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January|February 2006
Lawyers in Their Habitats By Bryant Garth
Sheep in Wolves' Clothing By Rebecca Ulam Weiner
Gone but Not Forgotten By Kurt L. Schmoke

Gone but Not Forgotten

Bar examiners cheat would-be lawyers of a second chance by asking them to disclose expunged convictions.

By Kurt L. Schmoke

TWO LAW STUDENTS RECENTLY CAME TO SEE ME about a problem that threatened to keep them from becoming lawyers. When they were seniors in college, they participated in a protest demonstration off campus. Both were arrested and charged with disorderly conduct, and one was charged with illegal possession of a street sign. The students went to trial on these misdemeanors, and though the judge found them guilty, he placed them on probation, subject to certain conditions. When those conditions were satisfied, the judge dismissed the charges and ordered the arrests and convictions "expunged," meaning essentially that they were erased from the students' publicly available records.

When the students applied to Howard University School of Law in 2000, the application form contained the following question: "Have you been arrested for a felony or convicted of any crime (other than traffic violations) or sentenced to a corrective or penal institution?" Without hesitation, both students answered, "No," because they understood from the judge that they should treat their prior arrests and convictions as having never happened. The students were admitted to the law school and thought nothing more about the question until, four years later, they made a startling discovery.

They had graduated from law school and were applying to take their state's bar examination as the first of several steps for admission to the bar. They were reviewing the steps when they came across the National Conference of Bar Examiners' model Character and Fitness Application, a form that they and applicants to the bar in most states were required to complete. Like the application to Howard law school, it asked about prior convictions, but it also instructed applicants to include "matters that have been expunged." However the students responded, they feared that they could put their legal careers in jeopardy. In my capacity as dean of Howard University School of Law, the students asked me what they should do.

RECALL FOR A MOMENT that during the presidential campaign of 2000, then-Governor George W. Bush of Texas was asked about excessive drinking, illegal-drug use, and other misdeeds that he might have committed as a young man. His response, in my view, was quite appropriate. He simply said that, when he was "young and irresponsible," he was "young and irresponsible." He did not elaborate. His point was that many of us do things in our youth that we regret, and that all of us should be allowed to grow and mature and not be defined forever by the excesses of our younger days. Many voters in the country seemed to accept Governor Bush's view on that matter, even if they didn't agree with it, because they twice elected him president of the United States.

Lots of judges and legislators also seem to accept that the law should afford young people a second chance if they have committed certain minor crimes. All states, the District of Columbia, and the federal government provide for some form of expungement, a response to the rising concern in the 1960s that a criminal record would be held against a young person, and that the stigma could lead him to commit further crimes. Though standards vary among different jurisdictions, the practical effect of expungement is usually to allow a person to say legally that he was never arrested, charged, convicted, or sentenced in connection with the crime involved in an expunged case. By expunging a person's public record, a court essentially recognizes that, while he did something "young and irresponsible," there is enough good about his character to justify preventing that youthful act from limiting his prospects for a bright future. Among those who typically benefit from expungement are people in their late teens or early 20s who were arrested for underage drinking, disorderly conduct while participating in protest demonstrations, or certain other nonviolent and minor crimes.

Despite the support that courts and legislatures have shown for expungement, the National Conference of Bar Examiners, or NCBE, seems to have adopted a contrary position. Since at least 2001, the bar examiners' model Character and Fitness Application has read, "Have you ever been cited, arrested, charged or convicted for any violation of any law other than as a juvenile? (Omit traffic violation.) Note: This should include matters that have been expunged or subject to a diversion program." For years the application asked about prior convictions but not about cases that had been expunged. Because the NCBE amended the application, many law schools changed their applications in the same way, because they wanted their students to meet the standards generally required of bar applicants. For example, the application to George Washington University Law School in Washington, D.C., now asks, "Have you ever been charged with or convicted of a crime or a juvenile offense, or are criminal charges pending? . . . You should err on the side of full disclosureif you have any doubt about whether disclosure is required. Include matters that have been expunged from any kind of record about you."

These questions put an applicant for admission to the bar or law school in an untenable position. They ask about events that could disqualify him from being admitted to practice law but that a judge has ruled can virtually never be disclosed. An applicant can answer the questions literally and risk losing the chance to become a lawyer. Or he can obey the order of a court and refuse to disclose the expunged matter and still lose the chance at a legal career: If the matter somehow comes to light, the bar examiners who review his files can say he lacked candor. Even if the matter comes to light after he is admitted to the bar, the applicant can be disciplined for misrepresenting information on his bar application

For decades the bar and law schools have been well served by asking candidates for admission about prior criminal convictions. The information has helped bar examiners and admissions officers guard the legal profession against dishonest or otherwise unscrupulous members. Yet that information is apparently no longer enough for the NCBE. According to NCBE President Erica Moeser, the organization changed its model application, which state bar examiners are free to adopt or reject, because state standards for expungement vary so widely. Two bar applicants from different states may commit the same crime, for example, but only one applicant may get a criminal record, because the requirements for expungement are stricter in his home state. Moeser says it would be unfair to consider only that applicant's illegal behavior. When evaluating character, she explained, "You want to be sure that behavior is not obscured by process." She also pointed out that bar examiners take into account extenuating circumstances, and that an applicant whose conviction had been expunged would likely be admitted to the bar.

But the NCBE's position promotes the exclusion of potential bar members, even though the organization justifies it on grounds of fairness. The bar examiners ignore the ethical, legal, and psychological dilemma that the question presents for students who experience the humiliation of arrest, the relief of forgiveness, and then the frustration of, in effect, forgiveness withdrawn. Although no statistics are available, what the NCBE espouses would, in at least some cases, prevent deserving candidates from becoming lawyers and would undermine the explicit orders of a court of law. Most important, there is no evidence that people who have become lawyers after having their criminal records expunged are diminishing the stature of the legal profession or violating the code of professional responsibility.

Another issue that must be raised is race. I mention this with reluctance, ecause the troubling questions regarding the bar examiners' application affect all applicants, regardless of color. However, as the dean of a law school with a predominantly African-American student body, I am sensitive to policies that may have a profoundly adverse impact on young people of color. As a former state and federal prosecutor, I am aware of the disturbing history of law enforcement practices that have resulted in dissimilar treatment of individuals of different races who violate similar laws. This problem is evident most glaringly in the enforcement of laws relating to illegal drugs. Data show that young men of color are far more likely to be charged and arrested for drug law violations than are their white counterparts, a difference that cannot be explained by disparities in drug use.

Based solely on historical practices, then, the likelihood of a negative encounter with the criminal justice system is far greater for young people of color than for other youths. As a result, the decision of the NCBE and of certain law schools to inquire into expunged cases is likely to have a disproportionately harmful effect on people of color. Leaders of the bar should recognize this incongruity and return to a policy that has served the profession well in the past.

As for the two law students who came to see me, I advised them to disclose the expunged matters on the character and fitness application and to let me fight the battle against the NCBE. They were at the beginning of their careers and essentially powerless to resist what the bar required of them. I am pleased to note that they passed the bar examination and have been admitted to practice law in their state.

Kurt L. Schmoke is the dean of Howard University School of Law and a former mayor of Baltimore.

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