American Legal History
-- AndrewMcCormick - 13 Nov 2009

Although I'm sure it needs no announcing, this project is still a work in progress

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. The professional expectations of lawyers and popular views of lawyers character as a class have, I suspect, changed over time. I suspect a(n) historical investigation of character and fitness as professional concepts would contribute to understanding the legal profession in America. To state my question broadly, I wish to explore how character and fitness of lawyers, as professional and social standards, have shaped the legal profession in America. I will begin with comments on the legal profession, such as de Tocqueville, and then explore documents within the legal profession, such as bar examiners' guides and caselaw.

A related question is whether character and fitness examination as a portion of bar admission has been used selectively and as a barrier to entry. Realistically, I do 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. I propose that an interesting question exists of whether bar exam character and fitness standards are a serious hurdle to bar admittance on social grounds, and if they tend to be more or less progressive than widely held norms of the time regarding 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. However, it is likely thin for a reason.

Character and Fitness: a ubiquitous, historically present standard. And perhaps an empty one.

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, Legal Ethics, 490-491). Despite her characterization of C&F standards as "showpieces", "within the American Bar moral character requirements have been a fixed star in an otherwise unsettled regulatory universe... virtue remained a constant prerequisite, in form if not in fact." (Rhode, Moral Character as a Professional Credential, MoralCharacterCredential, 491.)

A cursory look at secondary sources indicates the first litigation over character and fitness standards was during the McCarthy? era, theoretically supporting Rhode's thesis of character as a non-effectual standard. However, the historical track of admission suggests early practices were personal, informal, and less likely to be litigated. Additionally, the screening future lawyers for character issues may take place earlier than bar exams; for example, at the time of gaining an apprenticeship, or upon applying for law school.

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, either by the lawyers themselves, in order to improve their image, or as imposed by legislatures. Alternatively, as the profession grew a 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).

During 18th and 19th centuries, bar examinations were orally administered before a judge.

The Role of Education in Character and Fitness

Early lawyers used apprenticeship which was a filtering device... (rhode, et al) After the 19th century, law schools may have been responsible for legal ethics... (Stevens)

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)

Character, Fitness, Race, and Gender.

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.

Legal Education in Colonial New York, Hamlin, New York University Law Quarterly Review 1939. discussing character of lawyers and men of government critically, and commenting on the unprofessional legal system in early America. For a 1941 law review article discussing and quoting extensively, see LegEdNewYork

Law School: legal education in America from the 1850s to the 1980s, Robert Stevens. Partially available here, LegalEd Argues that, at least since modern legal education, with the exception of a very active bar in the early 1950s seeking to exclude left-wing individuals, the bar primarily thought law schools were responsible for the ethics of lawyers (237)

Rise of the Legal Profession in America (Volumes 1&2), Chroust, University of Okla. 1965.

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



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r8 - 07 Jan 2010 - 21:20:31 - AndrewMcCormick
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