ABCDE
1
2
Character & Fitness Jurisdictional Survey
3
Unlock the Bar (UTB) has conducted a jurisdictional landscape survey that reviews the Character and Fitness (C&F) questionnaires throughout all 58 United States attorney-licensing jurisdictions. UTB charts 7 main subject matter areas: 1) criminal legal involvement, 2) academic discipline; 3) adverse employment actions, 4) financial matters, 5) mental health and substance use history, 6) immigration status, and 7) involvement in civil matters. We note whether applicants are required to disclose these matters, provide any available links to respective applications, and detail other matters of particular interest, such as invasive questions that are unconnected to a person’s character.
4
5
Importantly, the results of this landscape survey underscore how the C&F process supports an exclusionary legal regime across the country. Across jurisdictions, we find the same types of inquiries that target applicants for the consequences of living as an oppressed person within a systemically oppressive state. For example, out of a total of 58 jurisdictions, 39 jurisdictions ask an applicant to disclose all interactions with the criminal legal system, including interactions that occurred during childhood, regardless of whether the matter is sealed or expunged. Forty-eight jurisdictions inquire about an applicant's mental health, 52 ask about their substance use history, and 52 require the applicant to disclose information about paying child support. Furthermore, it appears as though the C&F is used to reinforce state surveillance and invasions of privacy. Many jurisdictions require applicants to produce background checks, fingerprints, and birth certificates, as well as sign releases to disclose confidential records of medical and mental health treatment.
6
7
Many jurisdictions ask questions that are either unrelated to legal practice or call into question the constitutionality of the questionnaires. For example Colorado asks about whether an applicant has ever had a marriage dissolve, and in what way; Pennsylvania asks if an applicant has ever been confronted by a teacher about the thoroughness of their work; and, South Carolina asks an applicant to disclose whether they have ever invoked their 5th Amendment Right against self-incrimination – a right so safeguarded that prosecutorial commentary on a defendant’s invocation of that right during a trial can lead to a mistrial. The fact that a legal licensing regime would be inquiring about the invocation of this protected right – as a matter of determining one’s character – truly undermines the validity of these inquiries.
8
9
The inquiries highlighted in this UTB chart are not even a full picture of all the ways these C&F questionnaires may disparately impact applicants from oppressed communities. The Character and Fitness apparatuses employed across the country are extremely complex and opaque. UTB sourced information from jurisdiction-specific C&F questionnaires, court webpages on their respective C&F processes, and the designated applications offered through the National Conference of Bar Examiners (NCBE), many of which are password-protected. Twenty-five jurisdictions use NCBE services, some of which may also use their own specific application as an addendum.
10
11
UTB intends the release of this chart to foreground the national political regime of the C&F and highlight the factors that lead to an approximately 86% White legal profession. The survey also details the types of questions anyone interested in applying to law school may face during the licensure process. This chart may also be utilized to support advocacy efforts for those interested in challenging the C&F in their own state.
12
13
UTB, the National Justice Impact Bar Association, and many other advocates are here to support applicants in overcoming these barriers.
14
15
Important Note: This survey is not legal advice. If you are applying to the C&F, please consult with legal professionals within your jurisdiction to learn the most accurate information about your jurisdiction’s specific process, and how to best navigate through the C&F with your concerns. All of these applications have been sourced by UTB and may potentially miss the ways in which the full C&F process in these jurisdictions may inquire into subject matter that UTB has denoted is not asked in the questionnaire. UTB’s survey was conducted in March 2022 and any subsequent change a jurisdiction may make to their questionnaire will not be reflected on this 2022 survey.