Law is a self-regulated profession and sets its own standards for qualification. Prospective lawyers are generally deemed qualified after being evaluated by two different tests: the bar exam and the character and fitness review.

The bar exam is a rigorous professional examination that evaluates substantive knowledge of the law. By contrast, the character and fitness review is an extremely personal evaluation designed to assess a prospective lawyer’s integrity, trustworthiness, and diligence.

While sometimes straightforward, this personal evaluation can be very subjective. It can feel like an extensive examination of anything in one’s past that could remotely raise questions about character and fitness. Accordingly, the process warrants preparation and guidance on determining what information to disclose.

A wide range of information can be requested. Past unlawful conduct—for example, convictions for alcohol or drug offenses and theft or assault—typically triggers further scrutiny. Other examples of conduct that raise red flags include academic misconduct and neglect of financial responsibilities.

Although certain aspects of this process have stayed the same, standards can and do evolve with changes in society and technology. Some jurisdictions have shifted their approaches due to societal changes and interest in making the process more equitable and effective.

For example, New York bar admission candidates had long been required to disclose mental health diagnoses or treatments. There was growing concern in the legal community that this disclosure requirement could have the undesirable consequence of discouraging a law school student from seeking out treatment and management of their diagnosis or condition.

In 2020, New York removed questions about mental health conditions or treatment history. This means that bar applicants aren’t required to disclose the fact of any diagnosis or mental health treatment on the character and fitness portion of the application. Disclosure could still be required if the candidate has previously asserted any condition or impairment as a defense, in mitigation, or as an explanation for certain conduct within the past seven years.

With increasing recognition and destigmatization of how many individuals struggle with mental health challenges at some point in their lives, the focus of what matters most from a professional licensing standpoint has properly shifted to conduct and behavior.

New York also eliminated last year an express requirement to disclose any arrest that a candidate may have been subject to in the past. The state previously required prospective lawyers to disclose all criminal justice system involvement, regardless of the outcome or seriousness of the offense—except for parking tickets and certain traffic violations.

After extensive deliberation and review, New York no longer requires bar applicants to disclose matters that were adjudicated in a juvenile delinquency proceeding in family court or through other equivalent noncriminal proceedings. The state also stopped requiring disclosure of citations, tickets, arrests, and other encounters with law enforcement that didn’t result in formal criminal charges or an indictment, trial, conviction, or guilty plea.

The stated intention of the Appellate Division in making this change was “to advance the diversity of the bar by reducing the possible chilling effect the previous question had on law school applicants due to the disproportionate rates of policing and prosecution experienced in communities of color.”

There is still a need to disclose personal and sensitive information, which can prompt anxiety about the process and consequences of making a mistake. Considering the ever-increasing costs of a legal education, the stakes are very high. Unfortunately, sometimes even a delay in the admissions process can result in negative employment consequences.

Many law school graduates find the process of proving their substantive legal knowledge to be straightforward. But the burden of proving character and fitness may be far less simple.

To navigate the complexities and sensitive nature of bar admissions matters, some prospective lawyers rely on their own legal counsel. Counsel can help a candidate assess not only what to disclose, but also how to do so in a manner that demonstrates they have the requisite character and fitness to practice law.

With attention to detail and a bit of creativity, an experienced character and fitness lawyer can collaborate with a candidate to enhance their application as an advocacy tool for admission. It is important to approach this process in a way that is specifically tailored to the unique background of each candidate.

When dealing with sensitive issues, boilerplate and cookie-cutter responses aren’t often effective in this area of practice. Telling an authentic, compelling story about the candidate and their character is essential. It is the character and fitness lawyer’s job to help turn sometimes uncomfortable and highly personal mandatory disclosures into effective advocacy.

While the process has improved, it is still far from perfect. For anyone concerned about making certain disclosures, it can be crucial to get advice from a knowledgeable and experienced character and fitness lawyer.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

David A. Lewis focuses exclusively on legal ethics and bar admissions, helping prospective lawyers navigate the character and fitness admissions process in New York.

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