Introduction

Among the many hurdles on the path to becoming a lawyer in the United States, one stands out as both necessary and daunting to everyone: the Character and Fitness evaluation. Every aspiring attorney must undergo this assessment before being admitted to the bar, yet it remains one of the most anxiety-inducing aspects of the process. Unlike the bar exam, which tests legal knowledge, the Character and Fitness review scrutinizes an applicant’s past conduct, financial responsibility, criminal history, and even personal integrity to determine whether they are morally fit to practice law.[1]

While the evaluation is intended to protect the public and uphold the integrity of the legal profession,[2] critics argue that it is often arbitrary, overly intrusive, and disproportionately harmful, especially to applicants from marginalized backgrounds.[3] Questions about mental health, financial struggles, or past mistakes can create barriers for otherwise qualified candidates, raising concerns about whether the process is truly fair or whether it serves as an unnecessary gatekeeping mechanism.[4]

This blog post explores the purpose, processes, controversies, and potential reforms of the Character and Fitness process, questioning whether it truly serves the interests of justice or simply reinforces systemic inequities in the legal profession.

Purpose and the Current Process

The primary purpose of the Character and Fitness evaluation is to protect the public and maintain the integrity of the legal profession by ensuring that only individuals with the requisite moral character are admitted to the bar.[5] This process serves multiple functions: safeguarding the administration of justice from unethical practitioners, reinforcing public trust in lawyers, and upholding the profession’s status.[6]

The evaluation process is rigorous and varies by jurisdiction but generally follows a structured format. Applicants must submit a detailed questionnaire covering their criminal history, financial responsibility, academic record, mental health history, and professional conduct. Supporting documentation, such as character references, credit histories, and disciplinary records, may also be required. If concerns arise, applicants may undergo additional investigations, be given an opportunity to respond, or, in more serious cases, attend an investigatory hearing before a character and fitness committee. The final decision typically rests with the bar admission board or the courts, often deferring to committee recommendations.[7]

Criticisms

The Character and Fitness evaluation has faced widespread criticism on multiple fronts, including the subjectivity of the “good moral character” standard, the inconsistent determinations that undermine its predictive validity, intrusive nature and high burden on the applicants, and its overall ineffectiveness as a screening tool.[8] However, two issues stand out as particularly concerning in my view.

Potential Discrimination

Historically, Character and Fitness evaluations have been wielded as a tool for exclusion, barring individuals from the legal profession based on race, ethnicity, political beliefs, and even personal lifestyle choices rather than objective concerns about their ability to practice law ethically.[9] While explicit discrimination has been curbed over time, concerns persist that the modern process continues to disproportionately disadvantage marginalized groups, albeit in more subtle ways.[10]

One major issue is the scrutiny of financial responsibility, including credit history, past bankruptcies, and student loan debt. Given the racial wealth gap and systemic economic disparities, Black and Latino applicants are disproportionately affected, as they are more likely to carry higher levels of student debt and have fewer financial resources.[11] Women, particularly women of color, may also face disadvantages due to the gender wage gap and caregiving responsibilities, which can contribute to financial instability.[12] The process often appears to fail to distinguish between financial hardship and moral unfitness, unfairly penalizing applicants who have struggled due to structural inequities rather than unethical behavior. Furthermore, criminal history inquiries exacerbate these disparities, as racial minorities are disproportionately policed and convicted, leading to additional scrutiny even for minor infractions.

Mental Health Issues

The Character and Fitness evaluation process has long been criticized for its approach to mental health inquiries, which often deter law students from seeking necessary treatment out of fear that disclosure could jeopardize their bar admission.[13] Many jurisdictions have historically asked applicants about their history of mental health diagnoses, rather than focusing on whether an applicant’s condition currently impairs their ability to practice law. This practice not only stigmatizes mental health conditions but may also violate the Americans with Disabilities Act (ADA) by unfairly linking mental illness to a lack of good moral character.[14] Critics argue that requiring disclosure of past diagnoses—rather than focusing on present fitness—fails to recognize that many mental health conditions, with proper treatment, do not interfere with professional competency.[15] As a result, applicants may avoid seeking therapy or medication, prioritizing bar admission over their well-being, which paradoxically undermines the profession’s interest in fostering resilient, ethical attorneys.

Beyond the chilling effect on mental health treatment, bar examiners often lack the expertise to properly assess the relevance of an applicant’s mental health history. The subjective and inconsistent nature of these evaluations means that applicants with similar conditions may receive vastly different treatment depending on the jurisdiction or the individual examiner reviewing their case.[16] Given these concerns, some states have begun shifting toward inquiries that focus on actual conduct and current impairments, rather than past diagnoses.

Possible Reform Proposal

In my view, reforming the Character and Fitness process requires a shift from rigid gatekeeping to a more nuanced, rehabilitative approach that recognizes personal growth and the realities of systemic inequities. One crucial change could be the elimination of overly broad mental health inquiries. Instead of asking about specific diagnoses or treatment history, bar examiners should focus solely on behavioral concerns relevant to professional conduct—ensuring that applicants are not penalized for seeking help.

Additionally, the treatment of past misconduct should emphasize rehabilitation over exclusion. Bar committees could adopt a structured framework that weighs the time elapsed since an incident, demonstrated remorse, and concrete steps toward ethical development, rather than issuing blanket rejections. Expanding access to conditional admission programs, where applicants can prove their fitness through supervised practice, could further promote fairness without compromising public trust.

Ultimately, a fairer Character and Fitness evaluation should ensure that the legal profession upholds its ethical standards without disproportionately disadvantaging those who have overcome past hardships—allowing for a profession that is both principled and inclusive.

 

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[1]  Leslie C. Levin, The Folly of Expecting Evil: Reconsidering the Bar’s Character and Fitness Requirement, 2014 BYU L. Rev. 775, 783–84 (2014).

[2]  Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 13 Touro L. Rev. 569, 569 (1997).

[3]  David L. Hudson Jr. & Andrea Gemignani, The Other Bar Hurdle: An Examination of the Character and Fitness Requirement for Bar Admission, 48 Mitchell Hamline L. Rev. 500, 520–26 (2022).

[4]  Id.

[5]  Leslie C. Levin, Christine Zozula & Peter Siegelman, The Questionable Character of the Bar’s Character and Fitness Inquiry, 40 Law & Soc. Inquiry 51, 52 (2015).

[6]  Id.

[7]  Levin, supra note 1, at 783–84; Levin, supra note 5, at 53.

[8]  See Levin, supra note 5.

[9]  Hudson, supra note 3, at 504; Levin, supra note 1, at 781–83.

[10]  Hudson, supra note 3, at 520–21.

[11]  Joseph A. Valerio, The Impact of the Character and Fitness Honesty and Financial Responsibility Requirements on Underprivileged Groups, 30 Geo. J. Legal Ethics 1093, 1107–9 (2017).

[12]  Id. at 1109–10.

[13]  Aaron M. Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination for Bar Applicants, 40 Akron L. Rev. 255, 291–92 (2007).

[14]  Jon Bauer, The Character of the Questions and the Fitness of the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93, 136–37 (2001).

[15]  Clemens, supra note 13, at 292.

[16]  Bauer, supra note 14, at 211–12.