pay tuition.227 Law schools should seek to admit candidates who will adhere to professional standards throughout their legal careers. By disclosing bar fitness requirements on the law school application, law schools can assess the character and fitness of applicants early. Law schools should explain at the beginning of a student's law school experience that every student is investigated by bar authorities and that dishonesty can reflect adversely on an applicant's admission to the bar.

Law schools should prepare application questions to mirror state bar registration and application questions.228 Although not all students will go on to take the bar exam in the state where they went to law school, many students will take that specific state's bar exam. Without national standarrds for bar exam application questions, law schools should attempt to ascertain the most comprehensive questions for their application. In the very least, the law school should mirror the state bar application questions. By asking the same questions as the bar application the law school may find out more detailed information about an applicant's character. Also, the law school may be able to avert the potential problems arising from multiple interpretations of what is actually the same question, the only difference being the varying characterizations of the information sought. With this approach, students will be asked the same fitness questions when they apply to law school and when they apply to the state bar. Thus, the same answers should be elicited. Law schools should clarify the student should err on the side of disclosure if the student is unsure whether disclosure is required. Law schools should advise students at the earliest practical opportunity - when a student is applying to law school - of character and fitness requirements in order to encourage students to answer application questions with candor. Law schools should also inform and remind a student of his or her obligation to update any application information if circumstances change. This will help to alleviate many discrepancies between law school application answers and bar application answers.

B. PROVIDING TIMELY AND ADEQUATE NOTICE OF FITNESS REQUIREMENTS

Upon entering law school, students are typically unaware of the stringent character and fitness requirements required by state bars. From the outset of law school, schools should provide adequate notice of fitness requirements. Law schools can help resurrect the public's image of lawyers by requiring that law students' conduct and behavior adhere to good moral character standards during law school.

After initial disclosure on the law school application, law schools should discuss ethical standards with students at orientation. Because the first few days of law school are memorable for many, and students are not yet behind in any classes, orientation is the perfect time discuss ethical issues. For example, one effective tool may be to include a cheating dilemma in a mock classroom setting. In this relaxed environment, and with few competing demands on their time, students may be able to devote greater attention to the dilemma than during the course of the school year.

Law schools can provide information in welcome packets at orientation. For example, for the past two years the University of Missouri-Kansas City School of Law has given each incoming student a "survival kit."229 Each kit is lighthearted in nature and contains law student necessities such as highlighters, pens, legal pads, and chocolate. Also included in the "survival kits" is information and freebies from many law school organizations. Without altering the relaxed tenor of the "survival kits," a brief statement of fitness and character requirements could be added.230 By advising that cheating, plagiarism, or any other misconduct can result in the denial of a seat for the state bar exam, this statement can simply and effectively alert students early of fitness requirements, and encourage them to begin thinking about professionalism early.

Students need the ability to make informed decisions. Students need information about what prior acts can potentially result in the inability the practice law, before they expend funds or incur debt in the pursuit of a legal education. Regardless of moral character, it would seem unfair for a student to complete the first year of law school, only to find out that serious past offenses may prevent admittance to the bar. Whether this happens infrequently or often, a student deserves the ability to make an informed decision about whether to attend law school and pay the required tuition, knowing that a denial to sit for the state bar is a possibility. Providing students with a simple, concise, and clear message outlining their ethical obligations will benefit the students, as well as the school, in making informed decisions.

C. ETHICAL STANDARDS

During law school, students should be required to exercise the same ethical standards that they will be required to exercise when they practice law. Law school ethics rules should be provided to students from the onset of their law school experience. Clear notification of the rules, and consequences for their violation, should be provided in unambiguous terms. Law school codes of honor should be ubiquitously posted to remind students of the ethical standards to which they are held, and to serve as a deterrent to misconduct. Individual instances of honor code violations should be consistently disciplined. The posting of disciplinary action, while keeping the violator anonymous, can serve as further notice to students that codes of honor are enforced.

To help students resist the temptation to cheat on exams, law schools should use safeguards protecting the examination environment. Law schools that use generic examination booklets as part of the examination process should make sure that blank booklets are not available before an exam.231 Allowing students to have access to blank booklets only increases the temptation to cheat by preparing test materials prior to the examination. This may also place an added hardship on other students who become aware that a student has brought a prepared examination booklet into an examination. The student, while not party to the violation, gets burdened with the honor code-imposed duty to report it.

Allowing this kind of temptation is unnecessary. Law professors can prepare their own examination booklets, thus safeguarding the examination process. Some professors prepare and bring to exams their own examination booklets, which they have individualized for each semester.232 By doing this, students are unable to prepare any aspect of formal testing material prior to the actual test. An even more dramatic suggestion would be to reduce the competition for grades within law schools, which provides an incentive for unethical behavior.233

Law schools should also strictly enforce time restraints on examinations. Proctors should be employed to call time and to ensure that all students stop writing, and to stay in the classrooms to monitor students throughout the exam. The entire law school community would benefit from these preventive measures. Less opportunity to gain an unfair advantage during exams would lead to decreased violations, decreased reporting and investigation, and, in turn, a greater sense of honor.

In addition to the internal ethical rules of the law school, bar-imposed professional ethical rules should be taught. With a long list of basic legal classes to choose from for first year curriculum, working professional responsibility courses into the first year would be difficult. However, if law professors view ethical issues not as separate legal issues, but as issues inherent in all areas of the law, they have the opportunity to incorporate professional responsibility issues into each basic law class they teach. Professional responsibility courses typically are not offered until the second or third year of law school, but ethical issues are pervasive in the legal profession, regardless of one's year in school. Because students need to start thinking about ethics from the onset of law school, law schools should provide examples and ethical teachings in traditional first year classes.234 Not only will this approach help students begin thinking about the role of ethics before the offering of a professional responsibility course, it may better prepare students to deal with ethical issues arising from all areas of the law.

Furnishing role models may also be an effective method in the teaching of legal ethics. Law schools should encourage professors, as well as other members of the legal community, to participate as mentors for law students. These mentors can provide examples of professionalism. Law students can learn through the practical experience of established lawyers, judges, and professors. Law professors are many times the "student's first exposure to the [legal] profession,"235 and are in a unique position to encourage students to participate in community projects. Role models from the community can give students an opportunity to actively discuss ethical issues one-on-one with a member of the legal profession. The legal profession will benefit: Law students will be able to experience and learn by example the definition of "professional," and practicing lawyers will be able to assure law students that ethical guidelines are not hollow mandates, but strongly adhered-to ideals.

D. REPORTING STUDENT MISCONDUCT TO BAR AUTHORITIES

Most importantly, in light of character and fitness requirements, law schools should have a duty to report student misconduct to the bar authorities. Bar authorities need accurate information from the law schools so that they may assess the character and fitness of an applicant.236 Law school administrators and professors have the ability to assess the ethical behavior of students for approximately three years. Student behavior raising serious ethical questions should be communicated to bar authorities so they can perform a thorough investigation and assessment. With the varying degree of law school participation in reporting student misconduct, some bar authorities may be at a disadvantage compared to others. Student misconduct should be consistently reported to bar authorities by all law schools to whichever state's bar authorities inquire, so that character and fitness committees are better able to ascertain a student's fitness to practice law. Furthermore, law schools should define reporting procedures and students should be notified of any decision to report their conduct to the bar.

CONCLUSION

Character and moral fitness are critical to the legal profession. Upon entering law school students are typically unaware of the stringent character and fitness requirements required by state bars. Law schools should provide adequate notice of fitness requirements from the onset of law school, either during the application process or, at a minimum, during first year orientation. Applicants contemplating law school deserve to know the ethical expectations of the bar so that they can make an informed decision whether to attend law school and become lawyers.

Law schools can help resurrect the public's image of lawyers by: (1) implementing higher admission standards and asking the same questions on their applications that the bar authorities ask during bar exam registration; (2) providing students with timely and adequate notice of state bar fitness requirements; (3) providing clearly defined internal law school ethical standards, and attempting to minimize the opportunity for students to gain an unfair advantage by providing individual class examination booklets and making proctors available to monitor students during exams; (4) incorporating professional responsibility into traditional law school classes, in addition to the required professional responsibility course; and (5) reporting any character and fitness problems or student misconduct to state bar authorities for a thorough investigation.

By implementing these suggestions, law schools will play a more active role in legal professionalism. Law schools can help combat the decline in the public's perception of the morality of lawyers by preparing students to ethically and competently practice law. The committed members of this profession should receive the honor they deserve.

"What do you call three competent and ethical lawyers?

A good start!"