The character and fitness portion of the bar exam serves the purpose of ensuring that barred attorneys are morally fit for the practice of law and deserving of the trust of the people. The character and fitness questionnaire usually asks about past criminal conduct or civil violations, academic or employment misconduct, mental health or substance abuse issues, and financial history. If an applicant does not pass the character and fitness portion of the bar, they cannot sit for the test portion.
If an applicant has prior transgressions, it does not mean they are automatically disqualified from the bar. An applicant must show they appreciate the wrongfulness of their past misconduct and they understand professional conduct for Massachusetts lawyers. The applications are reviewed on a case-by-case basis. This was the question in Lionel Porter v. Board of Bar Examiners decided by the Supreme Judicial Court.
What prior transgressions did Lionel Porter have?
Lionel Porter had applied for admittance to the bar multiple times in Massachusetts after his graduation from law school in 1985. After his graduation, he worked for a non-profit where he met Stephen Hrones, an attorney. They entered into an agreement where they would solicit clients and share the profits, even though Porter was not a barred attorney.
Porter worked at Hrones’s law firm and handled cases himself, without assistance and oversight from Hrones. Porter and Hrones held Porter out to be represented to clients as an attorney. This arrangement eventually led to the suspension of Hrones’s license. Porter would also use client retainers for his personal use and missed filing deadlines. Hrones fired Porter, but on his bar application, he wrote that he left of his own volition.
Porter was also a party to various civil and criminal suits such as the operation of an unregistered motor vehicle, assault and battery, and had a harassment prevention order issued against him.
Why did he not meet the standard for admittance to the bar?
There were various reasons the court cited for Porter’s rejection from the bar based on character and fitness. First, he had incomplete and inconsistent disclosures on his application to the bar.
Next, his conduct while working at Hrones’s law firm was a concern for the court. Porter acknowledged that he signed Hrones’s name on an affidavit, accepted clients, negotiated fees, advised clients as to their legal rights, and other legal work. Porter also said that he kept the retainer from the clients for his personal use to pay his bills because he was not getting a salary. He did not show the court that he appreciated the wrongfulness of his conduct and was remorseful of it.
Finally, the court was concerned about the prior criminal and civil matters in that Porter was involved. He did not fully and accurately disclose them on the bar application, and the applications were not consistent with each other. Many of Porter’s criminal charges had been dismissed at this point, but in one of the crimes where he was convicted, he placed blame on the victim. He did not take responsibility for his actions that resulted in the crime. Therefore, it shows he had not been sufficiently rehabilitated and he could not dedicate himself to the peaceful settlement of disputes that would be required of an attorney.
Was there any other evidence considered for Porter’s bar application?
The court also considered his efforts to rehabilitate, but they found that they did not outweigh the transgressions. Porter participated in continuing legal education programs, and read treatises and appellate court decisions, but this was not enough to tip the scales in his favor and still left substantial doubts as to the trustworthiness of his character.
For more information on character and fitness follow Attorney DelSignore on Facebook.