May 25, 2017

Fitness to Practice Law: What Is It Good For; Absolutely Anything?

(Grand Ballroom A/B/C, 4th Floor)

Friday, June 2 
(9:00am - 10:20am)

Moderator:  Donald Lundberg
Panelists:    James C. Coyle, Douglas Ende, Leslie C. Levin, Sophie Martin

Fitness to practice law is a consideration when screening applicants for admission to the bar.  But it is also a consideration in meting out lawyer discipline.  Criminal convictions are the basis for discipline only when they reflect adversely on honesty, trustworthiness or “fitness as a lawyer in other respects.”  Model Rule 8.4(b). Lawyers have a duty to report serious misconduct of other lawyers if it raises a substantial question as to the lawyer’s fitness as a lawyer.  What is dishonest or untrustworthy might be readily ascertainable.  But, what constitutes a lapse of fitness as a lawyer?  Is it any clearer than the “appearance of impropriety,” which was rejected in the migration from the Code to the Rules as being too vague to give fair notice?

This panel will inquire into whether the concept of fitness to practice law screens lawyers into or out of the profession for conduct that would not be captured by other categories.  It will explore why bar applicants are turned away for that reason; and why lawyers are disciplined for conduct not directly related to the practice of law, yet is determined to reflect adversely on fitness to practice. The panel will consider how often lawyer conduct is found to have a nexus with fitness to practice law that is not also dishonest or untrustworthy; or how often bar applicants are turned down for lack of fitness, when the conduct does not also demonstrate lack of good character.  Finally, the panel will probe the constitutionality of a “we know it when we see it” standard of conduct imposed by the state for entry into or retention in the legal profession.

Materials 

  1. The Folly of Expecting Evil: Reconsidering the Bar’s Character and Fitness Requirement
  2. New York’s Catch-All Rule: Is It Needed? Part 1
  3. New York’s Catch-All Rule: Is It Needed? Part 2
  4. Proposed Rule Changes - Conditional Admission (12-2016)
  5. Character and Fitness Investigation (Effective in 2014)
  6. May 2017 Ethics Curbstone

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