37
Apologies and Fitness to Practice Law:
a Practical Framework for Evaluating
Remorse in the Bar Admission Process
Mitchell Simon, Nick Smith and Nicole Negowetti*
I. Introduction: an Overview of The Problem of Apologies
in Character and Fitness ...............................................................
II. A Review or The Varying and Inconsistent treatments
of Apologies in Character and Fitness Cases...............................
III. The Meaning of Apologies ..........................................................
IV. A Practical Framework for Expressing and Evaluating
Apologies in Character and Fitness Cases ...................................
V. Concluding Considerations Regarding The Purpose
of Character and Fitness Review ..................................................
37
41
58
67
75
I. Introduction: an Overview of the Problem
of Apologies in Character and Fitness
Virtually all law students are aware of the bar exam requirement.1
A less well-known requirement is that every state bar currently requires character certification as a prerequisite for bar admission.2 Each state conducts its
* Mitchell Simon is a Professor of Law at University of New Hampshire School of Law
and Of Counsel to Devine, Millimet and Branch. He has written and spoken extensively on issues of professional responsibility. Nick Smith is an Associate Professor of Philosophy at the
University of New Hampshire. He is the author of one of the leading books on remorse, I Was
Wrong: The Meaning of Apologies (Cambridge University Press 2008) and a former law clerk
to the United States Court of Appeals for the Third Circuit. Nicole Negowetti is an Assistant
Professor of Law at Valparaiso School of Law, and a former law clerk to the New Hampshire
Supreme Court. This article revises and expands on arguments Professors Smith and Simon
have advanced in prior publications.
1. The standards for measuring intellectual fitness are generally uniform among the
states, which typically require completing at least three quarters of a baccalaureate degree at
an accredited college or university, graduating from an approved law school, and passing a bar
examination. Matthew A. Ritter, The Ethics of Moral Character Determination: An Indeterminate Ethical Reflection Upon Bar Admissions, 39 Cal. W. L. Rev. 1, 11 (2002). For one innovative alternative to the exam requirement, see the Daniel Webster Scholar Program, which is a
joint effort of the University of New Hampshire School of Law (formerly Franklin Pierce Law
Center) and the New Hampshire Supreme Court. See http://www.piercelaw.edu/websterscholar;
John Burwell Garvey and Anne F. Zinkin, Making Law Students Client-Ready: A New Model
in Legal Education, 1 Duke F. L. & Soc. for Law & Social Change 101 (2009).
2. See, e.g., Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale
L.J. 491, 493 (1985); National Conference of Bar Examiners Comprehensive Guide to Bar
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Journal of The Professional Lawyer
own character investigations to determine whether an applicant is morally fit to
practice law.3
The procedures used to determine moral fitness to practice law vary in scope
and substance from state to state.4 Despite these differences, the most common
method for determining whether a bar applicant possesses the requisite good moral
character to practice law is for a bar or court appointed character committee to
examine a variety of information regarding the applicant.5
When applicants seek admission to the bar, they have placed their character at
issue.6 Therefore, the applicant bears the burden of producing information proving
good moral character.7 Information concerning the applicant primarily comes from
standardized bar applications, interviews, and letters of recommendation.8
The applications will ask questions concerning educational and employment
history, finances, criminal and civil misconduct, mental health problems and addictions.9 Essentially, bar character committees determine an applicant’s good moral
character by “assessing all of the relevant facts before them.”10
If this preliminary character investigation reveals that the application is problematic in any way, “heightened scrutiny” by the bar admission committee is typically triggered.11 An applicant who does not meet the state’s standard of good
character is provided a formal hearing.12 At this hearing, the applicant has the right
Admissions vii, III.7 (2009), available at http://www.ncbex.org/fileadmin/mediafiles/downloads/
Comp_Guide/2011_CompGuide.pdf [hereinafter NCBEX Guide].
3. Marcus Ratcliff, The Good Character Requirement: A Proposal For a Uniform National
Standard, 36 Tulsa L.J. 487, 487 (2000).
4. Rhode, supra note 2, at 506; Ritter, supra note 1, at 14. For example, character investigations may be undertaken by a state bar association while the applicant is in law school, prior to
sitting for the bar examination, or subsequent to successful completion of the bar examination. In
most states, the bar association processes the application; however, in eleven states a separate agency
evaluates character and fitness. NCBEX Guide, supra note 2, at 6-7.
5. See Rhode, supra note 2, at 505.
6. Ratcliff, supra note 3, at 492.
7. NBEX Guide, supra note 2, at viii. See, e.g. Minnesota Rules for Admission to the
Bar R. 5B(2), (“The applicant bears the burden of proving good character in support of the application.”); Regulations of the Connecticut Bar Examining Committee Edition of 2008, Art.
VI-3. Burden of Proof, available at http://www.jud.state.ct.us/CBEC/regs.htm#VI (“The applicant
bears the burden of proving his or her good moral character and fitness to practice law by clear and
convincing evidence.”).
8. See Richard R. Arnold, Presumptive Disqualification and Prior Unlawful Conduct: The
Danger of Unpredictable Character Standards for Bar Applicants, 1997 Utah L. Rev. 63, 65 (1997).
9. See, e.g., Petition and Questionnaire for Admission to the Bar of New Hampshire, available
at http://www.courts.state.nh.us/nhbar/petition.pdf.
10. Michael K. McChrystal, A Structural Analysis of the Good Moral Character Requirement
for Bar Admission, 60 Notre Dame L. Rev. 67, 69 (1984).
11. Ritter, supra note 1, at 15.
12. See, e.g., Rules for Admission of Attorneys, Oregon Supreme Court R. 9.35 available
at http://www.osbar.org/_docs/rulesregs/admissions.pdf.
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Evaluating Remorse in The Bar Admission Process
39
to respond to the matters asserted or charged in the notice, including the right to
present evidence and to question witnesses.13
Once an applicant’s conduct raises an issue of fitness to practice law, especially if prior misconduct involved unlawful acts, he or she may be obliged
to demonstrate rehabilitation.14 One significant factor in determinations of rehabilitation and fitness is whether the applicant expresses and demonstrates
remorse.15
Scholars have challenged the efficacy of evaluating an applicant’s remorse
for many years. Deborah Rhode argued that the use of remorse in admission cases
is flawed because it is founded on a faulty empirical premise: That “certain attitudes are sufficiently predictive of subsequent misconduct to justify the costs of
the certification process.”16 One of this article’s co-authors has argued that use of
remorse in cases of youthful offenses “fails to serve the underlying purpose of the
process, and is likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors. Additionally, such inquiry muddies an already
complex task and adds little, if anything, to the character and fitness committee’s
ability to access the applicant’s candor during the process.”17
13. Id. at R. 9.35(6).
14. Application of G.L.S., 439 A.2d 1107, 1117-18 (Md. 1982).
15. See, e.g., id. at 1117 (“The applicant readily admitted that he himself was solely responsible for his participation in and commission of the crime. While he was unarmed and served only
as the driver of the get-away car, he recognized no difference in the degree of culpability between
himself and the other two persons involved in the crime. Thus the applicant admitted that his criminal
acts were morally wrong and indefensible.”); Matter of Peterson, 439 N.W.2d 165, 169 (Iowa 1989)
(“Without looking beyond Peterson’s 1988 testimony, it becomes apparent that his initial descriptions
of the 1976 incident as a technical and minor assault were attempts to mischaracterize the incident.
This testimony displays a callous and indifferent attitude toward an explosive personal confrontation.”); Partin v. Bar of Ark., 894 S.W.2d 906, 909 (Ark. 1995) (“In particular, the Board majority is
compelled to conclude that the applicant engaged in criminal activity and has yet to exhibit remorse
or acceptance of the criminality of his actions.”).
16. Rhode, supra note 2, at 545-55. Professor Rhode also criticized the general character system and wrote that “the current administration of the moral character criteria is, in effect, a form
of Kadi justice with a procedural overlay. . . The process is a costly as well as empirically dubious
means of securing public protection.” Id. at 584. See also Maureen M. Carr, The Effect of Prior Criminal Conduct on the Admission to Practice Law: The Move to More Flexible Admission Standards, 8
Geo. J. Legal Ethics 367, 373 (1995). (“In addition to problems in determining degrees of moral
turpitude and wrongdoing, past offenses simply may not be a reliable gauge of present character.”).
Further support for this conclusion can be found in a study of Virginia’s revision of its parole system.
The study found two factors that had some relationship to recidivism: prior felony drug convictions
or prior adult incarcerations. However, it also found that a number of factors commonly used in the
admission process-such as age at time of offense, were irrelevant. Interestingly, it found the only
demographic factor that was potentially significant to differentiate recidivism among subgroups was
gender, a factor that most would agree should not be used in bar admission decisions. See Brian J.
Ostrom, et al. Offender Risk Assessment in Virginia 1 (2002).
17. Mitchell M. Simon, What’s Remorse Got to Do, Got to Do with It? Bar Admission for
Those with Youthful Offenses, Mich St. L. Rev. (forthcoming 2011).
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Nonetheless, courts have consistently looked to remorse as an admission
factor, especially in cases of past criminal conduct.18 A 1985 study of character and fitness decisions showed that in over one-half of the reported cases,
the applicant’s effort to atone or expressions of remorse for prior conduct was
explicitly discussed.19 Simon’s review of reported cases between 1980 and
2009 involving bar applicants with youthful offenses confirmed this pattern.
During this period, 59 out of 128 reported cases analyzed remorse as a decisional factor.20
Interestingly, an applicant’s willingness to express remorse is not often the
key to a decision to admit the applicant,21 but the unwillingness to express remorse
has been seen by character and fitness committees and reviewing courts as disqualifying.22 Perhaps more significantly, applicants’ refusal to express remorse,
even in cases of sincerely held beliefs that they were wrongly convicted or that the
18. Rhode, supra note 2, at 544; In re Nathan, 26 So.3d 146, 147 (La. 2010) (“Petitioner knowingly forged the notary’s signature on her bar application. This fact was not disputed by petitioner;
rather, she attempted to explain her dishonest conduct as a momentary lapse in judgment because
of the stress she was under at the time.”); Application of K.B., 434 A.2d 541, 545 (Md. 1981) (“It
would be a most unusual case indeed where rehabilitation, sufficient to permit admission to the Bar
of a convicted adult thief, can be shown to have taken place simultaneously with getting caught, and
this is not such a case.”).
19. Rhode, supra note 2, at 544.
20. Simon, supra note 17. A number of the cases not explicitly discussing remorse turned either on alcohol and drug dependency, where remorse does not seem to be relevant, or lack of candor.
See, e.g., In re Application of Corrigan, 915 N.E.2d 300, 303 (Ohio 2009) (focusing on the applicant’s alcohol problems and his lack of candor with the Committee). Several of the lack of candor
cases involve findings that the applicant was untruthful based on refusal to admit culpability, a concept that is related to remorse; Doe v. Conn. Bar Examining Comm., 818 A.2d 14 (Conn. 2003) (finding lack of candor when applicant was unable to testify consistently about a plagiarism allegation).
21. See, e.g., In re Application of Grachanin, 912 N.E.2d 1128, 1130-31 (Ohio 2009) (finding that while applicant deserves credit for expressing remorse, he needs more time to demonstrate
that his drinking problems are under control); Martin B. v. Comm. of Bar Examiners, 661 P.2d 160,
161(Cal. 1983) (“The State Bar Court also found the 1973 false claim conviction to be indicative of
bad moral character, despite petitioner’s free admission of guilt and expression of remorse.”). But see
In re Application of Simmons, 584 N.E.2d 1159, 1160 (Ohio 1992) (“We have reviewed the record
in this case and are particularly struck, as the board was, with this applicant’s forthright confession
of and testimony about his misconduct. However, unlike the board, we are satisfied with Simmons’
regret and renewed commitment to the standards manifested by the Code of Professional Responsibility and, therefore, find nothing to be gained by allowing another year to pass before Simmons may
apply for the bar examination.”).
22. See, e.g, Application of Walker, 539 P.2d 891, 897 (Ariz. 1978) (denying admission for
failing to make disclosure of failure to register for the draft and for claiming that these acts did not
reflect on his character); Partin v. Bar of Ark., 894 S.W.2d 906 (Ark. 1995) (denying applicant for his
continued insistence on his innocence of charges for which he had been convicted); In re Application of Panepinto, 704 N.E.2d 564 (Ohio 1999) (Lunberg Stratton, J. dissenting) (“Had he admitted
to his deceptive acts, I would agree with the majority. But . . . his refusal to accept the responsibility
for these misdeeds demonstrates a deeper character flaw that cannot be cured by time. . . . A lawyer
must be honest, ethical, and above reproach. Panepinto clearly has none of these qualities. Therefore,
I would permanently deny his application to take the bar exam.”).
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Evaluating Remorse in The Bar Admission Process
41
law/norm that they violated is unjust, often leads to a finding of lack of candor-one
of the most damning factors in bar admission cases.23
In light of the importance of remorse in the character and fitness process and
the difficulty committees—and indeed all of us—face in interpreting the meaning
and value of apologetic gestures, this article develops specific guidelines that committees can use to evaluate a bar applicant’s remorse. Section II provides examples
of the inconsistent treatment of apologies and remorse in the character and fitness
context. Such impressionistic and ad hoc determinations, we believe, often misunderstand and poorly serve the purposes of the review process. Section III explains
the confusing and often contradictory meanings conveyed by apologies and how
legal contexts further complicate the functions and values expressed by remorse.
Adversarial legal environments, we explain, are not a natural habitat for repentant
gestures like remorse and apology. Following Nick Smith’s theory of the categorical
apology as defended in I Was Wrong,24 Section IV then enumerates thirteen questions that should guide review boards as they evaluate the apologies and remorse of
bar applicants. Such principles, we believe, will concentrate the reviewer’s attention
on the variables most salient to evaluating the quality of the applicant’s remorse. We
argue that such a principled framework can lend rigor and consistency to the review
process, which will, in turn, better serve both the bar and applicants to the bar.
We conclude by cautioning review committees against understanding an applicant’s remorse as serving retributive ends. The primary justification for the bar’s
moral character requirement is to protect the public, and reviewers should not understand the process as punitive in nature. If some forms of wrongdoing effectively
ban applicants from bar admission, we argue, state courts and the National Council
of Bar Examiners should name these offenses explicitly.
II. A Review of the Varying and Inconsistent Treatments
of Apologies in Character and Fitness Cases
In evaluating whether an applicant seeking bar admission has demonstrated
“good moral character and fitness to practice law,”25 character and fitness committees consider positive characteristics such as whether the applicant is able to use
good judgment on behalf of clients, to act diligently and reliably in fulfilling one’s
obligations, to use good judgment in financial dealings, and to comply with deadlines and time constraints.26 Misconduct in one’s past, such as committing criminal
acts, demonstrating financial irresponsibility, or violating academic honesty standards, can be grounds for disqualification.27
23. See Partin, 894 S.W.2d at 908-10; In re Childress, 561 N.E.2d 614 (Ill. 1990); Hallinan v.
Comm. of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966); Siegel v. Comm. of Bar Examiners,
514 P.2d 967 (Cal. 1973).
24. Nick Smith, I Was Wrong: The Meanings of Apologies (2008).
25. N.H. S. Ct. R. 42B (III).
26. N.H. S. Ct. R. 42B (VI).
27. N.H. S. Ct. R. 42B (VII). The National Conference of Bar Examiners has also set forth a
list of conduct that warrants further investigation. The list includes: “[U]nlawful conduct, academic
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To evaluate the effect of the misconduct upon the applicant’s present character and fitness, committees consider various factors in assigning weight and significance to the individual’s prior conduct. These include factors such as the age at
the time the conduct occurred, the seriousness of the conduct, the circumstances
under which the conduct occurred and its underlying factors, evidence of rehabilitation, the applicant’s candor, positive social contributions made by the applicant since the conduct, and the materiality of any omissions or misrepresentations
made by the applicant.28
The Character and Fitness Guidelines of several jurisdictions emphasize that
remorse is a significant factor to consider when evaluating whether an applicant
has demonstrated rehabilitation.29 For example, as set forth in the New Hampshire
Supreme Court Rules, “establishing sufficient rehabilitation will usually require
the applicant to recognize, appreciate, show insight into, and have genuine remorse
for the seriousness of his or her disqualifying conduct. Attempts to deny, rationalize, minimize or explain away disqualifying past behavior will usually result in
the Committee finding insufficient rehabilitation.”30 Similarly, in evaluating an applicant’s current fitness to practice law, the Pennsylvania Board of Bar Examiners
considers evidence of rehabilitation including candor and remorsefulness of the
applicant before the Board, acceptance of responsibility for and renunciation of
past misconduct, and lack of malice and ill feeling toward those who disclosed the
misconduct or initiated proceedings related thereto.31
The following cases provide a sample of how courts treat remorse in the context of bar admission. While each evaluated whether applicants with histories of
misconduct, making of false statements, including omissions, misconduct in employment, acts involving dishonesty, fraud, deceit or misrepresentation, abuse of legal process, neglect of financial
responsibilities, neglect of professional obligations, violation of an order of a court, evidence of
mental or emotional instability, evidence of drug or alcohol dependency, denial of admission to the
bar in another jurisdiction on character and fitness ground, disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction.” NCBEX Guide, supra
note 2, at viii, III, 13.
28. See N.H. S. Ct. R. 42B (XIII).
29. See, e.g., Washington State Court Rules, APR 24.2(b)(9)(v): When determining
whether past conduct disqualifies an applicant from admission to the Bar, the Character and Fitness
Board considers evidence of rehabilitation, such as the “Applicant’s attitude toward the misconduct,
including without limitation acceptance of responsibility and remorse.”; Regulations of the Connecticut Bar Examining Committee, Art. VI-5(c)(ix), When an applicant’s past conduct raises a
question as to his/her character and fitness, the Committee will take into consideration factors such
as evidence of remorse.; North Carolina Board of Law Examiners Character and Fitness
Guidelines, “An applicant who asserts rehabilitation from prior misconduct which bears adversely
upon the applicant’s character and fitness shall be required to produce clear and convincing evidence
of such rehabilitation, which may include . . . Applicant’s current attitude about prior offenses (acceptance or responsibility and renunciation of past wrongdoing and remorse).
30. N.H. S. Ct. R. 42B (XVI).
31. Pennsylvania Board of Law Examiners Bar Admissions Information Handbook
13, available at http://www.pabarexam.org/pdf/handbook.pdf.
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Evaluating Remorse in The Bar Admission Process
43
misconduct demonstrated sufficient evidence of rehabilitation to warrant admission, their analyses differ considerably.
A. Demonstrating Sufficient Rehabilitation
to Allow Admission
In a 2000 decision, the District of Columbia Court of Appeals reviewed the
recommendation of its Committee on Admissions (“Committee”) to deny Roger
Lindmark’s admission to the District of Columbia Bar.32 The Committee’s recommendation was based primarily on Lindmark’s conduct during the Pennsylvania
Bar admissions process.33 However, finding that he demonstrated “regret” for his
past misconduct, the Court granted Lindmark’s application.34
In 1990, Lindmark applied to take the Pennsylvania Bar after failing to pass
the California Bar several times.35 The Pennsylvania Bar of Examiners refused to
permit him to take the Bar, finding that his past and present behavior was “incompatible with the standards expected to be observed by members of the Bar.” This
finding was based on his law school disciplinary probation and his assertions that
his actions were proper.36 During law school in 1982, Lindmark was subjected to
disciplinary probation in connection with his effort to appeal a grade and obtain
employment.37 The dean of the law school he attended charged Lindmark with
making false allegations and statements.38 In response, Lindmark filed two lawsuits against the law school, and was physically removed from the dean’s office
after disputing a decision disallowing a course credit.39
After successfully passing the California Bar and being admitted to practice
in that state, the Pennsylvania Supreme Court granted his petition for reconsideration and ordered the Board of Law Examiners to allow him to take the Bar
examination.40 After passing the exam on his first attempt, Lindmark wrote two
letters to the Pennsylvania Board, referring to “the most unprofessional, insidious
and despicable harassment and treatment your Board has inflicted upon me.”41 The
Pennsylvania Board denied Lindmark’s Bar admission, citing his “intemperate and
unprofessional conduct, including unfounded accusations against the Board.”42
The District of Columbia Review Committee considered the proceedings
before the Pennsylvania Board as well as Lindmark’s law school discipline. The
Committee denied his application and stated:
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
3058-131_02Simon-1pass-r03.indd 43
In re Lindmark, 747 A.2d 1148, 1149 (D.C. 2000).
Id.
Id. at 1153.
Id. at 1149, n. 1.
Id.
Id. at 1150, n. 2.
Id.
Id.
Id.
Id.
Id.
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Mr. Lindmark . . . refused to recognize that his actions were wrong, even
after a judge ruled that the dean’s factual allegations were true. Instead,
his testimony sought to evade the issue, as he repeatedly (and unconvincingly) claimed not to be able to identify the factual statements to which
the Court referred. His lack of candor about the Court’s ruling shows that
his ability to confront unfavorable findings about his own conduct remains problematic. Moreover, his efforts to dismiss the incidents that led
to his disciplinary probation as the equivalent of a parking ticket betray a
fundamental lack of appreciation for the seriousness of his lies.43
Thus, the Pennsylvania Board and District of Columbia Review Committee agreed:
Lindmark lacked remorse and was unfit for admission to the bar.
In considering Lindmark’s case, the D.C. Court of Appeals noted that “we
have granted admission in the past where a long period of time has elapsed since
the applicant’s bad behavior, and the record contains evidence of rehabilitation and
remorse.”44 The Court found that “in light of the passage of time and Lindmark’s
more favorable recent record,45 we conclude that his most unfortunate conduct as
a law student and as an applicant for admission to the Bar of Pennsylvania does
not warrant denial of his current application.”46 Noting that during oral argument
he admitted that his letter to the Pennsylvania Bar was “intemperate, [and] a dumb
thing to do” and that he expressed regret for the “unprofessional and inappropriate” words he used in his letters to the Pennsylvania Board, the Court granted
Lindmark’s application for admission.47
Thus, despite a record of misconduct that included hostility toward the dean
of his law school and intemperate accusations directed against the Pennsylvania
Board of Law Examiners, the D.C. Court of Appeals Committee on Admissions
found Lindmark’s mere description of his previous actions as a “dumb thing to do”
apparently carried considerable weight. A few contrite words from the applicant
appear to have led the Court to disagree with the findings of both the District of
Columbia Review Committee and the Pennsylvania Board of Law Examiners and
find the applicant remorseful and rehabilitated. We can begin to appreciate here the
rather and vague and inconsistent precedents available to reviewing committees.
B. Rehabilitation Not Established
1. Severity of the Crime Outweighs Rehabilitation
In another District of Columbia Court of Appeals decision, the Court denied
bar admission to an applicant who had been convicted of a felony, finding that the
43. Id. at 1150.
44. Id. at 1152.
45. In support of his application for admission, Mr. Lindmark submitted eighteen letters of
reference attesting to his good character and status of good standing as a member of the California
Bar. Id. at 1150-51.
46. Id.
47. Id. at 1153.
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Evaluating Remorse in The Bar Admission Process
45
applicant had not “reformed himself to the point that he now possesses the good
moral character required for admission to the Bar.”48 John Dortch was convicted in
1975 of second-degree murder, attempted armed robbery, and conspiracy.49
In 1974, Dortch was a married twenty-nine year old college graduate and
Vietnam veteran.50 He started his own insurance business with the help of investors.51 When the business failed, Dortch “hatched a bizarre plot to repay his investors with the proceeds of a bank robbery.”52 To carry out this plot, Dortch enlisted
at least six confederates from among his business or social acquaintances.53 Dortch
and a co-conspirator drove to the vicinity of the savings and loan.54 Disguised as
construction workers, the pair carried a tool bag containing sawed-off shotguns
and other firearms that Dortch had supplied.55 Unbeknownst to Dortch, the police
had been tipped off and were waiting for them.56 Two plainclothes officers stopped
them on the street when they exited their car and directed Dortch to bring the
tool bag to a police cruiser parked nearby.57 Dortch removed one of the sawedoff shotguns and approached the police cruiser with it.58 An officer reached for
the weapon and it accidentally discharged.59 Although no one was injured, Dortch
and his accomplice fled in opposite directions.60 One of the officers fired shots at
the fleeing suspects.61 According to the officers’ testimony at the subsequent trial,
Dortch turned and fired back.62 Dortch discarded his construction-worker uniform
and escaped without further incident.63 Later that day, however, Dortch learned that
his accomplice had shot and killed Police Officer Gail Cobb, who had confronted
the accomplice in a parking garage as he was removing his disguise.64
The following morning, Dortch surrendered himself to the police.65 He pled
guilty to second-degree murder, attempted armed robbery and conspiracy and was
sentenced to concurrent sentences of fifteen years to life in prison on the first two
charges and five years in prison on the conspiracy charge.66 The Court rejected
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
3058-131_02Simon-1pass-r03.indd 45
In re Dortch, 860 A.2d 346 (D.C. 2004).
Id. at 348.
Id. at 349.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 350.
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Journal of The Professional Lawyer
Dortch’s request for probation.67 He filed two unsuccessful motions to reduce his
sentence and three successive, unsuccessful motions to withdraw his guilty plea or
set aside his sentence.68 Among other things, Dortch alleged that he was coerced
and misled into tendering an involuntary and incompetent guilty plea.69 He also
claimed that had decided not to proceed with the robbery and was returning the bag
of firearms to his car when the police stopped him.70 He asserted that if the police
officers had not “overreacted,” “Officer Cobb would be alive today.”71
Only a few months after his release from prison, Dortch applied for admission
to the District of Columbia Law School.72 He disclosed his criminal record on his
application in response to a question that asked him to describe “a specific personal
experience” in which he was “subjected to or witnessed some significant form of
injustice.”73 Dortch answered this question by depicting his own prosecution as an
“injustice,” an “abortion of justice” that he had “suffered.”74
The District of Columbia Law School accepted Dortch as a student.75 He performed well in law school and was awarded the Dean’s Cup for outstanding community service, was elected president of the Student Bar Association, and was
selected by his classmates to deliver the 1994 law school commencement address.76
Following graduation, Dortch served as an adjunct professor at the law school and
worked as a paralegal in a law firm.77 In the fall of 1998, Dortch began working
with the Time Dollar Youth Court, a diversion program for first-time juvenile offenders. He eventually became the director of the program.78 In 2001, Dortch was
67.
68.
69.
70.
71.
72.
73.
74.
Id.
Id.
Id.
Id.
Id.
Id. at 350-51.
Id. at 351.
Id. In his law school application, Dortch wrote:
I am an ex-offender, and I have witnessed and experienced improprieties in the administration of justice. By virtue of a guilty plea, I was convicted of second degree murder,
attempted bank robbery, and conspiracy, and I served fifteen years in prison. I did not kill
anyone nor did I attempt to kill anyone nor was I present at the scene of the homicide,
but the alleged factual basis for my plea was predicated upon the felony murder concept,
which stipulates that each conspirator is equally accountable for every and anything that
transpires in the furtherance of a felony, even though he may not participate in the overt
act. The injustice that I suffered was at the hands of both the defense counsel, whom
I paid in advance, and the prosecution, which condoned, if not encouraged, the perjurious
testimonies of the complaining officers.
However, I am not bitter, because I did break the law, but not to the extent to which
I was charged and prosecuted. The bottom line is that I did break the law, and had not I
broken the law, I would not have been vulnerable to an abortion of justice.
75.
76.
77.
78.
Id.
Id.
Id.
Id.
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Evaluating Remorse in The Bar Admission Process
47
appointed Director of the Violence Free Zone Initiative of the National Center for
Neighborhood Enterprise.79
In 1995 and 1996, Dortch passed bar examinations in the District of Columbia, Maryland, and West Virginia, and he applied for admission to the bar in all
three jurisdictions.80 In so doing, Dortch fully disclosed his criminal convictions.81
While Dortch emphasized on his application in the District of Columbia “that I
neither killed anyone nor was I at the scene where the homicide took place,” he
readily acknowledged that he had “orchestrated a conspiracy to commit an armed
robbery.”82 Dortch also expressed his contrition in his live testimony before the Admissions Committee (“Committee”), which concluded that he “appeared sincere in
expressing remorse and in accepting responsibility for his criminal actions.”83 The
Committee did not explain the factors used to evaluate Dortch’s sincerity.
The Committee held Dortch’s application in abeyance pending the outcome
of the Maryland and West Virginia proceedings.84 In January 1997, the Court of
Appeals of Maryland rejected Dortch’s application as “premature” because he had
not yet been released from parole.85 A few months later the Supreme Court of Appeals of West Virginia denied Dortch’s application on its merits.86 Although the
Court acknowledged Dortch’s “candor in admitting his guilt and responsibility in
the death of Officer Cobb” and other evidence demonstrating that Dortch may have
been rehabilitated, . . . “the horrendous crime of which he was the prime conspirator outweighs his present good deeds.”87
Following the decisions in Maryland and West Virginia, and after conducting
three days of hearings, the Committee in the District of Columbia was unanimous
in concluding that Mr. Dortch had not met his burden of proof and in recommending that his application be denied.88
In reviewing the Committee’s recommendations, the D.C. Court applies a “totality of circumstances” test of whether the applicant, at time of application, had
the good moral character necessary for admission to the Bar.89 To evaluate the
moral fitness of applicants with criminal backgrounds, the Court considers the following rehabilitation factors:
1. The nature and character of the offenses committed.
2. The number and duration of offenses.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
3058-131_02Simon-1pass-r03.indd 47
Id.
Id. at 352.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 353 (citing In re Dortch, 486 S.E.2d 311, 321 (W. Va. 1997)).
Id. at 354.
Id. (citing In re Manville, 538 A.2d 1128, 1132 (D.C.1988) (en banc) (“Manville II”)).
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Journal of The Professional Lawyer
3. The age and maturity of the applicant when the offenses were committed.
4. The social and historical context in which the offenses were committed.
5. The sufficiency of the punishment undergone and restitution made in
connection with the offenses.
6. The grant or denial of a pardon for offenses committed.
7. The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period.
8. The applicant’s current attitude about the prior offenses (e.g., acceptance
of responsibility for and renunciation of past wrongdoing, and remorse).
9. The applicant’s candor, sincerity and full disclosure in the filings and
proceedings on character and fitness.
10. The applicant’s constructive activities and accomplishments subsequent
to the criminal convictions.
11. The opinions of character witnesses about the applicant’s moral fitness.90
The Court was guided by the principle that “the more serious the misconduct, the
greater the showing of rehabilitation that will be required. . . . [and] in the case of
extremely damning past misconduct, a showing of rehabilitation may be virtually
impossible to make.”91
The Court concluded that the first four factors weighed heavily against
Dortch.92 As the Court explained, “[t]his case is not about the forgivable foibles
of an applicant’s callow youth. . . . Rather, the opposite is the case: Dortch was
twenty-nine years old, married, a father, a college graduate, a Vietnam veteran,
and an experienced and accomplished businessman. Dortch’s moral character was
not still in formation, and he was not without adequate resources to choose from a
variety of paths of conduct other than the fatal path he selected.”93
As to the fifth factor, the Court considered the sufficiency of Dortch’s punishment and his efforts to make restitution for his wrongdoing.94 Assuming that
Dortch’s fifteen-year prison sentence adequately reflected the severity of his offense, the Court focused on the fact that:
[I]n all the years since his conviction, Dortch has done nothing tangible
to help, nor has he offered to help, those still living whom he permanently
and deeply harmed by his criminal enterprise: Officer Cobb’s family, his
confederates, and their families. We appreciate that extending such help
might have entailed special effort and even personal sacrifice on Dortch’s
part. That is one of the reasons why it would have been a meaningful
thing to do. It is easy to express remorse, but substantiation of that remorse through acts of restitution seems appropriate in a situation such
90.
91.
92.
93.
94.
Id. at 356 (citing Manville II, 538 A.2d at 1133 n. 4).
Id. at 357 (quoting In re Matthews, 462 A.2d 165, 176 (N.J. 1983)).
Id. at 359.
Id.
Id.
3058-131_02Simon-1pass-r03.indd 48
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Evaluating Remorse in The Bar Admission Process
49
as this one. Dortch’s failure to make restitution undermines his claim of
moral regeneration.95
Regarding the sixth and seventh factors, the Court noted that although Dortch
had not engaged in any misconduct in the thirty years since the failed armed robbery, “[p]assage of time alone is insufficient to warrant admission.96 Analyzing the
eighth and ninth factors, the Court considered Dortch’s “current attitude” about
his offenses, his acceptance of responsibility, renunciation of past wrongdoing,
remorse, and his “candor, sincerity and full disclosure” in the admission proceedings.97 The Court noted that the Committee heard directly from Dortch, questioned
him, and ultimately credited his current statements of responsibility and remorse.98
It is unclear whether he explicitly accepted blame for the murder as well as the attempted robbery.
Nevertheless, the Court expressed its “remaining doubts about the depth and
consistency of Dortch’s acceptance of responsibility and remorse.”99 Again, the
Court emphasized the fact that Dortch did not attempt to help Officer Cobb’s family or to atone to the accomplices whom he enticed into joining his criminal plot.100
It also noted that “we are taken aback by the disingenuous and self-justifying statements that Dortch made,” in moving to withdraw his guilty plea and in applying
to law school, such as his characterization of his conviction as an “abortion of
justice.”101
Using its “honest discretion and rational good judgment” to evaluate the “totality of the circumstances,” the Court noted that “[w]e possess no supernatural
ability to look into an applicant’s heart. Rather, we must divine what we need to
know from the applicant’s actions and outward manifestations.”102 Given the “extremely damning” character of his crimes, the Court determined that Dortch had
the burden to make an exceptionally compelling showing of his full and complete
rehabilitation to assure the Court of his present good moral character.103 The Court
concluded that Dortch did not make so compelling a showing.104 In denying his
application, the Court explained that Dortch failed to demonstrate “a substantial
record of personal sacrifice, outstanding service to others, or similar expiative and
ethical behavior on Dortch’s part that would tend to confirm his indisputable moral
regeneration.”105 Rather, “Dortch’s failure to make restitution—to offer help, for
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
3058-131_02Simon-1pass-r03.indd 49
Id.
Id. at 359-60.
Id. at 360.
Id.
Id.
Id.
Id.
Id. at 361.
Id.
Id.
Id.
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Journal of The Professional Lawyer
example, to Officer Cobb’s surviving family—seriously undermines his claim that
he is fully rehabilitated.”106
In an Arizona case involving a similarly serious crime—attempted murder—
the Court refused to admit an applicant, despite considerable evidence of rehabilitation.107 In 1977, Lee Keller King, a peace officer, was upset because he had
been “passed over” for a full-time deputy constable position.108 While off duty and
out of uniform, King went to a neighborhood bar, became highly intoxicated and
argued with two male acquaintances. After leaving the bar, King used his semiautomatic service weapon to shoot each man several times at close range.109 Both
victims survived.110 After serving a suspended prison sentence, King graduated
from college and law school, passed the Texas bar examination, and was found
to possess the requisite good moral character to practice law in Texas in 1994.111
He practiced law in Texas without incurring any disciplinary charges, he married,
adopted his wife’s child, and the couple had two additional children.112
In 2003, King moved to Arizona to work in his law firm’s Phoenix-area office.
He passed the Arizona bar examination and submitted his Character and Fitness
Report to the Committee on Character and Fitness.113 After conducting an evidentiary hearing, the Committee recommended that the Court deny King’s application for admission.114 The Committee concluded that although King had presented
strong evidence of rehabilitation and positive social contributions since the shootings, the Committee was unable to overlook the seriousness of his crime.115 King
obtained counsel and re-applied six months later to the Committee. This Committee, which had changed members, recommended King’s admission to the bar,
without issuing an opinion explaining its decision.116
In its evaluation of King’s application, the Arizona Court explained that the
“burden of demonstrating complete rehabilitation is determined by the gravity
of the past criminal conduct. The more serious the unlawful act, the greater the
burden.”117 Because “King’s misconduct tips the scales against admission at the
outset,” he must “produce an extraordinary amount or quality of evidence to meet
his burden of proof.”118 Therefore, to prove complete rehabilitation, “King must
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
Id.
In re King, 136 P.3d 878 (2006).
Id. at 880.
Id.
Id.
Id. at 881.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
3058-131_02Simon-1pass-r03.indd 50
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Evaluating Remorse in The Bar Admission Process
51
establish that he has both (1) accepted responsibility for his past criminal conduct,
and (2) identified and overcome the weakness that led to the unlawful conduct.”119
The Court found that evidence in the record both supported and negated
King’s contention that he has accepted responsibility for the 1977 shootings.120
King demonstrated his acceptance by informing judges, lawyers, law professors,
former employers, friends, acquaintances, and colleagues of his crime over an extended period of time, “impressing upon many of them heartfelt feelings of remorse” and in both hearings before the Committee, King admitted shooting the
victims and expressed remorse, calling the shootings “a mistake I made that I will
carry with me for the rest of my life.”121 However, the Court also found that in his
written applications for admission to law school, to the Arizona Bar, and the Court,
King minimized his personal responsibility for the shootings by explaining that
due to the lack of any witnesses, his strained emotional state, and anti-police sentiment, it was in his best interests to plead guilty to one charge and “throw [himself]
on the mercy of the Court rather than to attempt to clear [himself] in a jury trial.”122
The Court was “left with the impression that King intended his readers to infer
that he had a defense to the shootings but chose to plead guilty to one charge after
weighing his chances for success.” It concluded that King expressed no remorse
and that his excuses were inconsistent with the notion of acceptance of responsibility.123 The Court also determined that King failed to satisfy the second prong of the
rehabilitation test—identifying the weakness that caused him to engage in criminal
misconduct and then demonstrating that he has overcome that weakness because
“nothing illuminates why King lacked appropriate skills to cope with stress or
abused alcohol during the pertinent period of his life. Without such knowledge, we
cannot be assured that King has appropriately addressed and overcome the weakness leading to his criminal misconduct.”124 Thus, the Court refused to adopt the
Committee’s recommendation that King be admitted to the Bar.
2. Lacking Remorse—a Clear Case
Lack of remorse and failure to accept responsibility for misconduct was clearly
the basis of the Georgia Supreme Court’s denial of Willie Jay White’s bar application. White had intentionally submitted a wholly plagiarized paper in his advanced
torts class at the end of his second year of law school.125 During an investigation,
which included informal interviews with White, the Board to Determine Fitness
of Bar Applicants (“Board”) became concerned with White’s lack of candor during the fitness application process.126 Because White refused to fully explain his
119.
120.
121.
122.
123.
124.
125.
126.
3058-131_02Simon-1pass-r03.indd 51
Id. at 883 (citations and quotations omitted).
Id.
Id.
Id.
Id. at 883-84.
Id. at 885.
In re White, 656 S.E.2d 527, 528 (Ga. 2008).
Id. at 527.
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Journal of The Professional Lawyer
conduct to the Board, despite multiple opportunities to do so, White’s certification
of fitness to practice law was tentatively denied.127 At a formal hearing that White
requested, he again failed to offer any credible explanation for his plagiarism and
“despite the overwhelming evidence to the contrary, was either unwilling or unable to admit” that he deliberately reproduced sections of five previously published
works and submitted it as his own work.128 The Court agreed with the hearing officer’s determination that “White’s explanation of the plagiarism incident was not
credible, that he had not yet accepted full responsibility for his actions, and that
he did not currently possess the character and fitness required of a prospective
member of the State Bar.”129 The Court concluded that White had failed to offer a
plausible explanation of his actions. As a result, he has never accepted full responsibility for what he did, and he has not yet been rehabilitated.”130
3. A Court Divided
In a more difficult decision, a divided Illinois Supreme Court reviewed the
request for bar admission of an applicant, Jerome Krule, who had been convicted
of insurance fraud.131 The majority ultimately denied the application, finding that
Krule’s proof of good character and remorse did not outweigh the gravity of his
past conduct.132 However, in a dissenting opinion, one judge opined that the applicant had sufficiently demonstrated rehabilitation.133
Krule graduated from law school in 1994 and in 1995 the Committee on Character and Fitness voted not to recommend his admission to the Illinois Bar.134 This
decision was based on Krule’s involvement in an insurance fraud scheme, which
resulted in a felony conviction in 1988.135 The Committee determined that Krule
was not candid in describing his involvement in the scheme, that he did not demonstrate his rehabilitation, and that he lacked candor in failing to inform his law
school of three previous misdemeanor convictions.136
During a hearing before the Committee in 1999, Krule testified that he had
played a “major role” in the fraud scheme and expressed remorse for his illegal
conduct and failure to report the misdemeanor convictions when he applied to law
school.137 He presented seven character witnesses, including a judge, who testified
that Krule spoke with “agonizing candor” about his past difficulties, that he acknowledged he made serious mistakes in his past, and that he showed a great deal
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
Id. at 527-28.
Id. at 528.
Id.
Id.
In re Krule, 741 N.E.2d 259 (Ill. 2000).
Id. at 265.
Id. at 266-72.
Id. at 260.
Id.
Id.
Id. at 261.
3058-131_02Simon-1pass-r03.indd 52
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Evaluating Remorse in The Bar Admission Process
53
of remorse for his past misconduct.138 The witnesses also testified to Krule’s community service with the Evanston Community Defender Office, which provided
free legal and social work services to low income residents under the age of 21 and
with a local school district, where he served as a volunteer tutor.139 In evaluating
Krule’s application, the Court stated that
Krule professed that he was sorry and had changed, but the Committee
believed that his words and actions may have been designed simply to
satisfy the requirements of bar admission. Moreover, to the extent Krule
was remorseful, the Committee believed that it may have been remorse
that his conduct interfered with his bar admission rather than a genuine
appreciation for how his illegal conduct affected others.140
The Court was concerned that Krule committed fraud when he was an adult in
the context of circumstances comparable to those he might face as an attorney.141
Therefore, the Court concluded that Krule’s past conduct evinced an inability for
him to carry out his professional responsibilities honestly.142 It further determined
that “[a]s impressive as Krule’s character references and public service may be,
an applicant’s subsequent exemplary behavior cannot lessen the enormity of an
earlier offense.”143 In denying his application for admission, the Court found that
Krule had failed to persuade it that he would not repeat his conduct, and therefore,
admission would “deprecate the seriousness of his crime.”144
In a separate concurrence, one judge cited a 1990 case in which an applicant
who had been convicted of rape and robbery 16 years earlier applied for admission to the Illinois Bar long after his release from prison. Observing that a felony
conviction will not automatically preclude an applicant’s admission to the bar, the
Court explained:
It is clear, however, that the degree of rehabilitation that must be established to warrant admission . . . will depend in large measure on the
nature of the wrong committed. Just as a disbarred attorney’s subsequent
exemplary behavior will not mitigate the seriousness of his misconduct,
so too will an applicant’s subsequent exemplary behavior fail to lessen
the enormity of an earlier offense.145
The concurrence delineated the considerations in this case that he deemed most
relevant:
138.
139.
140.
141.
142.
143.
144.
145.
3058-131_02Simon-1pass-r03.indd 53
Id. at 261-62, 268.
Id. at 268.
Id. at 264.
Id.
Id.
Id. at 265.
Id.
Id. at 266 (citations omitted).
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Journal of The Professional Lawyer
The petitioner was involved in an extensive, fraudulent scheme, and he
played an active role in the commission of those offenses. Moreover, the
petitioner was 45 years old at the time of his involvement; thus, his offenses were not youthful indiscretions, but the work of a mature adult,
and they were closely related to what was then his career in insurance.
Also, the petitioner, who applied to and was accepted by his law school
after these offenses, was not completely candid to the school about this
misconduct and, separately, failed to report on his law school application
three prior misdemeanor charges, two of which resulted in guilty pleas.146
In a dissent from the majority’s opinion, one judge questioned:
What more could [Krule] have done that he did not already do to enable
him to be allowed the privilege to practice law? Stated otherwise, is there
anything petitioner failed to do to justify refusing him a license to practice law. The majority does not answer this essential question. Instead, in
denying Krule’s admission application, my colleagues appear to singlemindedly focus upon the seriousness of petitioner’s past offense, to the
virtual exclusion of the ample amount of positive evidence presented in
petitioner’s favor during the Committee hearing.147
Noting that “[i]t is axiomatic that the seriousness of petitioner’s crime remains
constant,” the dissenting judge explained that:
It is precisely because the gravity of the offense will be the same 10, 15,
or 20 years henceforth—and forevermore—that this Court has looked to
factors in addition to the seriousness of the crime committed to determine
whether an applicant has been sufficiently rehabilitated to be admitted to
the practice of law. In other words, we must consider the seriousness of
petitioner’s offense against the backdrop of the various indicia of rehabilitation of character and fitness. The egregious conduct of petitioner,
though deserving of considerable weight, should not be the overriding
factor in assessing petitioner’s fitness to practice law.
The judge noted that on several occasions during his hearing, Krule expressed
remorse for his past misconduct.148 Krule testified that he had “moved in every
possible direction to correct that type of behavior and to make sure that it won’t
happen again.”149 According to Krule, his motivation for cooperating with the authorities during the insurance scheme prosecution was to “try and correct some of
the harm that I did and put an end to it also.”150 He also stated that by performing
146.
147.
148.
149.
150.
Id.
Id. at 267.
Id. at 269.
Id.
Id.
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Evaluating Remorse in The Bar Admission Process
55
his present volunteer community service, “I’ve tried to correct what I did or do
what I can to correct what I did.”151 Although petitioner stated that he realized that
he cannot “erase” his past misconduct, he testified that “I can do everything in my
power to change myself, which I have tried to do, tried to grow and develop in
another direction totally, and I’m very sorry for what I did.”152
The dissenting judge criticized the majority for its “unsupported and speculative conclusions” with respect to the motivation and sincerity of Krule’s candor in
acknowledging responsibility for his role in the insurance scheme and his remorse
for his past misconduct.153 In conclusion, the judge remarked:
The decision of the majority to deny petitioner’s application, despite the
fact that the record contains substantial, uncontradicted evidence of petitioner’s rehabilitation and present good moral character and fitness to
practice law, leads me to the conclusion that, in this case, the majority has
determined that regardless of the amount of positive evidence presented
in petitioner’s favor, the nature of petitioner’s offense automatically precludes his admission to the bar.154
4. Does Remorse Really Matter? Ohio’s Inconsistent
Treatment of Remorse
Remorse and acceptance of responsibility were significant factors in two
Ohio Supreme Court cases. While the Court reached the same decision in both
cases, its analysis regarding remorse was entirely inconsistent. In 1999, Alexander
Bagne was denied admission to the Michigan Bar because he did not consistently
account for a crime he committed in 1991.155 When he was 19 years old, Bagne
was accused of shooting a jogger in the neck with a BB gun while he and a friend
were joy riding and Bagne shot the BB gun randomly from the passenger side of
the car.156 Bagne insisted that the shooting was accidental.157 The Michigan Board
of Law Examiners (“Board”) doubted Bagne’s credibility and candor during three
separate character and fitness hearings.158 The Board found that Bagne appeared
to be “willing to say anything for the sake of approval” and “attempt[ed] to create
false impressions as to the seriousness of and his responsibility for his crime.”159
The Board was particularly troubled by a change in Bagne’s testimony during the
third hearing, when he proposed for the first time that the driver of the car, who
had died before the hearing, might actually have fired the shot that struck the
151.
152.
153.
154.
155.
156.
157.
158.
159.
3058-131_02Simon-1pass-r03.indd 55
Id. at 269-70.
Id. at 270.
Id. at 271.
Id. at 272.
In re Application of Bagne, 808 N.E.2d 372, 373 (Ohio 2004).
Id. at 372.
Id. at 373.
Id.
Id.
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Journal of The Professional Lawyer
jogger.160 During a hearing, Bagne corrected his own witness as to the degree of
his responsibility for shooting the jogger and blamed his attorney for advising him
to suggest that he might not have been completely responsible for the jogger’s
injury.161 The Board found that Bagne had a fairly cavalier absence of remorse for
his victim, whom he had never met, implying on one occasion that the jogger’s injuries were insignificant because after the shooting, she had been able to jog back
to her house before going to the hospital.162 In denying his application, the Board
concluded that Bagne “seemed unwilling to consistently tell the truth or genuinely
accept the consequences for his acts.”163
In reviewing Bagne’s pending application to the Ohio Bar, the Ohio Board of
Commissioners on Character and Fitness noted that “[d]espite the fact that the conduct was very serious and injured the jogger, . . . the Board is more troubled by the
candor and credibility of the applicant concerning the incident.”164 Accordingly,
the Ohio Board recommended that Bagne’s application be denied, but allowed him
to reapply in several years.165 The Ohio Supreme Court agreed and adopted these
recommendations.166 In doing so, the Court implied that if Bagne would candidly
acknowledge his responsibility for his conduct and express remorse for his acts, he
would satisfy the good character requirement for Bar admission.
More recently, the same Court did not credit another applicant’s “genuine”
expression of remorse and acceptance of responsibility.167 The Ohio Board of
Commissioners on Character and Fitness recommended that applicant, Nathan J.
Kohler, be disapproved for Bar admission and that he not be permitted to reapply
as a candidate for the bar for two years because he deceived partners and clients
of the law firm where he formerly worked as a law clerk.168 Kohler misled clients
and his supervisor by repeatedly lying in response to requests for status reports.169
He fabricated documents, including a court order, complete with a forged signature
purporting to be that of the bankruptcy court clerk.170 Eventually, Kohler confessed
his inaction and misrepresentations to the firm.171
During a hearing, the Board found that:
Mr. Kohler was more honest and direct. He admitted he had done the
‘wrong thing.’ He admitted that when he missed the deadline for filing
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
Id.
Id. at 374.
Id.
Id.
Id. at 375.
Id.
Id.
In re Application of Kohler, 873 N.E.2d 818 (Ohio 2007).
Id. at 819.
Id.
Id. at 819-20.
Id. at 820.
3058-131_02Simon-1pass-r03.indd 56
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Evaluating Remorse in The Bar Admission Process
57
under the prior bankruptcy law, he knew that he should have advised
the clients and the law firm. He admitted that he had no good excuse for
his egregious behavior. While Mr. Kohler noted that, at the time, he felt
overwhelmed by his family responsibilities, his work obligations, and the
pressures of taking and retaking the bar exam, he also acknowledged that
none of these justified what he did.172
Although the Court determined that “Kohler has recognized the gravity of his transgressions and has shown overwhelming contrition,” it ultimately accepted the Board’s
recommendation to deny his application.173 However, the Court concluded that
“[b]ecause Kohler, with genuine remorse, accepted the consequences of his mistakes,
we believe that he may yet establish that he has the character, fitness, and moral
qualifications to practice law,” and permitted him to reapply for Bar admission.
The effect of expressing remorse and accepting responsibility remains unclear
when examining the Bagne and Kohler cases. Both applicants suffered the same
fate—denial of their bar applications with permission to reapply—although one
applicant was found to lack candor and credibility, while the other was candid and
remorseful.
C. Confounding Precedents
Reviewers and bar applicants alike should wonder whether consistent principles underlie these decisions. In Lindmark, the applicant’s superficial recognition
that his actions were “a dumb thing to do”—an admission he offered for the first
time at oral argument before the Court—was deemed sufficient to show sincere
remorse.174 Yet in Krule, the majority rejected the factual findings of its Committee and found substantial expressions of remorse insufficient despite the fact that
seven character witnesses—including a judge—supported Krule and testified that
he spoke with “agonizing candor” about his past difficulties, that he acknowledged
he made serious mistakes in his past, and that he showed a great deal of remorse
for his past misconduct.175
The crime in Krule—insurance fraud by a mature person176—was more severe
than the noncriminal conduct exhibited by Lindmark and this could, in part, account for the differences in treatment of the cases. The Dortch case provides some
support for this distinction. In that case, the Court held that given the severity of
the crime, the applicant needed to do more than utter apologetic words and reform
behavior.177 Only direct assistance to the family of the police officer killed in the
underlying matter, the Court suggested, would demonstrate sufficient remorse.178
172.
173.
174.
175.
176.
177.
178.
3058-131_02Simon-1pass-r03.indd 57
Id.
Id. at 821.
In re Lindmark, 747 A.2d at 1153.
In re Krule, 741 N.E.2d at 261-64, 268.
Id. at 260.
In re Dortch, 860 A.2d at 360.
Id.
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Journal of The Professional Lawyer
However, a close review of the opinions and comparison of the dissenting and
majority opinions in Krule suggest that courts and committees, with the best of
intentions and in good faith, may be using little more than impressionistic and ad
hoc notions to make judgments about the character of bar applicants. Although the
proportion of applicants denied admission to the Bar because of character issues is
relatively small,179 these are career-defining decisions for applicants. Character decisions relying upon “unnamed and tangled impressions . . . which may lie beneath
consciousness”180 run serious risks of error and inconsistency. These determinations may be devastating to an applicant’s goals, livelihood, and reputation.181 Even
a temporary delay in bar admission may indicate to colleagues that a recent law
graduate has character problems.182 In addition, the community may be denied the
service of an accomplished and dedicated individual who, despite past mistakes,
now may be more committed than others to promoting justice.183
In light of the mixed messages sent by these published opinions, we propose
standards that might help reviewing bodies reach principled and reliable judgments
on a bar applicant’s remorse and rehabilitation.
III. The Meaning of Apologies
The preceding review of court rules and cases applying standards for character
and fitness reviews demonstrates, we believe, considerable inconsistency regarding both the purpose of such proceedings and the means of evaluating the records.
Although states provide reviewing bodies with carefully enumerated indicia for
evaluating the character and fitness of applicants, such determinations typically
rest on judgments of whether the applicant has undergone a genuine “transformation” since the time of the offense. Often these high stakes determinations regarding whether applicants will be allowed to pursue their career of choice, in which
they have invested considerable time and expense, turn on the answer to one central question: Is the applicant genuinely remorseful? The quality of the apology
often becomes the primary window into the quality of the applicant’s person and
her capacity to serve the profession with honor.
Evaluating apologies and remorse can prove quite complicated even in the
simplest situations between individuals who know each other quite well. Determining whether a bar applicant has experienced a change of heart asks a great
deal of reviewing bodies, especially considering the various aspects of such con179. See Rhode, supra note 2, at 516 (stating that one in five hundred applicants from fortyone states in 1982 were denied admission for character and fitness reasons); The Ohio Bar reports
that in 2005, of 1465 applicants to the Bar, eight received adverse determinations and seven received
admission with qualification. Character and Fitness Determinations, available at http://www.supremecourt.ohio.gov/AttySvcs/admissions/cfstats/default.asp.
180. Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 248 (1957).
181. Carr, supra note 16, at 370.
182. Id.
183. Id.
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texts that produce a reasonable skepticism regarding the authenticity of contrition
from would-be lawyers within such institutional proceedings. How might reviewing bodies make good judgments about the meanings of an applicant’s remorse?
How can we distinguish between the sorts of apologies and remorse that indicate
genuine reform and promise for principled careers of service to the community and
those that intend to game the system by providing the mere appearance of apology
and remorse?
In 2008 one of the co-authors published I Was Wrong: The Meanings of Apologies, which provides a theoretical framework for the meanings of apologies from
individuals and collectives.184 Discussing numerous examples from ancient and
recent history, I Was Wrong argues that we suffer from considerable confusion
about the moral meanings and social functions of these complex interactions—just
as the cases discussed above demonstrate. Rather than asking the binary question
of whether a speech act “is or is not” an apology, I Was Wrong attempts to account
for the many ways that acts of contrition succeed or fail to achieve various diverse
objectives. This book leads readers though a series of interdisciplinary questions,
arguing that apologies have evolved from a confluence of diverse cultural and religious practices that do not translate easily into pluralistic secular discourse, and
makes the case for a robust core of moral meaning in a “Categorical Apology.”
We believe this notion of categorical apology can provide a helpful framework for
applicants seeking to provide meaningful expressions of remorse as well as for
reviewing bodies charged with evaluating such records.
From this research, I Was Wrong identified distinct spheres of apologetic
meaning. The book considers a wide variety of apologetic meanings and warns
against thinking of apologies in binary “all or nothing” terms, but the following
benchmarks guide the standards for categorical apologies and can serve as touchstones for our thinking about apologies in law. Categorical apologies, which we
understand as a regulative ideal for acts of contrition, address the thirteen concerns
listed below. Conceived as such, categorical apologies are demanding ethical acts
indicating a kind of transformation that resonates with thick conceptions of repentance within religious traditions. The categorical apology is a robust, painstaking,
and formal arrangement of remorseful meanings and as such we posit this standard
as appropriately rigorous for the bar admission context.185
184. Smith, supra note 24.
185. For a discussion of the methodological commitments underlying our conception of apologetic meanings, see Smith, supra note 24, at 17-27. Notions of remorse, apology, and character
present rich, complex, and intertwined theoretical terms. In the context of bar admission, remorse
is typically understood as the primary indicator of an applicant’s character yet little guidance exists
regarding what this complex term means and what it is meant to measure. We explain in this paper
that reviewers would benefit from parsing the analytic distinctions between these terms in order to
evaluate with greater precision the sorts of behaviors and attitudes that help to predict an applicant’s
ability to practice law according to the bar’s ethical standards. In our view, an applicant’s apologetic
behaviors as specifically outlined in this paper provide more accurate and fine-grained insight into
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Before outlining our framework for evaluating expressions of remorse in
character and fitness, we should appreciate just how foreign and conflicted apologies can seem in the practice of law in the contemporary United States, especially
to aspiring attorneys who are often young and recently graduated from law school.
We should appreciate the mixed messages we send to our students as we train them
in the largely adversarial methods, yet expect them to adopt a conciliatory attitude
during what can be a fight for the life of their legal career.
Apologies within legal contexts are nuanced and often in law pull in opposite
directions.186 On the one hand, apologies seem entirely out of place in most modern
legal contexts. What we describe as categorical apologies admit guilt. Whether in
criminal hearings, corporate settlement negotiations, or malpractice litigation, admitting guilt can amount to complete legal defeat. Providing a categorical apology
within an adversarial justice system can amount to legal suicide.187 For these reasons, some medical malpractice insurers will void their policies if doctors provide
too many details to injured patients.188 Criminal defense attorneys, likewise, will
strongly advise their clients to resist apologizing to their victims, even if they feel
a moral compunction to “come clean” early in the proceedings. Corporate executives and directors of various institutions resist apologizing not only because they
fear personal exposure to liability, but also because they risk breaching fiduciary
duties to their constituencies. In this respect, the sorts of morally rich apologies
we describe seem antithetical to the very spirit of modern adversarial law. Legal
battlegrounds hardly provide an environment conducive to reconciliation through
moral transformation189 and therefore character and fitness reviews can seem like
something of a trap.
On the other hand, current legal trends undisputedly point toward a rise in
the prevalence of certain kinds of apologies in law. Building on findings in the
social sciences, legal scholarship, and legislation now reinforce the belief that
an applicant’s character than do generalized and ambiguous conception of remorse. Our position
captures the meanings usually associated with remorse—for instance the state of experiencing negative emotions as a result one’s wrongdoing—as but one component of the broader set of meanings
captured by a categorical apology.
186. For a more thorough discussion of the role of apologies in law, see Nick Smith, Apologies
in Law: An Overview of the Philosophical Issues, Proceedings of the Conference on Forgiveness,
Reconciliation, and the Law at Case Western Reserve Law School, (unpublished article on file with
author).
187. See Deborah Levi, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165, 1186-87
(1997) (“If a party asks for an apology, the opposing lawyer is likely . . . to [refuse in order to] protect
her client from the risk that evidence of apology could become a basis for assigning liability in a
subsequent legal proceeding.”).
188. Michael Woods, Healing Words: The Power of Apology in Medicine (2007).
189. See Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135,
1150 (2000) (“This competition is captured in a lawsuit, the purpose of which is to establish the fault
of one party and offer relief to the other. This is hardly an atmosphere that encourages expressions
of remorse.”)
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strategically timed and worded apologies can prevent litigation altogether, reduce
damage payments and jury awards by considerable amounts, or shave years from
prison sentences.190 In criminal law, the U.S. Federal Sentencing Guidelines permit
judges to reduce punishments by considerable amounts for defendants who “accept responsibility” for their crimes and “express remorse.”191 U.S. Supreme Court
190. For discussions of the role of apologies in criminal law by legal scholars appearing in law
reviews, see Brent White, Saving Face: The Benefits of Not Saying I’m Sorry, 72 L. & Contemp.
Probs. 261 (2009); Daniel Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to
Admit Guilt at Parole Hearings, 93 Iowa L. Rev. 491 (2008); Margareth Etienne & Jennifer K. Robbennolt, Apologies and Plea Bargaining, 91 Marq. L. Rev. 295 (2007); Abigail Penzell, Apology
in the Context of Wrongful Conviction: Why the System Should Say It’s Sorry, 9 Cardozo J. Conflict Resol. 145 (2007); Stephanos Bibas, Transparency and Participation in Criminal Procedure,
81 N.Y.U. L. Rev. 911 (2006); Candace McCoy, Plea Bargaining as Coercion: The Trial Penalty
and Plea Bargaining Reform, 50 Crim. L. Q. 67 (2005); Susan Szmania & Daniel Mangis, Finding the Right Time and Place: A Case Study Comparison of the Expression of Of fender Remorse
in Traditional Justice and Restorative Justice Contexts, 89 Marq. L. Rev. 335 (2005); Stephanos
Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114
Yale L.J. 85 (2004); Sherry Colb, Profiling With Apologies, 1 Ohio St. J. Crim. L. 611 (2004); Erin
Ann O’Hara, Apology and Thick Trust: What Spouse Abusers and Negligent Doctors Might Have in
Common, 79 Chi.-Kent L. Rev. 1055 (2004); Robert Weisberg, Apology, Legislation, and Mercy,
82 N.C. L. Rev. 1415 (2004); Cheryl Bader, Forgive Me Victim for I Have Sinned: Why Repentance
and the Criminal Justice System Do Not Mix—A Lesson from Jewish Law, 31 Fordham Urb. L.J. 69
(2003); Margareth Etienne, Remorse, Responsibility, and Regulating Advocacy: Making Defendants
Pay for the Sins of Their Lawyers, 78 N.Y.U. L. Rev. 2103 (2003); S. Garvey, Restorative Justice,
Punishment, and Atonement, 1 Utah L. Rev. 303 (2003); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B. U. L. Rev. 289 (2001); S. Garvey, Punishment as Atonement, 47 UCLA L. Rev. 1801 (1999); Theodore Eisenberg et al., But Was He Sorry?
The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599 (1998); Scott Sundby, The
Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998);
Charles R. Calleros, Conflict, Apology, and Reconciliation at Arizona State University: A Second
Case Study in Hateful Speech, 27 Cumb. L. Rev. 95 (1997); Lisa F. Orenstein, Sentencing Leniency
May Be Denied to Criminal Offenders Who Fail to Express Remorse at Allocution, 56 Md. L. Rev.
780 (1997); Michael O’Hear, Remorse, Cooperation, and ‘Acceptance of Responsibility’: The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines, 91 Nw. U.
L. Rev. 1507 (1997); Ellen M. Bryant, Section 3E1.1 of the Federal Sentencing Guidelines: Bargaining with the Guilty, 44 Cath. U. L. Rev. 1269 (1995); Richard Delgado & Jean Stefancic, Apologize
and Move On?: Finding a Remedy for Pornography, Insult, and Hate Speech, 67 U. Colo. L. Rev.
93 (1994); John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3 (1978). For an exchange on remorse, apology, and mercy, see Criminal Law Conversations (Paul Robinson et al.,
eds. 2009). For a recent symposium on mercy in criminal law, see generally 4 Ohio St. J. Crim. L.
(2007).
For discussions of “shaming sanctions,” see Andrew von Hirsch, Censure and Sanctions
82 (1996); Stephen Garvey, Can Shaming Punishments Educate? 65 U. Chi. L. Rev. 733 (1998);
James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055 (1998);
Dan Kahan, What Do Alternative Sanctions Mean?, 6 U. Chi. L. Rev. 591 (1996) (for Kahan’s revised views, see What’s Really Wrong with Shaming Sanctions 84 Tex. L. Rev. 2075 (2006)).
191. See 18 U.S.C. app. § 3E1.1; see also United States v. Fagan, 162 F.3d 1280, 1284 (10th
Cir. 1998); United States v. Hammick, 36 F.3d 594, 600 (7th Cir. 1994); United States v. Camargo,
908 F.2d 179 (7th Cir. 1990).
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Justice Anthony Kennedy once claimed that expressions of remorse can be the
difference between life and death in capital sentencing procedures192 and several
studies confirm this.193 Philosophers194 and social scientists195 now pay increasing
192. Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring).
193. See Theodore Eisenberg et al., But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599 (1998); Randolph B. Pipes & Marci Alessi, Remorse and a Previously
Punished Offense in Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85
Psychol. Rep. 246 (1999); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death
Penalty, 83 Cornell L. Rev. 1557 (1998); C.L. Kleinke et al., Evaluation of a Rapist as a Function
of Expressed Intent and Remorse, 132 J. Soc. Psychol. 525 (1992); Michael G. Rumsey, Effects of
Defendant Background and Remorse on Sentencing Judgments, 6 J. Appl. Soc. Psychol. 64 (1976).
194. For discussions of apologies in criminal law by philosophers, see Linda Radzik, Making Amends: Atonement in Morality, Law, and Politics (2009); Christopher Bennett,
The Apology Ritual: A Philosophical Theory of Punishment (2008); Forgiveness, Mercy,
and Clemency (Austin Sarat & Nassir Hussain, eds., 2007); Urban Walker, Moral Repair:
Reconstructing Moral Relations After Wrongdoing (2006); Andrew von Hirsch, Proportionate Sentencing: Exploring the Principles (2005); Jeffrie Murphy, Getting Even:
Forgiveness and its Limits (2003); John Braithwaite, Restorative Justice and Responsive
Regulation (2002) (note that Braithwaite’s doctoral training is in sociology, but he publishes in
philosophy journals as well as various other disciplines); Antony Duff, Punishment, Communication, and Community (2001); From Social Justice to Criminal Justice (W.C Heffernan &
John Kleinig, eds., 2000); Michel Foucault, Discipline and Punish: The Birth of the Prison
(Alan Sheridan trans., 1995); Immanuel Kant, The Metaphysical Elements of Justice 101
(John Ladd trans., Hackett 1999) (1797); Andrew von Hirsch, Censure and Sanctions (1996);
K. D. Moore, Pardons: Justice, Mercy, and the Public Interest (1989); Richard Swinburn,
Responsibility and Atonement (1989); A. Duff, Trials and Punishments (1986); Christopher
Bennett, Apology and Reparation in a Multicultural State, in Law and Philosophy 459 (R. Harrison, ed., 2007); Meir Dan Cohen, Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon, in Forgiveness, Mercy, and Clemency 117 (Austin Sarat & Nasser Hussain
eds., 2007); Jeffrie Murphy, Remorse, Apology and Mercy, 4 Ohio St. J. Crim. L. 423 (2007); John
Tasioulas, Repentance and the Liberal State, 4 Ohio St. J. Crim. L. 487 (2007); Christopher Bennett,
Taking the Sincerity Out of Saying Sorry: Restorative Justice as Ritual, 23 J. Appl. Phil. 127 (2006);
Jeffrie Murphy, Remorse, Apology, and Criminal Sentencing, 38 Ariz. St. L.J. 371 (2006); John
Tasioulas, Punishment and Repentance, 81 Phil. 279 (2006); Andrew von Hirsch et al., Restorative
Justice: A ‘Making Amends’ Model? in Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? 21 (Andrew von Hirsch et al. eds., 2003); Geoffrey Sayre-McCord, Criminal Justice and Legal Reparations as an Alternative to Punishment, 11 Phil. Issues 502
(2001); John Braithwaite, Repentance Rituals and Restorative Justice, 8 J. Pol. Phil. 115 (2000);
Steven K Tudor, Accepting One’s Punishment as Meaningful Suffering, 20 L. & Phil. 581 (2000);
Andrew von Hirsch, Punishment, Penance and the State, in Punishment and Political Theory,
69 ( M. Matravers ed., 1999); Jeffrie Murphy, Repentance, Punishment, and Mercy, in Repentance:
A Comparative Perspective 143 (Amitai Etzioni & David Carney eds., 1997); Brenda M. Baker,
Penance as a Model for Punishment, 18 Soc. Theory & Prac. 311 (1992);Wojciech Sadurski, Theory of Punishment, Social Justice, and Liberal Neutrality, 7 L. & Phil. 351 (1989); Robert Justin
Lipkin, Punishment, Penance, and the Respect for Autonomy, 14 Soc. Theory & Prac. 87 (1988);
Jean Hampton, The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff. 208 (1984); P.
Twambley, Mercy and Forgiveness, 36 Analysis 84 (1976).
195. For examples of discussions of apologies in criminal law by social scientists, see Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (1990); Howard Zehr, Why
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attention to the role of apologies in punishment. In civil law, research suggests that
apologies provide an astoundingly successful means of mollifying disputants.196
Many suggestive social scientific studies have appeared in the past twenty years,
Can’t We Just Apologize?, 11 Crime Victims Rep. 38 (2007); Gordon Bazemore & Mark Umbreit,
A Comparison of Four Restorative Sentencing Models, in A Restorative Justice Reader: Texts,
Sources, Context (Gerry Johnstone ed., 2003); Anthony Bottoms, Some Sociological Reflections
on Restorative Justice, in Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms 79 (Andrew von Hirsch et al., eds., 2003); H. Strang, Justice for Victims of Young
Offenders: the Centrality of Emotional Harm and Restoration, in A Restorative Justice Reader:
Texts, Sources, Context 286 (G. Johnstone ed., 2003); Carrie Petrucci, Apology in the Criminal
Justice Setting, 20 Behavioral Sci. & L. 337 (2002); Keith E. Niedermeier et al., Exceptions to the
Rule: The Effects of Remorse, Status, and Gender on Decision Making, 31 J. Appl. Soc. Psychol.
604 (2001); Robert R. Weyeneth, The Power of Apology and the Process of Historical Reconciliation, 23 The Pub. Historian 9 (Summer 2001); Susan Alter, Apologizing for Serious Wrongdoing: Social, Psychological, and Legal Considerations, Final Report for the Law Commission of
Canada (1999); Walter J. Dickey, Forgiveness and Crime: The Possibilities of Restorative Justice,
in Exploring Forgiveness 106 (Robert D. Enright & Joanna North eds., 1998); Randolph B. Pipes
& Marci Alessi, Remorse and a Previously Punished Offense in Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85 Psychol. Rep. 246 (1999); M. H. Gonzales et al., Victims as “Narrative Critics:” Factors Influencing Rejoinders and Evaluative Responses to Offenders’
Accounts, 20 Personality & Soc. Psychol. Bull. 691 (1994); D. Robinson et al., Heinous Crime
or Unfortunate Accident? The Effects of Remorse on Responses to Mock Criminal Confessions, 73
Soc. Forces 175 (1994); C. Kleinke et al., Evaluation of a Rapist as a Function of Expressed Intent
and Remorse, 132 J. Soc. Psychol. 525 (1992); Christy Taylor & Chris L. Kleinke, Effects of Severity of Accident, History of Drunk Driving, Intent, and Remorse on Judgments of a Drunk Driver, 22 J.
Appl. Soc. Psychol. 1641 (1992); G. S. Schwartz et al., The Effects of Post-Transgression Remorse
on Perceived Aggression, Attribution of Intent, and Level of Punishment, 17 J. Soc. & Clinical Psychol. 293 (1987); Michael G. Rumsey, Effects of Defendant Background and Remorse on Sentencing Judgments, 6 J. Appl. Soc. Psychol. 64 (1976); Harry S. Upshaw & Daniel Romer, Punishment
For One’s Misdeeds as a Function of Having Suffered From Them, 2 Personality & Soc. Psychol.
Bull. 162 (1976); W. Austin et al., Equity and the Law: The Effects of a Harmdoer’s “Suffering in
the Act” on Liking and Assigned Punishment, in Advances in Experimental Social Psychology
217 (L. Berkowitz ed., 1976); Jerry I. Shaw & James A. McMartin, Perpetrator or Victim? Effects of
Who Suffers in an Automobile Accident on Judgmental Strictness, 3 Soc. Behavior & Personality
5 (1975); and Dana Bramel et al., An Observer’s Reaction to the Suffering of His Enemy, 8 J. Personality & Soc. Psychol. 384 (1968).
196. For discussions of apologies in civil law in law reviews and by law faculty, see Jennifer
Robbennolt, Apologies and Medical Error, 467 Clin. Orthop. Relat. Res. 376 (2009); Jennifer
Robbennolt, Apologies and Reasonableness: Some Implications of Psychology for Torts, 59 DePaul
L. Rev. 489 (2010); Jennifer Robbenolt, Apologies and Settlement, 45 Ct. Rev. 76 (2010); Michael
Runnels, Apologies All Around: Advocating Federal Protection for the Full Apology in Civil Cases,
45 San Diego L. Rev. 137 (2009); Robin Ebert, Attorneys, Tell Your Clients to Say They’re Sorry:
Apologies in the Health Care Industry, 5 Ind. Health L. Rev. 337 (2008); Carole Houk & Lauren
Edelstein, Beyond Apology to Early Non-Judicial Resolution, 29 Hamline J. Pub. L. & Pol’y 411
(2008); Aaron Lazare, The Healing Forces of Apology in Medical Practice and Beyond, 57 DePaul L. Rev. 251 (2008); Jennifer Robbennolt, Attorneys, Apologies, and Settlement Negotiation,
13 Harv. Negot. L. Rev. 349 (2008); Mitchell Stephens, I’m Sorry: Exploring the Reasons Behind
the Differing Roles of Apology in American and Japanese Civil Cases, 14 Widener L. Rev. 185
(2008); Prue Vines, Apologies and Civil Liability in the UK: A View from Elsewhere, 12 Edinburgh
L. Rev. 200 (2008); Colin Jones, Apologies and Corporate Governance in the Japanese Context:
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but consider a few of the more striking recent arguments for increasing the role of
apologies in law.197 Michael Woods, a physician and leading advocate for apologies as a means of reducing medical malpractice litigation, claims that the “likeli-
Tatsumi Tanaka’s Sonna Shazai De Wa Kaisha Ga Abunai (Apologizing that Way Will Endanger
Your Company), 3 BYU Int’l L. Mgmt. Rev. 303 (2007); Prue Vines, The Power of Apology:
Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena, Pub. Space 1 (2007); Ashley
A. Davenport, Forgive and Forget: Recognition of Error and Use of Apology as Preemptive Steps
to ADR or Litigation in Medical Malpractice Cases, 6 Pepperdine Disp. Resol. L.J. 81 (2006);
Jennifer Robbennolt, Apologies and Settlement Levers, 3 J. Empirical Legal Stud. 333 (2006);
Brent T. White, Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 Cornell
L. Rev. 1261 (2006); D. Hyman & C. Silver, Medical Malpractice Litigation and Tort Reform, 59
Vand. L. Rev. 1085 (2006); Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute
Settlement (with Japan and the United States in Mind), 27 Mich. J. Int’l L. 1 (2005); Virginia L.
Morrison, Heyoka: The Shifting Shape of Dispute Resolution in Health Care, 21 Ga. St. U. L. Rev.
931 (2005); Jennifer Robbennolt, What We Know and Don’t About the Role of Apologies in Resolving
Health Care Disputes, 21 Ga. St. L. Rev. 1009 (2005); Lee Taft, Apology within a Moral Dialectic: A Reply to Professor Robbennolt, 103 Mich. L. Rev. 1010 (2005); Prue Vines, Apologising to
Avoid Liability: Cynical Civility or Practical Morality? 27 Sydney L. Rev. 483 (2005); Prue Vines,
Apologies in the Civil Liability Context, 2 Australian Civ. Liability 6 (2005); J. Brown, The Role
of Apology in Mediation, 87 Marq. L. Rev. 655 (2004); Sidney Kanazawa, Apologies and Lunch:
Strategic Options for Every Litigator, For the Defense, Jul. 2004, at 29; Donna Pavlick, Apology
and Mediation: The Horse and Carriage of the Twenty-First Century, 18 Ohio St. J. on Disp. Resol.
829 (2003); Jennifer Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102
Mich. L. Rev. 460 (2003); Erin O’Hara & Douglas Yarn, On Apology and Consilience, 77 Wash.
L. Rev. 1121 (2002); R. Cohen, Legislating Apologies: The Pros and Cons, 70 U. Cin. L. Rev. 1
(2002); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions,
81 B.U. L. Rev. 289 (2001); Dai-Kwon Choi, Freedom of Conscience and the Court-Ordered Apology for Defamatory Remarks, 8 Cardozo J. Int’l & Comp. L. 205 (2000); Max Bolstad, Learning
from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000);
William K. Bartels, The Stormy Sea of Apologies: California Evidence Code Section 1160 Provides a
Safe Harbor for Apologies Made after Accidents, 28 W. St. U. L. Rev. 141 (2001); D. Shuman, Role
of Apologies in Tort Law, 83 Judicature 180 (2000); Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135 (2000); Jonathan R. Cohen, Advising Clients to Apologize, 72
S. Cal. L. Rev. 1009 (1999); Jonathan R. Cohen, Nagging Problem: Advising the Client Who Wants
to Apologize, Dispute Resolution Magazine, Spring 1999, at 19; Steven Keeva, Does Law Mean
Never Having to Say You’re Sorry?, 85 A.B.A. J. 64 (1999); Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 Sw. U. L.
Rev. 221 (1999); Deborah Levi, The Role of Apology in Mediation, 72 N.Y.U. L. Rev. 1165 (1997);
Marshall Tanick & Teresa Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying
“I’m Sorry,” The Hennepin Lawyer, July-August 1996, at 22; Peter Rehm & Denise Beatty, Legal
Consequences of Apologizing, 1995 J. Disp. Resol. 115 (1995); R. Korobkin & C. Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107 (1994);
John Soloski, The Study and the Libel Plaintiff: Who Sues for Libel? 71 Iowa L. Rev. 217 (1985).
197. For social scientific discussion of apologies in civil law, see Johannes Abeler et al.,
The Power of Apology (2009) available at http://www.nottingham.ac.uk/cedex/documents/
papers/2009-12.pdf; Robert Cornell et al., The Use of Remedial Tactics in Negligence Litigation, 26
U. Utah Contemp. Acctg. Res. 767 (2009); A. Wu et al., Disclosing Medical Errors to Patients: It’s
Not What You Say, It’s What They Hear, 24 J. Gen. Internal Med. 1012 (2009); Michael B. Rainey
et al., Characterized by Conciliation: Here’s How Business Can Use Apology to Diffuse Litigation, 26
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hood of a lawsuit falls by 50 percent when an apology is offered and the details of
a medical error are disclosed immediately.”198 Medicine generally best embodies
these two faces of apologies in law, as it underwent a dramatic transformation by
evolving from an “admit nothing” culture to a profession that routinely advises
physicians to apologize for adverse outcomes in order to minimize the costs associated medical malpractice litigation.199
Alternatives to High Cost Litig. 131 (2008); Chris Hyman & Clyde Schechter, Mediating Medical Malpractice Lawsuits Against Hospitals: New York City’s Pilot Project, 25 Health Aff. 1394
(2006); L. Kaldjian et al., An Empirically Derived Taxonomy of Factors Affecting Physicians’ Willingness to Disclose Medical Errors, 21 J. Gen. Internal Med. 942 (2006); Aaron Lazare, Apology
in Medical Practice: An Emerging Clinical Skill, 296 J. Am. Med. Ass’n 1401 (2006); K. Mazor
et al., Disclosure of Medical Errors: What Factors Influence How Patients Respond?, 21 J. Gen.
Intern Med. 704 (2006); Keith Michael Hearit, Crisis Management by Apology: Corporate
Responses to Allegations of Wrongdoing (2005); C.B. Liebman & C.S. Hyman, Medical Error
Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration Project in Pennsylvania
The Project on Medical Liability in Pennsylvania (2005), available at http://www.pewtrusts.
org/our_work_report_detail.aspx?id=24398; C. Sparkman, Legislating Apology in the Context of
Medical Mistakes, 82 AORN J. 263 (2005); Douglas Frenkel & Carol Liebman, Words that Heal,
140 Annals of Internal Med. 482 (2004); C. Liebman & C. S. Hyman, A Mediation Skills Model
To Manage Disclosure Of Errors And Adverse Events To Patients, 23 Health Affairs 22 (2004);
K. Mazor et al., Health Plan Members’ Views about Disclosure of Medical Errors, 140 Annals Internal Med. 409 (2004); Thomas H. Gallagher et al., Patients’ and Physicians’ Attitudes Regarding
the Disclosure of Medical Errors, 289 J. Am. Med. Ass’n 1001 (2003); R. Lamb et al., Hospital Disclosure Practices: Results of a National Study, 22 Health Aff. 73 (2003); Ameeta Patel & Lamar
Reinsch, Companies Can Apologize: Corporate Apologies and Legal Liability, 66 Bus. Comm. Q.
9 (2003); Brian H. Bornstein et al., The Effects of Defendant Remorse on Mock Juror Decisions in
a Malpractice Case, 20 Behav. Sci. & L. 393 (2002); Elizabeth Latif, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B. U. L. Rev. 289 (2001); Jonathan Cohen,
Apology and Organizations: Exploring an Example from Medical Practice, 27 Fordham Urb. L.J.
1447 (2000); Carl D. Schneider, What It Means To Be Sorry: The Power of Apology in Mediation,
17 Mediation Q. 265 (2000); S. Kraman & G. Hamm, Risk Management: Extreme Honesty May
Be the Best Policy, 131 Annals Internal Med. 963 (1999); A. Wu, Handling Hospital Errors: Is
Disclosure the Best Defense? 131 Annals Internal Med. 970 (1999); A. Witman et al., How do
Patients Want Physicians to Handle Mistakes? A Survey of Internal Medicine Patients in an Academic
Setting, 156 Archives Internal Med. 2565 (1996); H.S. Farber & M. J. White, A Comparison of
Formal and Informal Dispute Resolution in Medical Malpractice, 23 J. Legal Stud. 777 (1994);
C. Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 Lancet 1609 (1994); G. Hickson et al., Factors that Prompted Families to File Medical
Malpractice Claims Following Perinatal Injuries, 267 J. Am. Med. Ass’n 1359 (1992); M. May & D.
Stengel, Who Sues Their Doctors? How Patients Handle Medical Grievances, 24 L. & Soc’y Rev.
105 (1990); D. Novack et al., Physicians’ Attitudes Toward Using Deception to Resolve Difficult
Ethical Problems, 261 J. Am. Med. Ass’n 2980 (1989); Ann J. Kellett, Healing Angry Wounds: The
Roles of Apology and Mediation in Disputes Between Physicians and Patients, 1987 J. Disp. Resol.
111 (1987); Stephen B. Goldberg et al., Saying You’re Sorry, 3 Negotiation J. 221 (1987); John O.
Haley, The Implications of Apology, 20 Law & Soc’y Rev. 499 (1986).
198. Woods, supra note 188, at 3.
199. For further specific discussions of the role of apologies in medicine, see, for example,
Abeler et al., supra note 197; Cornell et al., supra note 197; Robbennolt, Apologies and Medical
Error, supra note 196; Runnels, supra note 196; Wu et al., supra note 197; Ebert, supra note 196;
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The role of apologies in law, it is safe to say, will often be confusing to bar
applicants undergoing a character and fitness review. We should not be surprised
if their initial impulse is to aggressively deny or minimize their wrongdoing given
that they have been trained to advocate. Such an attitude may undercut any contrition they may genuinely feel, and their legal training may not always serve them
well in this context.200 Review boards and attorneys specializing in such cases may
Lazare, The Healing Forces of Apology in Medical Practice and Beyond, supra note 196; Rainey
et al., supra note 197; Kevin Sack, Doctors Say “I’m Sorry” Before “See You in Court,” N.Y. Times,
May 18, 2008, at A1; Flauren Fagadau Bender, “I’m Sorry” Laws and Medical Liability, 9 Virtual
Mentor: Am. Med. Ass’n J. Ethics 300 (2007); John Kleefeld, Thinking Like a Human: British Columbia’s Apology Act, 40 U. B.C. L. Rev. 769 (2007); Laura Landro, The Informed Patient: Doctors
Learn to Say “I’m Sorry”: Patients’ Stories of Hospital Errors Serve to Teach Staff, Wall St. J., Jan.
24, 2007, at D5; Charlie Schmidt, “We’re Sorry”: The Healing Power of Apology—And How Two
Little Words Can Make Medicine Safer, Harv. Pub. Health Rev., Fall 2007, at 8; Woods, supra
note 186; Medical Justice: Making the System Work Better for Patients and Doctors: Hearing Before
the S. Comm. on Health, Educ., Labor & Pensions, 109th Cong. 3 (2006) (testimony of Richard
C. Boothman); Richard C. Boothman, Apologies and a Strong Defense at the University of Michigan Health System, Physician Executive, Mar./Apr. 2006, at 7; Davenport, supra note 196; Peter
Geier, Emerging Med-Mal Strategy: “I’m Sorry,” Nat’l L. J., July 24, 2006, available at http://www.
law.com/jsp/article.jsp?id=1153472732197 (subscription required); Hyman & Schechter, supra note
197; Hyman & Silver, supra note 196; Kaldjian et al., supra note 197; Lazare, Apology in Medical
Practice: An Emerging Clinical Skill, supra note 197; Lucian L. Leape, Full Disclosure and Apology—An Idea Whose Time Has Come, Physician Executive, Mar.-Apr. 2006, at 16; Katherine
Mangan, Acting Sick, Chron. Higher Edu., Sept. 15, 2006, at 8; Mazor, Reed, Yood, Fischer, Baril
& Burwitz, supra note 197; Gail Garfinkel Weiss, Should You Apologize?, Medical Economics,
Apr. 21, 2006, at 50; Lucian L. Leape, Understanding the Power of Apology: How Saying “I’m
Sorry” Helps Heal Patients and Caregivers, Focus on Patient Safety, Winter 2005, at 1; Liebman
& Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration
Project in Pennsylvania, supra note 197; Morrison, supra note 196; Robbenholt, What We Know and
Don’t About the Role of Apologies in Resolving Health Care Disputes, supra note 196; Sparkman,
supra note 197; Lee Taft, Apology and Medical Mistake: Opportunity or Foil?, 14 Ann. Health L.
55 (2005); Vines, Apologising to Avoid Liability: Cynical Civility or Practical Morality?, supra note
196; Frenkel & Liebman, supra note 197; R. Lamb, Open Disclosure: The Only Approach to Medical
Error, 13 Quality & Safety in Health Care 3 (2004); Liebman & Hyman, A Mediation Skills
Model To Manage Disclosure Of Errors And Adverse Events To Patients, supra note 197; Mazor,
Simon & Yood, supra note 197; Lindsey Tanner, Doctors Eye Apologies for Medical Mistakes, Associated Press, Nov. 8, 2004; Rachel Zimmerman, Medical Contrition: Doctors’ New Tool to Fight
Lawsuits: Saying “I’m Sorry,” Wall St. J., May 18, 2004, at A1; Gallagher et al., supra note 197;
Lamb, Studdert, Bohmer, Berwick & Brennan, supra note 197; Cohen, Legislating Apologies: The
Pros and Cons, supra note 196; Bornstein et al., supra note 197; Latif, supra note 189; Cohen, Apology and Organizations: Exploring an Example from Medical Practice, supra note 197; Taft, Apology
Subverted, supra note 189; Kraman & Hamm, supra note 197; Wu, supra note 197; Witman et al.,
supra note 197; J. Stratton Shartel, Toro’s Mediation Program Challenges Wisdom of Traditional
Litigation Model, Inside Litig., June 2005, at 10; Farber & White, supra note 197; Vincent et al.,
supra note 197; Hickson et al., supra note 197; May & Stengel, supra note 197; Novack et al., supra
note 197; Kellett, supra note 197.
For examples of recent media coverage of the increasing role of apologies in medicine, see
Sack, supra; Landro, supra; Mangan, supra; Geier, supra; Weiss, supra.
200. See Simon, supra note 17 (“Second, and perhaps more importantly, the admissions
process is an inopportune time and place to ask an attorney and the applicant to grapple with this
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need to treat these reviews as a “teachable moment” in the career of a young attorney where they learn the significance of regret, reform, and attitudes of contrition for many legal disputes. Rather than reinforcing that law is a bare-knuckle
procedural contest, character and fitness reviews provide an opportunity for an
attorney to internalize that many legal issues are primarily matters of principle and
emotion. Character reviews can, in other words, help to cultivate character rather
than simply judge it.
IV. A Practical Framework for Expressing and Evaluating
Apologies in Character and Fitness Cases
We now provide a practical framework for analyzing acts of remorse within
the bar admission process. We hope the following guidelines will better equip bar
admission reviewers to systemically evaluate the relationship between apology
and character and will reduce the need to rely on impressionistic instincts in such
important matters. We offer thirteen elements of a categorical apology and apply
them specifically to the character and fitness context.201
1. Has the applicant corroborated the factual record?
It seems axiomatic that for an applicant to truly express remorse, he or she
must accurately understand and describe the underlying offense for which he is remorseful. Thus, categorical apology requires the offender to corroborate a detailed
factual record of the events salient to the injury. If possible, this should include
reaching agreement among the victim, offender, and sometimes the community
regarding what transpired and the relevant aspects of the context in which the injury occurs. Rather than providing general and vague descriptions of the events (“I
acted badly”), the committee should require the applicant to render transparent all
facts material to judging the transgressions. Such a record will often include honest accounts of the mental states of the apologizer at the time of the offense when
such information would prove relevant, for example by describing the offender’s
intentions when committing the transgression. An applicant will not, at any time
during the application process, attempt to suppress or evade the factual record. In
addition to establishing the historical record, meeting this criterion goes some way
toward demonstrating the applicant’s credibility and candor.
Bagne offers a classic case in this regard as the applicant suggested—via various ill-conceived strategies—that he did not fire the shot at the jogger or otherwise
cause her serious harm.202 The Board’s finding that Bagne “seemed unwilling to
question. It is here that we most need lawyers to set a tone of professionalism. For those applicants
without clinical experience in law school, this may be the first time where they, as an aspiring lawyer,
confront the actual practice. Regardless of how one resolves the issue of the “lecture,” there is something about the process of having this discussion in as amorphous an area as remorse that is unlikely
to help build confident and committed professionals. “).
201. For the full defense of the principles of apologetic meaning endorsed here, see Smith,
supra note 24, at 28-113.
202. In re Application of Bagne, 808 N.E.2d at 372-73.
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consistently tell the truth” captures the essence of his lack of credibility with respect to corroborating the factual record.203
The applicant in King also provides an example of failing to satisfy this element because he repeatedly suggested that he pled guilty despite possessing exculpatory evidence.204 Given the prevalence of plea bargaining in contemporary
criminal courts in the United States, this can present a genuine dilemma. If an
applicant continues to assert her innocence for a crime for which she entered into
a plea bargain, we could find little meaning in an expression of remorse for this
crime. Indeed, we might expect a principled applicant—a person of especially high
character—to refuse to apologize for a wrongdoing she did not commit despite that
fact that such an expression of remorse might grease the wheels of bar admission.
2. Has the applicant accepted blame for the specific
act causing the committee’s concern?
In accordance with generally accepted notions of proximate causation, the
applicant must accept causal moral responsibility and blame for the harm at issue.
We can distinguish this from expressing sympathy for the injury or describing the
injury as accidental or unintentional. Dortch, for example, appeared to consistently
deny that he deserved blame for the officer’s death even thought he accepted responsibility for the attempted robbery.205 Opponents of the felony murder doctrine
might be sympathetic to Dortch’s position precisely because the legal principle
confuses issues of moral causation and Dortch was not the proximate cause of the
murder. Obviously this is a losing argument in felony murder jurisdictions, but
Dortch provides an interesting example of the reviewing body expecting the applicant to apologize and accept blame for something for which he genuinely does not
believe he deserves blame. In addition, applicants who appear primarily to regret
being caught or subject to review—as suggested by the facts in In re Krule—often
fail to satisfy this element.206
In general, these discussions would benefit from speaking precisely in terms
of “accepting blame” rather than “accepting responsibility.”207 Accepting blame
admits that I did something morally wrong and I deserve blame for the consequences of this wrongdoing. Accepting responsibility can mean any number of
things, for instance when a maintenance worker “takes responsibility” for cleaning
someone else’s mess (an occupational responsibility) and when a person accepts
“moral responsibility” for a natural disaster by providing aid (an ethical duty).
People often attempt to take responsibility for things even though they deny that
they deserve blame, and in the bar examination context we should seek primarily
acceptance of blame.
203.
204.
205.
206.
207.
Id. at 374.
In re King, 136 P.3d at 883.
In re Dortsch, 860 A.2d. at 351-52.
See In re Krule, 741 N.E.2d at 264-65.
See Smith, supra note 24, at 33-38.
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3. Has the applicant personally provided
the necessary apology?
The categorically apologetic applicant will possess the requisite standing to
accept blame for the wrongdoing. The offender can and does accept proximate
responsibility for the harm and she—rather than an attorney, proxy, or other third
party—undertakes the work of apologizing described herein. While an applicant
has the right to representation by counsel at an admission hearing, expressions of
remorse should not come from anyone other than the applicant in order for there
to be a finding of remorse.
4. Has the applicant identified each harm?
The applicant must identify each harm at issue, taking care not to conflate
several harms into one general harm or apologize for only a lesser offense or the
“wrong wrong.” In each of the cases discussed above the temptation can be to identify only the worst of the offenses, but often major offenses are comprised of many
small wrongs. What series of questionable behaviors, for instance, led Dortch to
believe that robbing a bank was an appropriate means of salvaging a failing business enterprise?208 Surely a review committee should gain insight into not only the
bank robbery, but also the series of misjudgments that led Dortch to criminal activity so that Dortch knows not to continue this behavior in his legal career.
The committee should also be sure that the applicant distinguishes the harm
to the victim from the harm to the bar and the community. In the case of a sexual
assault, for example, the harm to the victim should be distinguished from the harm
to the legal community should an unrepentant sex offender be admitted to practice law.209 Dortch is again illuminating here because he consistently, from his law
school application through his character review, attempted to distinguish the attempted robbery and the felony murder.210
5. Is the applicant able to identify the ethical
principles underlying each harm?
The applicant should be able to identify the ethical principles underlying these
harms with an appropriate degree of specificity, thus making explicit the values at
stake in the interaction and their relevance to the practice of law. For example, in a
case like Krule, the applicant must be able to see the offended ethical principle not
only as obtaining improper gains from the insurance company, but also as having
violated the ethical duty of truthfulness and the significance of this duty for his
legal career.211 In Lindmark, civility and respectful discourse seemed to be the central values at issue212 and an appropriately remorseful applicant should appreciate
the centrality of these values to the legal profession.
208.
209.
210.
211.
212.
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In re Dortsch, 860 A.2d. at 342.
Application of T.J.S., 692 A.2d.
In re Dortsch, 860 A.2d. at 350-52.
See In re Krule, 741 N.E.2d at 264-65.
See In re Lindmark, 747 A.2d at 1153.
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6. Has the applicant demonstrated a commitment
to the moral principles underlying each harm?
In order to demonstrate remorse, the applicant must commit to the ethical
principles underlying these harms (again with an appropriate degree of specificity),
vindicating the value at issue and finding the offense at the applicant’s breach of
this value justified. Here the phrase “I was wrong” will better convey this meaning
than the traditionally favored “I am sorry,” as the former accepts personal blame
for wrongdoing while the latter may provide no more than an expression of sympathy or a displeasure with a state of affairs. Committees, of course, must do more
than just require the right words. Rather, they must, through questioning, ensure
that the testimony of the applicant conveys the clear impression that she understands that she was wrong and therefore deserves blame for her actions.
7. Does the applicant recognize the victim
as a moral interlocutor?
Through this process the applicant must prove that he or she recognizes the
victim of the underlying offense as a moral interlocutor. With this, the applicant
demonstrates that she considers the victim as a moral agent worthy of engaging in
moral discourse and abandons the belief that she can disregard the victim’s dignity, humanity, or worth in pursuit of her own objectives. This factor seemed to be
determinative to the court’s finding in Dortch because of the applicant’s failure to
address the loss to the police officer’s family.213
Also notice that identifying the full set of victims can require some effort. Did
Lindmark, for instance, apologize to the dean of his law school or others impacted
by his apparently frivolous actions claims against the institution?214 Or does he
direct his apology only to the fitness review committee?215
8. Has the applicant expressed and demonstrated
categorical regret?
The applicant must demonstrate categorical regret for the actions in question,
meaning she believes that she has made a mistake that she wishes could be undone.
King’s recognition of the shootings as “a mistake I made that I will carry with me
for the rest of my life”216 demonstrates his appreciation for the wrongness of his
acts.
We can distinguish this from continuing to endorse one’s decisions but expressing sympathy regarding what the applicant perceives as the justifiable consequences of her actions. If an applicant claims that her conduct was “the best choice
she had” given the circumstances, the committee is left to wonder if she would act
differently if confronted with similar temptations.
213.
214.
215.
216.
In re Dortsch, 860 A.2d. at 360.
See In re Lindmark, 747 A.2d at 1152-53.
Id.
In re King, 136 P.3d at 883.
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9. Has the applicant delivered an apology?
When appropriate, the applicant must express the apology to the victim rather
than keeping her thoughts of contrition to herself or sharing them only with a third
party such as the review committee. She addresses the apology to the victim as
a moral interlocutor. She expresses the content required of a categorical apology
explicitly. The apology reaches the victim or an appropriate proxy. The victim
may exercise reasonable discretion regarding whether the offender must present
the apology only to the victim or also to a broader community. The determination
whether the apology must be committed to writing, conferred to the victim in writing, or entered into the record also lies within the victim and review committee’s
reasonable discretion. To repeat: reviewers should exercise appropriate skepticism toward apologies and remorse directed exclusively at the reviewing body and
should direct applicants to take steps toward reconciling with the offended. The
failure of the applicant in Dorch to apologize to the family of the deceased officer
provides an example of the significance of this element.217
10. Has the applicant demonstrated sufficient reform
since the offense, leading the committee to find
an overwhelming probability that he or she
will not reoffend over a lifetime?
Remorse should lead the applicant to forbear from reoffending over her lifetime. She will repeatedly demonstrate this commitment by resisting opportunities
and temptations to reoffend. Resisting many such temptations over a considerable
duration adds credibility to the efforts to reform. Thus a categorical apology allows
the victim to isolate the cause of her suffering, apportion blame for her injury, and
take some security in the offender’s pledge never to repeat the offense. If an applicant
has a lengthy record of not reoffending despite temptations, a reviewing committee should place considerable weight in the predictive power of such behavior. The
shorter the record and the fewer temptations resisted, the less confidence the committee should feel in their ability to predict the trajectory of the applicant’s behavior.
This element appears to speak most directly to the reasons why courts consider the age of the applicant at the time of the offense. In addition to the presumption that youthful offenders stand better chances of being rehabilitated than more
mature offenders, the passage of time provides opportunities to be presented with
and resist temptations. Thus while we do not wish to endorse the questionable
sentiments expressed in Dortch that the applicant’s “moral character was not still
in formation”218—as if the quality of our character ossifies before the age of 29 as
that court suggests—the passage of time in the presence of similar circumstances
without recidivism provides an important data point.
Note, however, two additional points. First, if the applicant was incarcerated
for much of the duration between offense and application then she may not have
217. In re Dortsch, 860 A.2d. at 860.
218. Id. at 359.
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confronted similar opportunities to reoffend. Second, reviewing bodies should
consider the specific conditions that created especially strong temptations to commit the offense. If the applicant was impoverished at the time she committed a
petty theft, for instance, a better personal financial situation may reduce the appeal of recidivating. The court found this consideration to weigh against Dortch
because “he was not without adequate resources to choose from a variety of paths
of conduct other than the fatal path he selected.”219
Addiction treatment should also factor prominently in this regard: an applicant
who offended while addicted and has been sober for ten years since demonstrates
that she has potentially reformed her conduct in part by eliminating influences that
undermine her character. The Court in King appropriately considered this aspect,
describing his alcohol abuse at the time of the misconduct as “weakness” that
contributed to his behavior.220 The Court denied the application in part because it
was not assured that King has appropriately addressed and overcome the weakness
leading to his criminal misconduct.221
11. Has the applicant provided appropriate
redress for her offenses?
A categorically apologetic applicant will provide appropriate redress for
her offenses and such redress can take many forms, pecuniary or otherwise. The
apologizer accepts legal sanctions for her wrongs, though she may protest these
penalties to the extent that she finds them unjustifiable as disproportionate to her
offense.222 The applicant takes practical responsibility for the harm she causes,
providing commensurate remedies and other incommensurable forms of redress
to the best of her ability. She provides these remedies to the offended parties or a
suitable proxy. The applicant provides a proportional amount of redress, but she
need not meet excessive demands from victims with unreasonable or inappropriate
expectations.
In light of this element, we appreciate the wisdom of the court’s finding that
“Dortch’s failure to make restitution—to offer help, for example, to Officer Cobb’s
surviving family—seriously undermines his claim that he is fully rehabilitated.”223
12. Has the applicant convinced the committee
that his intentions for apologizing are
not primarily instrumental?
The categorical apology also requires certain mental states. Rather than promoting the apologizer’s purely self-serving objectives, the applicant intends the
apology to advance the victim’s well-being and affirm the breached value. The
219.
220.
221.
222.
at 351.
223.
Id.
In re King, 136 P.3d at 885.
Id.
Though we note, the Court was not favorable to that argument in In re Dortsch, 860 A.2d.
Id. at 361.
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expressions of remorse, in other words, are not offered primarily as a means to
the end of bar admission. The strongest candidates will have apologized to those
they harmed well before the review process. Those who appear to apologize only
because of the review process should be treated with appropriate suspicion.
Consideration of statements made to third parties or a consistent pattern of
remorse might provide evidence of such intent. Such evidence did not convince
the court in Dortch.224 We do not argue that the committee or court must accept
this as proof of intent. Rather, this element should require such bodies to carefully
evaluate the conduct to determine if it demonstrates a mere plan to gain admission
or signifies true reflection and rehabilitation.
13. Have the applicant’s emotions and demeanor since
the event been consistent with one who accepts
guilt and truly shows empathy for the victim?
As a result of her wrongdoing, the applicant should experience an appropriate
degree and duration of sorrow and guilt as well as empathy and sympathy for the
victim. We leave questions regarding what constitutes the appropriate qualitative
and quantitative emotional components of categorical apologies to be determined
in consideration of cultural practices and individual expectations.225 However, focusing committee inquiries on such evidence and requiring finding of fact on these
points should discipline committees to focus on the sincerity and depth of the remorse, rather than on an ad hoc evaluation of the applicant’s past.
Conceived as described above, categorical apologies are demanding ethical
acts indicating a kind of transformation that resonates with thick conceptions of repentance expected to establish the strength of character expected of bar applicants.
Several additional points warrant noting.
First, forbearance, reform, and redress present ongoing tasks for the applicant.
Reviewing bodies cannot, therefore, conclusively measure an applicant’s contrition against the standard of the categorical apology at the moment she offers it.
If the applicant reoffends soon after her admission, surely much of the meaning
of her apology will be lost. This presents a complication in that we cannot immediately declare an applicant to have “categorically apologized” during the review
process because so much work remains. We should consider apologies at this declarative stage as a kind of promise. A categorical apology keeps its promises, and
therefore we might describe the gesture before the applicant has completed reform
and redress as a “promissory categorical apology.”
If the applicant breaks her promise to reform and provide redress over her
lifetime, her gesture would not rise to the level of a categorical apology. Although
we may desire instant and conclusive gratification from a gesture of contrition,
categorical apologies require patience from both the offender and the victim. Reviewing bodies should meet urges to prematurely judge apologies with suspicion
224. See id. at 352.
225. Smith, supra note 24.
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and scrutinize the motivations behind such haste. Reviewers should therefore appreciate this limit. Although they can take considerable measures to evaluate the
quality of an apology offered during the admissions process, all such expression of
remorse can be drained of meaning by an applicant who reoffends. Not reoffending
over a long period in the face of temptation is one of the best measures of character,
and probationary periods could provide the reviewers with an opportunity to evaluate the applicant’s behavior over a longer duration and in the context of the various
enticements and stresses associated with practicing law.
Second, parties could agree to depart from the standards provided by the categorical apology, adjusting the apologetic meaning they seek to their situation and
desires. Indeed, we might worry that a gesture that followed the script for a categorical apology might appear too rehearsed. If an offender appears to provide a
paint-by-numbers apology, we might question her intentions and the depth of her
understanding of the gesture she enacts. We should be careful, however, not to
confuse careful and studied answers with the sort of glibness that damaged the applicant’s case in Application of T.J.S.226
In some cases, diverging from the script could prove especially important. If
an offender has extreme difficulties expressing emotions, for example, the victim
might appreciate this idiosyncrasy and be entirely satisfied with something other
than a categorical apology. We might also find applicants who experience serious
obstacles to expressing remorse—cultural differences, for instance, might make
expectations for remorse inscrutable for some—and in such cases it seems prudent
to place more emphasis on other measures of reform. Again, the point is not that
every expression of remorse must satisfy the elements of a categorical apology.
Nor do we mean to make the best the enemy of the good or imply that “imperfect”
apologies are necessarily flawed in some way. Instead, we should interpret the
categorical apology as providing a touchstone against which we can interpret and
compare all expressions of remorse.
In light of these considerations, questions will arise regarding how to best
“weigh” and prioritize these thirteen elements and the additional considerations
when evaluating candidates. If an applicant satisfactorily addresses all thirteen
elements and thereby demonstrates moral transformation, we have good reason
to believe that she is likely to serve the bar honorably. Undertaking such a fine
grained review of the applicant’s attitudes and behaviors, we believe, provides a
much more accurate evaluation of her fitness to practice law than does an impressionistic determination regarding the applicant’s remorsefulness. Cases surely will
226. Application of T.J.S., 692 A.2d 498 (1997). In that case, a teacher had been convicted of
having sexual relations with his underage students. He served time in prison, where he was a model
prisoner and participated enthusiastically in therapy programs. He also excelled in law school and
was s student leader. Following his passage of the bar, the New Hampshire Supreme Court denied
his admission. One of the grounds cited by the Committee for the denial was his “glibness.” It appears this refers to what they saw as his overly studied expressions of understanding of his offense
and remorse.
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arise, however, when an applicant fails to satisfy all of the elements. What should
a board make, for instance, of an applicant who fails to address her victim but does
everything else right? Or one who, perhaps on the advice of her attorney, refuses
to confess to important details of her wrongdoing? And what if the offense took
place recently and the applicant has not had the opportunity to demonstrate her
reform but she seems genuinely repentant? We argue—and many of the intuitions
expressed in the case law discussed herein support our claim—that shortcomings
in any of these regards should raise concerns regarding the applicant’s fitness. Although the central idea that an applicant should admit wrongdoing, accept blame,
and undertake reform and redress constitutes the core of apologetic meanings, the
thirteen elements help us appreciate why such attitudes and behaviors matter for
the ethical practice of law. None of the thirteen elements is trivial. Although an
applicant failing to satisfy all of the elements may reasonably be deemed little risk
to practice law unethically, each shortcoming should be considered a red flag. Reviewing bodies should recognize those flags, understand the dangers they present,
and judge accordingly based on the totality of the circumstances. We do not, after
all, offer guarantees that those who apologize well will not act dishonorably. We
simply hope for more accuracy in predicting the correlation between past, current,
and future behavior and to treat bar applicants more fairly and consistently.
V. Concluding Considerations Regarding the Purpose
of Character and Fitness Review
We conclude with several considerations regarding the general purpose of
character and fitness reviews and the role of remorse in such proceedings.
First, we should be mindful of the dangers of understanding apologies and
remorse in the character and fitness context becoming court-ordered or otherwise
involuntary. The practice of ordering offenders to apologize for their deeds has a
dark history. Numerous religious traditions routinely tortured subjects until they
confessed and repented and authoritarian states have long coerced public statements of “rehabilitation” from dissidents. In this respect, Linda Radzik makes an
important and underappreciated claim in Making Amends. “The history of atonement,” she writes, “is in large part a history of degradation.227
As we note above, the strongest candidates for bar admission will have apologized to those they harmed well before the review process; those who appear to
apologize only because of the review process should be treated with appropriate
suspicion. If an offender recognizes her transgressions as a moral failure, as is
required of a categorical apology, something like a sense of duty will motivate
her apology. Surely such voluntary apologies hold very different sorts of meanings from expressions of contrition ordered by review committees under the threat
of denying admission to the bar. Thus, if a character review committee strongly
encourages an applicant to express contrition when the applicant is not inclined to
227. Radzik, Making Amends, supra note 193, at 18.
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do so, the meanings of such contrition are unclear. Should we understand it as an
innovative form of restorative justice, an additional deterrent for future applicants,
a retributive or even vengeful attempt to humiliate wrongdoing applicants, or some
confused hodgepodge of punishment theory? Such questions require reviewers to
maintain a clear sense of the objectives of the review and the role of remorse in
meeting those goals. So what are those objectives?
The National Conference of Bar Examiners Comprehensive Guide to Bar Admissions states: “The primary purpose of character and fitness screening before
admission to the bar is the protection of the public and the system of justice.”228
Thus, we first caution review committees against understanding an applicant’s remorse as serving retributive ends. It is not unusual for a victim to desire an apology
because she wants the offender to suffer proportionate harm. Immanuel Kant famously understood court-ordered apologies as serving a justified retributive function by humiliating certain classes of offenders, and we can wonder if our intuition
that the remorseful applicant should suffer some emotional pain is retributive in
nature.229 We may be tempted to believe that those who wrong others deserve to
suffer negative emotions and court-ordered apologies are a legitimate and inexpensive means to “magnify the humiliation inherent in conviction”230 as some argue.231
However, in light of the agreed upon purpose of the character and fitness
process, reviewers should not understand themselves engaged in a metaphysical
exercise whereby they cast judgment on the character of the applicant and exact
punishment accordingly, one form of which may be commanding an apology that
produces a proportionate amount of emotional suffering in the applicant. Acts of
retribution and supplication likely provide little indication of the applicant’s character and likelihood to serve the bar honorably.
In creating character and fitness standards, bar associations and courts seek
to prevent unscrupulous individuals from joining the legal profession, thereby
avoiding future harm to the public and protecting the high standards of the legal
228. NCBEX Guide, supra note 2, at viii, III.7.
229. Immanuel Kant, The Metaphysical Elements of Justice 139 (John Ladd trans.,
Hackett 1999) (1797).
230. Dan Kahan, What Do Alternative Sanctions Mean?, 6 U. Chi. L. Rev. 591, 631-32 (1996)
(Kahan has since revised views in this paper. See Dan Kahan, What’s Really Wrong with Shaming
Sanctions, 84 Tex. L. Rev. 2075 (2006)).
231. For additional discussions of “shaming sanctions,” see Andrew von Hirsch, Censure
and Sanctions 82-83 (1996); Stephen Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.
Rev. 733 (1998); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale
L.J. 1055 (1998).
232. Arnold, supra note 8, at 68; Deborah Rhode has suggested that “as a practical matter,
it is thought ‘easier to refuse admittance to an immoral applicant than it is to disbar him after he is
admitted.’ The vast majority of attorney misconduct remains undetected, unreported, or unprosecuted
and bar disciplinary authorities have proved highly reluctant to withdraw individuals’ means of livelihood. Given the difficulties of ex post policing, entry restrictions appear to be a logical means of
maximizing public protection.” Rhode, supra note 2, at 509.
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Evaluating Remorse in The Bar Admission Process
77
profession.232 Thus, such reviews are consequentialist attempts to gather available
evidence in order to predict with a certain degree of confidence that the applicant
is likely to uphold the standards of the bar.
Reviewing bodies are strictly gatekeepers. Remorse is one predictive tool that
allows reviewers to determine if applicants will follow the rules if they are allowed
in. It may well be that certain offenses in an applicant’s past present such a risk
that a reviewing board cannot, in good conscience, take the chance of allowing the
applicant to practice law because doing so would expose the public to unjustifiable dangers. Such a decision differs, however, from one deciding on retributive
grounds that the applicant does not deserve to practice law according to some
implicit metaphysical standard.
Perhaps some offenses are so grave that those who commit them should never
be admitted to the bar regardless of their moral transformation. The dissenting
opinion in Krule noted in this regard that “the majority has determined that regardless of the amount of positive evidence presented in petitioner’s favor, the nature of
petitioner’s offense automatically precludes his admission to the bar.”233 In denying
King’s admission to the bar, the Court determined that King’s demonstration of
rehabilitation “falls short of the ‘virtually impossible’ showing needed to erase the
stain of his serious criminal misconduct.”234 The majority in Dortch suggested this
principle outright: “in the case of extremely damning past misconduct, a showing
of rehabilitation may be virtually impossible to make.”235 Other courts have made
similar pronouncements. For example, the New Hampshire Supreme Court has
stated: “The nature of the wrong committed . . . is central to the determination
of present character and fitness to practice law, and a prior conviction for certain
serious crimes raises a presumption of unfitness. Indeed, there are some crimes
which are so serious that it may be virtually impossible for the applicant to rebut
this presumption.”236
We suspect that reviewers often wonder what sorts of offenses “cross the line”
and they would benefit from clear direction on this basic issue. If some forms of
wrongdoing effectively ban applicants from bar admission, the state courts should
name these offenses explicitly. By explicitly identifying “red flag” offenses, those
convicted of such offenses would be on notice of the consequences of their actions for a potential legal career. Such convicts could then avoid undertaking the
investment of law school and the indignity of being deemed “unfit” regardless of
whatever heroic efforts they may have undertaken to rehabilitate their character.
The key to doing this will be for some body, perhaps the National Council
of Bar Examiners or legal scholars, to undertake a systematic review of potential
disqualifying offenses and marshal all available theoretical and empirical evidence
to evaluate the correlation between certain varieties of offenses and the ethical
233.
234.
235.
236.
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In re Krule, 741 N.E. 2d at 272.
In re King, 136 P.3d at 886.
In re Dortsch, 860 A.2d. at 357 (quoting In re Matthews, 462 A.2d 165, 176 (N.J. 1983)).
Application of T.J.S, 692 A.2d at 500 (citations omitted).
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practice of law. If some offenses provide an unacceptable likelihood of recidivism
while practicing law, the courts, with this type of data, should set their policies
accordingly. Such studies, we believe, would much better protect the public interest than the extemporaneous findings of members of individual review committee
members regarding which prior offenses preset which sorts of dangers to the public and how an applicant’s remorse mitigates such risks.
In some respect, the very language that we are to judge the “character” of the
applicant betrays the true role of the reviewers. “Character” is a contested term
generating thousands of years of debate, often within diverse religious traditions.
The notion that reviewers—who are often volunteers with little if any formal training in such matters—are to look into the soul of the applicant and make a binary
pronunciation regarding whether the applicant’s character is good or bad invites
impressionistic determinations. Remorse and apology, as we have seen, introduce
various additional complexities, biases, and presuppositions. For the sake of both
applicants and reviewers, we must remain mindful that the purpose of character
and fitness proceedings is to predict the likelihood that an applicant will behave according to the ethical standards of the profession. Apologies and remorse provide
indicators of the applicant’s future behavior. Hopefully the framework provided
will focus reviewers’ attention on effectively evaluating the relationship between
an applicant’s remorse and the likelihood that she will practice law ethically.
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