Character and Fitness Concerns and Diploma Privilege Advocacy

There has been some chatter on Twitter recently regarding threats to members of the Class of 2020 who are advocating for diploma privilege. These threats insinuate that the advocates will have trouble getting through the character and fitness process if they are outspoken about the inequity of going forward with a bar exam this year.

This is a dangerous perversion of the character and fitness process. The character and fitness process is a client protection mechanism. The process exists to ensure that individuals who enter the legal profession put their clients’ needs first and know how to handle client funds. The process is not without flaws of course (see, i.e. problematic questions about mental health histories, and financial history questions that were clearly not drafted by someone who has ever struggled financially), but it is supposed to make sure that lawyers understand that their responsibility is to their clients first, and that the legal profession is, at its core, a service profession. That goal is laudible.

The character and fitness process is not supposed to quell the speech of attorneys or future attorneys. It is not supposed to be used as a shield to protect the legal profession from criticism. It is certainly not supposed to scare recent graduates into submission so that licensing authorities can callously ignore current conditions and continue the gate-keeping status quo, setting back all efforts to diversify the profession and failing to take seriously this unique moment in history.

Our most recent law graduates are dealing with unimaginable stress right now. Our country is dealing with an unprecedented global pandemic. People are getting sick, and their loved ones are getting sick. They are trying to study for a bar exam — a normally extremely stressful process — that is now literally requiring them to risk their lives and those of their loved ones. Even those states that will be administering an online exam are ignoring the inequities of doing so. Many law graduates live in close quarters, and do not have quiet places to study or reliable internet. Taking a two-day exam at home with no interruption is nearly impossible. If a child or a dog walks into the room, they will automatically fail the bar exam. Is that really how we want to determine who becomes an attorney? By who has the resources to have a quiet home for two full days? I know that I would surely fail under these conditions as one of my two children appear in nearly every meeting I have these days. I guess I should give up my law license because my 1 year old doesn’t understand that he should be quiet all day every day while I work from home. But I digress…

We need to be lifting up and fighting for our most recent law graduates (both members of the Class of 2020 and those who graduated before them and are still going through the bar examination and licensing processes). We must all stand up to threats – vague or direct – from members of character and fitness committees, licensing boards, and others, who would rather have those impacted the most remain silent so they don’t have to face the reality that holding bar exams right now is inequitable, dangerous, and wrong. We need to say no to attempts to silence bar studiers, and instead amplify their voices.

I am looking forward to the reckoning that will come when members of the Class of 2020 get admitted, take over licensing boards and character and fitness committees, and reimagine what equity and diversity in the legal profession really look like. I believe that change will come.