Who the NYS Bar bars from practicing law - New York Daily News

Question 26 of the New York State Bar application is a mouthful. It asks “Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?”

Basically, Question 26 — part of the “character and fitness” requirement to practice law — attempts to ferret out any contact with the criminal legal system even if it came in the form of harassment by police, false charges or youthful indiscretions.

Plenty of reasons to purge Question 26 persist, such as that it screens out applicants of color disproportionately, once when they apply to school or not (because the question causes people with records to think it’s futile even to apply, even though 90% of those applicants are admitted) and again when applying for admission to the bar, after they’ve passed the licensing exam. Not only does the question foreclose redemption, it’s wasteful; students attend and pay for law school with limited chances of becoming a lawyer.

Question 26 violates two separate New York State statutes. The first, Section 296(16) of the New York State Human Rights Law — which prohibits any inquiry about or adverse action on the basis of any adult arrest or criminal accusation that was resolved with a dismissal or sealed.

And Question 26 completely contravenes the Family Court Act, which prohibits divulging information pertaining to juvenile delinquency arrests unless it’s specifically required by statute. It also says that a juvie record may never disqualify a person from receiving a “license granted by public authority.”

The New York State Bar asked the Office of Court Administration — the administrative arm of the court system, overseen by Chief Judge Janet DiFiore — to amend Question 26 and delete the parts that violate the two New York statutes. But it refused, twice — once in 2018 and again in December 2021. That the question is illegal is apparently insufficient to get lawyers and judges to correct it.

The fact that someone interacted with the criminal legal system isn’t predictive of future misconduct. Researchers at the University of Connecticut backtracked the admission applications of more than 1,300 attorneys who had been disciplined. The character variables most correlated with misconduct were student loan debt, delinquent accounts and traffic violations. Demographics connected to getting into trouble were male gender, average grades and graduating from a school ranked in the bottom half of law schools.

Protecting the public from incompetent lawyers is essential. But a character and fitness inquiry doesn’t exist for that purpose. It’s part of the “professional project” of the practice of law. In the 1970s, a sociologist theorized that licensing for certain occupations was really an attempt to “attain market monopoly, social status and autonomy.” Since 85% of attorneys are white, according to advocacy organization Unlock the Bar, the professional project becomes a structural barrier for minorities. The character requirement doesn’t filter the flow into the profession; it’s a levee that keeps power from leaking out.

Considering that rural counties in the state are facing a looming legal crisis because of a shortage of attorneys and staff attrition at the Bronx district attorney’s office is so severe that it’s now causing a backlog of gun cases, the Office of the Court Administration isn’t just being elitist in hanging into the language in Question 26. It’s being derelict in its duty, especially since its reasoning for keeping Question 26 is that it hasn’t changed the question in the past.

It’s also downright selfish. The real reason that they’re denying admission to this group is not that they’re trying to sift out bad lawyers. Rather, they’re arguably picking off some very good ones.

For many law school students, their formal education is their first foray into the legal system. Any applicant with a criminal record comes to class with a more intimate, less idealized lesson on courtroom realities already completed. It’s an undisputed advantage.

Dieter Tejada, founding president of the National Justice Impact Bar Association, a professional organization for lawyers who have lived experience with the system they now navigate for others, says the same. Tejada worked with public defenders’ offices in New York and Connecticut while attending Vanderbilt Law School and reports that his supervisors commented often on how his lived experience enhanced his performance in representing clients.

source: https://www.nydailynews.com/opinion/ny-oped-ny-bar-law-20220328-gxepc6u4zfh5fexf2uwg435pem-story.html

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