Get Naked, Flunk C&F Review?

After blogging about the AutoAdmit controversy, I suppose I have a professional obligation to comment on another story about law students doing stupid things.  As reported in the New York Daily News, a 3L at Brooklyn Law School decided to "do something a little crazy" before graduation, so she answered an ad on Craigslist to appear in a series for Playboy TV called Naked Happy Girls.  The Daily News article suggests the student "may have to kiss off her career."  It may be true that employers may be reluctant to hire someone who seems to exhibit poor judgment (although plenty of students do stupider things than this), but the idea that a state bar character and fitness committee would ding her for this episode is, frankly, incredible.  Eugene Volokh says the state may be prohibited by the First Amendment from penalizing her for making the video.  Maybe, although as I've noted with reference to Hale and the 1950's and 60's loyalty-oath cases, the Court has been extremely reluctant to recognize any substantial First Amendment protections for bar applicants.  The real reason this is going nowhere is that there is no conceivable connection between the student's appearance in the video and the professional obligations of lawyers. 

The basis for denying any applicant on character and fitness grounds is a prediction, on the basis of the applicant's past conduct, that the applicant will be unable to comply with the rules governing the legal profession.  It's true that the statutory character and fitness requirements make reference to vague concepts like "good moral character," but these have pretty uniformly been interpreted as including a germaneness requirement -- i.e. that any deficiencies in the applicant's character are likely to manifest themselves as an inability to comply with the bar's rules of professional conduct.  See, e.g., Cord v. Gibb, 254 S.E.2d 71 (Va. 1979) (fact that applicant is cohabiting with member of the opposite sex [horrors!] is not relevant to applicant's fitness as a lawyer).  Cases upholding the denial of admission on character and fitness grounds inevitably rely on an inference from the past conduct to a prediction that the applicant will do something prohibited by the lawyer disciplinary rules.  See, e.g., In re Mustafa, 631 A.2d 45 (D.C. App. 1993) (mishandling moot court funds); In re Simmons, 584 N.E.2d 1159 (Ohio 1992) (misappropriation of funds from student organization).  For example, an applicant who has mishandled funds entrusted to him may be substantially more likely than the average applicant to have a problem managing client trust funds, in violation of the local version of Model Rule 1.15(a).  Similarly, applicants with a repeated pattern of convictions may suggest to the bar authorities an inability to comply with the law.  See, e.g., In re Kapel, 651 N.E.2d 955 (Ohio 1995) (repeated traffic violations and psychiatric treatment for impulse control problems); Frasher v. Board of Law Examiners, 408 S.E.2d 675 (W. Va. 1991) (applicant had three DUI convictions and 24 speeding tickets).  The inference here would be that the pattern of lawbreaking indicates a disposition to disobey the law, which would likely result in a violation of the state's version of Model Rule 1.2(d).   

Being obnoxious or showing poor judgment is not, by itself, a sufficient basis for predicting that an applicant will have problems complying with his or her legal obligations.  However, it may be possible for a court to construe obnoxiousness differently -- e.g. as a disposition to abuse the legal process.  In my favorite goofy case of In re Converse, 602 N.W.2d 500 (Neb. 1999), the applicant had made himself a gigantic headache to the administration of his law school, but what gave the character and fitness committee the legal hook to deny his application was his use of frivolous legal proceedings as a means of harassment. 

In the case of the student running the AutoAdmit board, and some of the students who have posted comments there, the basis for denying their admission on character and fitness grounds would be a prediction that they would be unable to refrain from violating the legal rights of others.  Their disrespect for the privacy rights of others and their cavalier attitude toward making defamatory comments might support an inference that they would be likely to have a problem complying with the law in practice.  Following the Hale case, a character and fitness committee might similarly conclude that the posters and the student who maintained the board are less likely to be able to comply with the anti-discrimination rules in effect in many jurisdictions, which prohibit lawyers from discriminating on the basis of race, sex, and other protected classes.  (The racism of many of the comments is what first struck me as troubling about the discussion on AutoAdmit.) 

I should note again, for the record, that I am strongly opposed to what I think is incredibly sloppy use of past conduct to predict future behavior.  Aren't these character and fitness committees committing the fundamental attribution error by assuming that the explanation of past misconduct is a stable disposition, and not some features of the situation that may not be repeated in practice?  A shout-out here is due:  Long before the current trendiness of behavioral social science research, Deborah Rhode criticized the character and fitness process for wrongly assuming that past conduct could predict future instances of professional misconduct.  See Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491 (1985).  Unfortunately, state bars seem fairly untroubled by the lack of rigor in the character and fitness screening process, and continue to rely on past conduct. 

Like it or not, character and fitness review is here to stay.  Bar committees and courts have not shown any particular interest in applying robust First Amendment protections to applicants, and have shown even less interest in modifying the process to reflect our best understandings about the predictive value of past acts.  However, even given these deficiencies in the process, there's no way the applicant in the Playboy videos should have any difficulty with the character and fitness process.  The challenge for anyone who disagrees is to find a professional obligation that you believe she is more likely to commit (as compared with the overall applicant population) based on her appearance in the video.  In other words, what exactly did she do wrong here, legally speaking, and how is that likely to manifest itself in her conduct as a lawyer?  I'm coming up with a blank. 

Comments

[S.cotus]

This controversy is a load of sexist crap. (Disclosure: I am male, straight, etc.)

Somewhere along the line, our society has convinced ourselves that the nude form is beautiful (I don’t know about this women in particular, because I didn’t see her pictures). Indeed, as we all know, nude artwork is constitutionally protected. Strangely enough, male nude forms don’t get as much attention as females. But this might be because of societal constraints that are changing.

But, if a woman is actually nude, then somehow her nudity, as the above post (but not necessarily the poster) suggests, might implicate her personal character! Now, perhaps maybe if she was naked and engaging in bid-rigging, I might conclude that she had bad character. But, she wasn’t.

On top of this, there is even a greater problem. The sex-related industry in the U.S. is big. A lot of women are involved in it on all levels. Most of them are not committing any crimes. People seem to be saying that these women are not entitled to be represented by a lawyer with any “real” experience in the area. While men like myself might be able to show “sympathy” for their for their legal challenges, we won’t be able to completely connect with these clients without sounding like pigs. There are very few women out there with real experiences in these areas, that can speak to clients with “empathy” and if we exclude people for otherwise legal behavior, we will just be showing, once again, that the legal profession only wants to limit its ranks to members that have conformed, throughout their lives to some bizarre ideal of not only politics, but sexuality.

[Eric Goldman]

I had always thought that phantom controversies were just an excuse to link to the photos in question. Eric.

[peer]

As reported in the New York Daily News, a 3L at Brooklyn Law School decided to "do something a little crazy" before graduation, so she answered an ad on Craigslist to appear in a series for Playboy TV called Naked Happy Girls. The Daily News article suggests the student "may have to kiss off her career."

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peer

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