American Legal History
-- AndrewMcCormick - 13 Nov 2009

Although I'm sure it needs no announcing, this project is still a work in progress as of 1/5

This genesis of my curiosity about character and fitness standards was an online article discussing whether excessive student debt could be a disqualifying character and fitness criteria. As colossal student debt loads are a recent phenomenon, character and fitness must be an evolving standard; further, as it is a mutable concept, judges and bar associations have room for significant interpretation(CITATION). I suspect a(n) historical investigation of character and fitness examination would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness, as professional standards, have shaped the legal profession in America, and whether they have historically been used as tools of social policy through exclusion.

Realistically, I did not expect to find ‘smoking gun’ evidence of social policy making through character and fitness examination; the mere fact that historical bar exams were orally administered would likely prevent it in early cases, and in most cases I expect discrimination by the bar would be cloaked. I propose that an interesting question exists of whether bar exam character and fitness standards tended to be more or less progressive than widely held norms of the time regarding race, religion, political affiliation, and potentially homosexuality. I find this question interesting because I can readily imagine reasonable arguments supporting both positions, and scholarship in the field is thin.

Character and Fitness Today: a ubiquitous requirement.

Every state bar currently requires some form of character and fitness examination, as do most other countries (Rhode citing The Bar Examiner’s Handbook, S. Duhl 2d ed. 1980) - apparently unavailable online, in need of scanning).

Rhode argues that, throughout its history and into the present day, character and fitness examinations are cultural showpieces, that they have never barred significant numbers of applicants, and rather have been a tool for delay and harassment and a “ritual” undermining the “ideals it seeks to sustain” (Rhode, 490-491).

Early American Lawyers and the Rise of Character as a Professional Credential.

In early America, lawyers were unwelcome. The practice was viewed as unnecessary and even evil. The "Body of Liberties" of Massachusets Bay, 1641. Available here: BodyofLiberties, fascinatingly prohibits legal representatives from taking fees in section #26. Similarly, the Fundamental Constitutions of the Carolinas (1669), Carolinas, article 70 proclaims lawyering for money as "base and vile".

Friedman argues that "As soon as... society posed problems ofor which lawyers had an answer..., layers bagan to thrive, despite the hostility.", here, but it is understandable that such animosity could have led to developing character and fitness standards. Alternatively, as the profession grew an wish to create entry barriers would be well served by character and fitness standards and professional requirement. A third explanation is that between 1800 and 1900 the class of men composing the profession shifted from the "elite" to middle class and business backgrounds (Friedman, linked above).

The Uses of "Character and Fitness"

According TroublingRise "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character." (Comment on notes not played?)

Schware v. Board, 353 U.S. 232 (communism) In re Application of Stewart, 860 N.E.2d 729 (debt)

A Note on Gender

Exclusion from the Profession Outside the Realm of "Character and Fitness"

Moral Character as a Professional Credential Deborah L. Rhode The Yale Law Journal, Vol. 94, No. 3 (Jan., 1985), pp. 491-603 available here: MoralCharacterCredential

The Troubling Rise of the Legal Profession's Good Moral Character. St. John's Law Review, 2008 by Keith Swisher available here: TroublingRise "in the entire nineteenth century, there were virtually no reported instances in which applicants were banned for their character."

Confronting Racists at the Bar: Matthew Hale, Moral Character, and Regulating the Marketplace. Jason O. Billy available here: RacistsattheBar

Alexis de Tocqueville, On Lawyers and Judges. Available here: Tocqueville, attaching a certain importance and conservatism to American lawyers. Interestingly, points out that "they entertain the same repugnance of the actions of the multitude [as the aristocracy]"

George Sharswood, An Essay on Professional Ethics (1884) (Used by Rhode), EssayonProfessionalEthics "the things we hold dearest on earth... we confide to the integrity of our legal counsellors and advocates. Their character must be not only without a stain, but without suspicion"

American Legal History. Hall, Wiecek, Finkelman. Oxford Univ. Press, 1006.

Legal Ethics, Fifth Ed. Rhode, Luban. Foundation Press, 2009.

Sidebar of Related Projects:

The professionalization of legal practice and the varying element of public service in law

Frontier American Lawyers and Legal Practice

The rise of the law firm in America

Distrust and Animosity toward lawyers in early America (and perhaps related topics in Quaker tradition)

Women in the American Legal Profession

Minorities in the American Legal Profession



Webs Webs

r5 - 06 Jan 2010 - 00:08:55 - AndrewMcCormick
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