"This may be a subject of concern ..."

I have been halfway following the controversy over a message board for admitted law students, alternatively referred to as AutoAdmit or xoxohth.  Prospective and current law students are allowed to post anonymously, and many of the threads degenerate into name-calling, or worse.  I have occasionally looked at the site, and it is often infantile and mean spirited, but it sometimes goes beyond that, into racism, sexism, anti-Semitism, and homophobia.  (A company called ReputationDefender, which tries to clean up internet postings about people, for a fee of course, has compiled this gallery of postings.)  Recently there has been increased pressure on the site, maintained by a third-year law student at Penn, as a result of particularly offensive postings possibly rising to the level of threats or stalking.  (See Brian Leiter's post.) 

The offensiveness issue has been discussed extensively in blogs, but as far as I know, no one has yet focused on the legal ethics issue.  As reported in this Saturday's Washington Post, the deans of Yale and Penn law schools have denounced the vicious, personal attacks.  The dean of Penn noted that while the university may not have grounds to demand that the site be shut down, comments on the site could form the basis for defamation lawsuits and, most interesting to me, "may increasingly become the subject of concern by bar admissions committees."  Is the dean bluffing, or would bar admissions committees pay attention if it were brought to their attention that an applicant had been posting racist and sexist rants? 

One case supporting denial of admission is the controversy surrounding the application of Matthew Hale for admission in Illinois.  Hale is a white supremacist, self-proclaimed Pontifex Maximus of some made-up whites-only church, and leader of a small but violent band of racist thugs.  When Hale applied for admission, the initial Inquiry Panel denied his application because of his failure to accept "certain fundamental truths" such as racial equality.  It read the McCarthy-era loyalty-oath cases narrowly, as standing for the proposition that bad beliefs alone could not serve as the basis for denial of admission, but inquiry into the applicant's beliefs is permissible, and could reveal evidence that the applicant is likely to engage in prohibited actions.  This decision was affirmed by an appellate panel of the admissions committee, on the grounds that Hale's outspoken white supremacist beliefs were sufficient evidence of a substantial likelihood of his inability to comply with an Illinois disciplinary rule prohibiting discrimination on the basis of race.  Notice that this ground avoids the potential First Amendment problem of punishing speech -- the content of Hale's speech is relevant only as evidence of potential future misconduct. 

Although this may seem to undercut the First Amendment's protection of unpopular speech and ideas, it is firmly rooted in the Supreme Court's jurisprudence on bar admissions, including a number of cases involving applicants who were asked about their membership in the Communist Party.  The Court has never entirely repudiated these cases, and many, many lower courts have relied on them in response to applicants' reliance on the First Amendment.

For an amusing counterpoint to Hale, consider the Nebraska case, In re Converse, 602 N.W.2d 500 (Neb. 1999).  In that case, a law student got himself worked up about alleged corruption and laziness by the faculty, wrote a series of newspaper articles denouncing the administration, and tried to tee up a civil rights lawsuit by posting "a picture of a nude female backside" in his carrel.  To finance his one-person crusade, he printed up "deanie on a weenie" t-shirts depicting the dean "astride what appears to be a large hot dog."  When his application to the Nebraska bar was denied on character and fitness grounds, Converse appealed to the Nebraska Supreme Court.  His principal argument was that his activities were protected by the First Amendment.  The court rejected those arguments, again on the grounds that Converse's speech was not a basis as such for denial of admission, but was evidence of a propensity to use legal and extralegal means to harass his opponents.  Thus, the bar committee was justified in its prediction that Converse would violate the rules of professional conduct as a lawyer.

Notice the common thread in these two cases.  The bar committee was able to characterize speech as evidence of a propensity to violate the norms governing the legal profession.  Given how broad some of those norms are -- including the anti-discrimination rules in effect in many jurisdictions -- it isn't too much of a stretch to imagine a bar committee reacting very strongly against some of the students who have posted on AutoAdmit.  (As for the anonymity of the comments, I don't know anything about cyberspace law, but I think it's the case that an ISP would divulge identifying information in response to a subpoena in a defamation lawsuit.) 

Just to be clear, I am not personally endorsing the results or the reasoning of the Hale and Converse cases.  I strongly object to denying admission on grounds that would not serve as a basis for disbarring or suspending a lawyer already in practice.  I also object to the thin evidentiary basis that committees sometimes rely upon to justify a "prediction" that an applicant will violate the disciplinary rules when in practice.  Finally, I would like to see the Court repudiate its Communist cases and draw a clearer line around protected beliefs.  Even though I don't think acting like a complete jackass should be a basis for denial of admission, if I were one of the students who made some of the worst of these comments, I'd be sweating bullets right now. 

Comments

[Anon]

FYI, your link to Brian Leitner's article doesn't work.

[Alan Childress]

Brilliant, Brad.

Here is the link to Leiter:

http://leiterlawschool.typepad.com/leiter/2007/03/more_on_the_cio.html

[anon]

It appears that the third year Penn student has somehwat distanced himself from autoadmit for now.

[steve lubet]

i once wrote an oped in favor of admitting matthew hale to the bar, arguing that noxious beliefs don't necessarily predict unlawful or unethical conduct. in hale's case, however, the predictions came true -- as he is now in prison for conspiring to murder a federal judge.

the logic of my oped was flawless, but it does appear that the bar examiners had some insight into his character that i lacked.

proving once again that the life of the law has not been logic, it has been experience.

[David Cameron Carr]

In California, at least, offensive internet speech will be scrutinized by our Committee of Bar Examiners. The definition of good moral character required for admission in California is expansive: "The term "good moral character" includes qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process." Rule X, section 1, Rules Regulating Admission to Practice Law in California. I once counselled a bar applicant who had been denied admission on moral character grounds. One basis for denial were statements he made on his website implying that he was currently able to represent clients as a sports agent but another basis was a separate web page where he listed his sexual conquests in explicit detail, including names. The Committee evidently concluded that he was sorely lacking in respect for the rights of others. The client was unwilling to fund a test the Committee's decision by way of a petition for review to our State Bar Court.

[Kristjan Wager]

Is the dean bluffing, or would bar admissions committees pay attention if it were brought to their attention that an applicant had been posting racist and sexist rants?

Actually, the users of the site have infringe on other peoples' copyright and have posted (mostly rape-related) threaths and private information about other people.
Now, the student in question hasn't posted any of these things, but when asked by the people affected to remove it, he refused to do so, even though he has demonstrated the ability to remove posts in other contexts - mostly posts identifying people who posted such things.

So, this is really not about personal belief - it's about conduct unbecomming for a professional. Through his (and his partner's) inaction, they enabled crimminal behaviour, while showing willingness to protect the indentity of the people responsible for the behaviour.

Personally, I wouldn't want such a person as my lawyer.