May 2014 - What Is “Good Moral Character”?
by Heather Porter Condon
The California Bar admissions process is truly an experience that no applicant is likely to forget. To qualify for admission, an applicant must meet extensive pre-legal and legal education requirements and pass both the Multistate Professional Responsibility Examination and the California Bar Exam. Additionally, to qualify for admission, an applicant must demonstrate that he or she possesses “good moral character.” Cal. Bus. & Prof. Code §§ 6060(b) (West 2003) and 6068(a)(2) (West 2004); Rules of the State Bar of Cal., tit. 4, Admissions and Educational Stds., rule 4.40(A) (2008).
The applicant establishes “good moral character” through his or her Moral Character Determination Application. Once an Application is submitted, the Committee of Bar Examiners through its Subcommittee on Moral Character commences an investigation into the applicant’s background, with a particular focus on his or her “good moral character.”
Good moral character is “defined as the absence of conduct imbued with elements of moral turpitude . . . [and] includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process.” In re Garcia, 58 Cal. 4th 440, 465 (2014) (internal quotations and citations omitted); see In re Glass, 58 Cal. 4th 500, 520 (2014). The fundamental question is “whether the applicant is fit to practice law, taking into account whether the applicant has engaged in conduct that reflects moral turpitude or has committed misconduct that bears particularly upon the applicant’s fitness to practice law.” Garcia, 58 Cal. 4th at 465 (internal citations omitted). While an applicant’s “[i]nvolvement in activity that constitutes an act of misconduct or an act of moral turpitude does not necessarily preclude an applicant from admission to practice law in California; ... an applicant who has committed such acts must demonstrate rehabilitation prior to certification for admission.” State Bar of California, Factors Regarding Moral Character Determination, http://admissions.calbar.ca.gov/MoralCharacter/Factors.aspx.
The requirement of establishing good moral character is discussed at length in the following two opinions recently released by the California Supreme Court. In Garcia, the court primarily considered whether undocumented status should preclude admission. The Glass court wrestled with whether an applicant with a history of dishonesty showed rehabilitation. Faced with the same standard and related burden, each case turns squarely upon its distinct facts, with opposite outcomes for the two applicants.
Initially brought to California as an infant by his parents, Garcia resided in California for eight years before returning to his native Mexico. Garcia, 58 Cal. 4th at 447. In 1994, Garcia, then seventeen years old, reentered the United States. Id. He has resided in California ever since. Id. at 448. During this time, Garcia graduated from high school, attended college, received a law degree, and passed the California Bar Examination. Id.
Garcia then applied to the California State Bar, which in part required that he sufficiently show that he possessed good moral character. See id. As part of that process, and specifically to make that showing, Garcia completed the Moral Character Determination Application. Id. In response to certain questions regarding his residency status, Garcia acknowledged that he was not a United States citizen and, further, denoted his immigration status as “pending.” Id.
On submission of Garcia’s name to the Supreme Court for admission consideration, the Committee of Bar Examiners disclosed Garcia’s immigration status and, further, noted that they were “not aware of any other jurisdiction that has ever knowingly admitted an undocumented alien to the practice of law.” Id. at 449 (internal quotations omitted). In response, this court directed the committee to submit briefing to show cause justifying its request for admission. Id. at 450. Preliminary and supplementary briefing along with oral argument followed. Id. at 450-51.
The primary focus of Garcia is whether, as a class, undocumented immigrants can lawfully be admitted to the California State Bar. While federal law
generally restricts an undocumented immigrant’s eligibility to obtain a professional license[,] ... [it] also contains a subsection expressly authorizing a state to render an undocumented immigrant eligible to obtain such a professional license through the enactment of a state law meeting specified requirements.
Id. at 447; 8 U.S.C. § 1621 (1998). Intended to satisfy those requirements, the California Legislature enacted section 6064 of the California Business and Professions Code, which became effective on January 1, 2014. Garcia, 58 Cal. 4th at 447. In light of California’s enactment of Section 6064, the California Supreme Court opined that, as a class, undocumented immigrants were not precluded by federal or state law from admission to the California State Bar. See id. at 447, 451-65.
On reaching this conclusion, the court then turned its inquiry to whether there was any reason, specific as to Garcia, that admission should be denied. As previously explained, this inquiry boils down to “whether the applicant is fit to practice law. ...” Id. at 465 (internal citations omitted). In making this determination, the court initially focused on Garcia’s academic record, his work ethic, and his contributions to the community. See id. at 465-66. The court recognized that Garcia “ha[d] been a diligent and trusted worker and ha[d] made significant contributions to his community.” Id. at 466. The court also noted that Garcia had never been convicted of a criminal offense. Id. Additionally, the court recognized that during the State Bar’s investigation, not a single individual raised a concern with respect to Garcia’s moral fitness. Id. Instead, the committee’s investigation found quite the opposite: “Numerous individuals who worked with, taught, and participated in community activities with Garcia over many years had nothing but the highest praise for the applicant.” Id.
This said, the committee’s investigation did disclose two issues that posed potential obstacles to Garcia’s admission. Id. at 449 n.5, 466. First, at or around the age of seventeen, Garcia filled out an employment form using a fabricated alien registration number and falsely attesting to his residency status. Id. at 449 n.5. Although Garcia initially failed to turn over the document (on the advice of counsel), he did so later. Id. Further, in response to the committee’s questions regarding this matter, Garcia acknowledged and further offered a reasonable explanation for his misconduct. Id. Based on the circumstances, the committee “believed that Garcia was sincerely remorseful for his past misconduct and that his delay in disclosing the document was a product of his reliance upon the erroneous advice of counsel, and concluded that under the circumstances the conduct did not reflect moral turpitude.” Id.
Garcia’s second act of misconduct stemmed from a citation he received for driving without a license or insurance. Id. With respect to this incident, the committee found that Garcia paid the fine, stopped driving, and lawfully obtained an Oregon State license, for which proof of lawful residency was not required. Id. Based on these findings, the committee concluded that Garcia obtained the driver’s license in good faith. Id.
Agreeing with the committee’s determinations, the court “concluded that, taking into account his entire life history and conduct, Garcia met his burden of demonstrating that he possesses the requisite good moral character to qualify for a law license” and, thus, granted the committee’s motion to admit Garcia to the California State Bar. Id. at 466-67.
Prior to seeking admission to the New York and California State Bars, Glass worked as a journalist for The New Republic and various other publications. See Glass, 58 Cal. 4th at 504. During Glass’s time as a journalist, it was later discovered that a number of his articles, as well as the reporter’s notes and supporting materials upon which the articles were based, were indeed fabricated, in whole or in part. Id. at 504-08. During at least part of this time, Glass was an evening law student at Georgetown University. Id. at 504. Once exposed, Glass neither admitted to nor curbed his misconduct; instead, Glass intensified his efforts to hide his deceit and lobbied to maintain his position at The New Republic, vehemently challenging those who expressed concern. Id. at 504, 508. Glass thereafter was fired from his position at The New Republic. Id. at 512. As a result, Glass testified that he became “distraught, suicidal, and unable to focus, almost immediately entering therapy[,]” but nonetheless hired counsel to cooperate with The New Republic’s investigation. Id.
In 2002, after passing the New York Bar Exam, Glass applied to become a member of the New York State Bar, but later withdrew his application upon being informed that his Moral Character Application would be denied. Id. at 504, 511. It was found that Glass not only failed to supply a complete list of the fabricated articles (disclosing a mere twenty of the more than forty articles), but moreover, exaggerated his cooperation with the sources that published his work. Id. at 504-05, 519.
In 2006, Glass took and passed the California Bar Exam; he again submitted a Moral Character Determination Application. Id. at 504, 517-18. The Committee of Bar Examiners initially denied his Application. Id. at 518. This time, while Glass reviewed and submitted a complete list of his published fabrications, thus revealing those that he had failed to disclose before the New York Bar, he was not forthright in acknowledging the defects that plagued his New York State Bar Application. Id. at 504-05, 519.
On Glass’s request, a hearing was conducted before the State Bar Court. Id. at 518. The State Bar found for Glass, specifically concluding that Glass had established good moral character. Id. On review by the State Bar Court Review Department, a majority of the three-judge panel, relying heavily upon Glass’s character witnesses, agreed. See id. at 518-19, 525.
On an independent review, the California Supreme Court recognized the heavy burden that Glass faced in overcoming his past indiscretions and, moreover, demonstrating rehabilitation:
When the applicant has presented evidence that is sufficient to establish a prima facie case of his or her good moral character, the burden shifts to the State Bar to rebut that case with evidence of poor moral character. Once the State Bar has presented evidence of moral turpitude, the burden falls squarely upon the applicant to demonstrate his [or her] rehabilitation.
Id. at 520 (internal citations and quotations omitted). The court further recognized the magnitude of Glass’s burden:
Of particular significance for the present case is the principle that the more serious the misconduct and the bad character evidence, the stronger the applicant’s showing of rehabilitation must be. ... Cases authorizing admission on the basis of rehabilitation commonly involve a substantial period of exemplary conduct following the applicant’s misdeeds.
Id. (internal citations and quotations omitted).
As an initial matter, this court recognized that Glass’s misconduct “exhibited moral turpitude sustained over an extended period. ... [F]or two years he engaged in a multi-layered, complex, and harmful course of public dishonesty.” Id. at 522 (internal citations and quotations omitted). The court found that Glass’s “misconduct bore directly on his character in matters that are critical to the practice of law” and, moreover, that Glass continued to engage in such misconduct while in pursuit of a law degree and license to practice law, “when the importance of honesty should have gained new meaning and significance for him.” Id. at 522-23.
The court further emphasized that, once exposed,
Glass’s response was to protect himself, not to freely and fully admit and catalogue all of his fabrications. He never fully cooperated with his employers to clarify the record, failed to carefully review the editorials they published to describe the fabrications to their readership, made misrepresentations to The New Republic regarding some of his work during the period he purported to be cooperating with that magazine, and indeed some of his fabrications did not come to light until the California State Bar proceedings.
Moreover, the court noted that Glass’s dishonesty followed him up to and including these very proceedings, finding it “particularly disturbing that at the hearing Glass persisted in claiming that he had made a good faith effort to work with the magazines that published his works.” Id. Instead,
despite his many statements concerning taking personal responsibility, and contrary to what he suggested in his New York Bar application, it was not until the California Bar proceedings that he shouldered the responsibility of reviewing the editorials his employers published disclosing his fabrications, thus failing to ensure that all his very public lies had been corrected publically and in a timely manner.
Id. at 524. The court’s observations are a reminder to applicants that recent dishonesty and dishonesty in reference to character investigations can be quite damaging.
The court additionally recognized the self-serving nature of Glass’s steps to rehabilitation, “[M]uch of Glass’s energy ... seems to have been directed at advancing his own career and financial and emotional well-being.” Id. at 524. These so-called “steps to rehabilitation” included letters directed to the subjects of his articles, a self-exposing (yet, profitable) novel, an appearance on 60 Minutes (in connection with his novel’s publication), and pro bono legal work. Id. at 525-26. The court also found Glass’s course of psychotherapy lacking: “The record of Glass’s therapy does not represent truly exemplary conduct in the sense of returning something to the community.” Id. at 526 (internal citations and quotations omitted).
Finally, the court observed the Review Department’s misplaced reliance on Glass’s character witnesses, noting that “the testimony of character witnesses will not suffice by itself to establish rehabilitation.” Id. at 522 (internal citations omitted). Even more so, the court was further concerned with the lack of seriousness the witnesses attributed to Glass’s misconduct. Id.
The court concluded by observing, “Given our duty to protect the public and maintain the integrity and high standards of the profession ... our focus is on the applicant’s moral fitness to practice law.” Id. at 526 (internal citations omitted). In this case, the court held that Glass failed to meet his burden and, thus, rejected the State Bar Court’s recommendation to grant Glass admission. Id.
These contrasting decisions illustrate some important concepts applicants must bear in mind. While most applicants’ good moral character can be established with ease, the above two opinions demonstrate that this is not always the case. Faced with the same standard, each applicant’s ability or inability to meet his burden depended heavily on the facts. Moreover, as recognized in each of these cases, this burden is not trivial. Instead, each applicant’s ability to establish good moral character was the deciding factor of whether or not admission was ultimately granted—and one that no applicant should take lightly.
Heather Porter Condon is a freelance attorney with the Montage Legal Group as well as a member of the OCBA Professionalism and Ethics Committee. She can be reached at firstname.lastname@example.org.