You are about to graduate. You have a lot on your mind: graduation, potentially moving to a new state, starting a new job, not to mention the bar exam.
What about that character and fitness application?
Every state and the territories have some version of a character and fitness application or report. It’s essentially a starting point for a deep background report on you. You’ll be required to complete a lengthy form and submit fingerprint data and proof of identity.
Some states investigate your background before letting you sit for the bar exam, but most don’t. There’s often a fee separate from the fee to take the exam to cover the costs of processing the character and fitness application.
Your application will be submitted to your state’s committee on character and fitness. That committee is usually operated by either the state supreme court or the state bar organization.
What kind of questions are on the application? Let’s use Arizona as an example. The application, which is online, asks for personal identifying information and requires you to upload one of several forms of identification. You must list every permanent or temporary residence for the last 10 years or since age 21, whichever is shorter.
There are questions to determine if you’re a graduate of an ABA-approved law school, whether you’re licensed in any other state, and whether you’ve been in the military. If so, you’ll need to upload a copy of your DD214.
These are followed by a section on your academic history at all the colleges you attended, whether you obtained a degree or not. You’ll need to identify any state where you’ve applied for admission, even if you’ve withdrawn the application.
Your employment history for the last 10 years comes next. This includes the names and contact information of your supervisor. And you must explain any gaps. For example, perhaps you were in school or studying for the bar.
The application requires full disclosure of your involvement in any civil matters within the past 10 years and all criminal matters in which you’ve ever been involved. You’ll be asked to provide copies of pleadings and police reports and a statement regarding each matter. The criminal law question is direct and unambiguous:
Have you either as an adult or a juvenile, ever been served with a criminal summons, questioned, arrested, taken into custody, indicted, charged with, tried for, pleaded guilty to or been convicted of, or ever been the subject of an investigation concerning the violation of any law, statute, ordinance, rule, regulation, or cannon? (In answering the question, include all incidents, no matter how trivial or minor the infraction or whether guilty or not, whether expunged or not, whether you believe or were advised that you need not disclose any such instance.)
Next, you’re asked about your traffic history. Again, similar details regarding the violation, the court, and the state are required. You’ll also have to list all states where you’ve held a driver’s license.
Your financial history is included, with questions about bankruptcies, defaults, and debt discharge. A credit check will be run and may be rerun if your application has been pending for an extended period.
The application seeks references from persons you’ve known for at least five years who aren’t related to you. And you’ll need three references from lawyers, law professors, judges, or clients of a firm at which you clerked. You’ll provide their contact information, and the character and fitness committee staff will send the reference forms. You won’t need reference letters.
Finally, you’re asked if there’s anything else you’d like to disclose that may affect your ability to practice law. You’ll sign your application under oath and a release covering any information the committee staff may seek.
The application is the start of the process. It may also be the most important document you’ll ever complete.
That’s not an exaggeration. Accurate, complete, and full disclosure will benefit you, even if some of your disclosures are embarrassing or painful.
When you read a question on the application, think about what the committee is seeking and what information would be relevant to determining if you have the current character and fitness to become a member of the bar.
Don’t make the mistake of determining relevance yourself. Think like a committee member, and always err on the side of disclosure.
While that admonition is informative, you may still have questions. For example, perhaps between the ages of 11 and 18, you lived in a series of foster homes. You don’t remember many, if any, of the addresses.
But you probably remember the name of the government agency that handled foster care. That answer will at least get you started and might be enough to satisfy the committee. For the European or Asian backpacker, a list of countries and cities would be a good start, and you might upload the pages of your passport that document your travel.
With respect to academic history, you may recall being counseled by a dean regarding your conduct in a student dorm during college. But you may not be aware that a report was written and put in your file. It’s better to disclose that discussion with the dean than for the committee to learn about it from the college and have to ask why you didn’t disclose it.
The committee is likely to receive your college application and law school application. The disclosures should match up. If you remember something you didn’t disclose to the law school, for example, make a disclosure to update your file. Most schools are understanding and forgiving about late disclosures.
When describing those instances that you wish had never happened, be factually accurate. The committee members are adept at recognizing attempts to minimize, rationalize, or intellectualize. Try writing the description without using adjectives or adverbs. That’s a good start.
If you’re stuck on the employment section because your former employer went out of business and you can’t find anyone who worked with you, just say so on the application. Committee staff will follow up with you if they have questions. If you worked for the winner of the “Worst Boss Ever” award, you still need to list that person. Chances are the person doesn’t remember you or has softened in the years since.
If you have military service, the committee knows that even though you can remember your commanding officer’s name, that person has probably been transferred or left the service. If you list the various duty stations, that should be sufficient. The Arizona application does ask about Article 15 punishments, so don’t fail to disclose any you might have.
The criminal question quoted above causes applicants nondisclosure problems. You may not remember when you shoplifted a bottle of makeup when you were 13. Or you remember the shoplift but don’t remember the police being involved.
Youthful incidents are best reviewed with your parents. Their memory may be helpful. You should also check for police and court records in each place you lived. It’s possible an action was filed against you but not served, so you’re unaware. The committee will find every conviction you have, likely all the arrests, too, because you’ll be submitting a fingerprint card that will be checked against state and federal databases.
The other problem that arises relates to juvenile and expunged or cleared cases. Too many times, an applicant tells the committee that their family lawyer “friend” told them they didn’t have to report an event.
A couple of points about this answer: First, the committee will want to know the name of the lawyer who gave that advice so they can check with that person. Second, the lawyer and you didn’t read the question very carefully.
You now look like you’re just not being honest in your communication with the committee. And if what’s at issue is a shoplift of a small item at age 13, the disclosure of that isn’t likely to keep you out of the bar.
Let’s say you disclose the conviction, but it was six years ago, and you couldn’t find the arrest records. Try harder. The committee could find the records you couldn’t or didn’t bother to locate and quiz you about your version of the arrest instead of the reports of the three officers who assisted the arrest. Did you also forget that there was a dashcam video?
In drunk driving cases, you may have told the police officer you hadn’t been drinking at all. But your blood alcohol test then came back at 1.5 times the legal limit. When the committee questions you about the arrest, you’ll be asked why you lied to the officer. If you panicked, were scared, or were too drunk to think straight, just admit it.
In most states, committee staff can provide some assistance in answering questions. They’re usually overworked, and emailing is generally better than calling. You don’t want to be the applicant who did call, was impatient, and used profanity to describe your frustration with the process. That alone can cause you problems with admission.
This bears repeating: start the application process early. Don’t wait to file your application until you have the bar exam results or that job offer. In Arizona, it can take three to four months or longer to process an application where no hearing is needed.
The purpose of a character and fitness process is to protect the public.
There are cases of individuals with convictions for serious crimes who spent years in prison but were rehabilitated and admitted to the bar. That’s probably not you.
But most of us have made mistakes. The best advice is to be honest in answering all questions and contrite and remorseful about your mistakes.
