California State Bar applicants’ protest-related activities, such as the kind related to the Israeli-Palestinian conflict this past year, can warrant a moral character inquiry by the State Bar, a recent policy document says.
The Sept. 23 memo, which was discussed at a recent meeting of the Committee of Bar Examiners, contains a working group’s recommendations about how to deal with bar applicants who took part in campus protests and were subject to discipline, including civil lawsuits, criminal arrests or prosecutions, over actions taken in the wake of the Israel-Hamas war.
The State Bar’s policy stresses that such evaluations of law school students applying to become members of the bar must be made on an individual basis.
“The State Bar and Committee of Bar Examiners may consider an applicant’s protest-related conduct in the context of a moral character determination,” the memo states. “A moral character inquiry, however, should always respect the First Amendment rights of the applicant, and past misconduct should be considered in the broader factual context in which it occurred.”
Such inquiries taken by the State Bar must avoid consideration of the applicant’s protected political expressions but should look at whether past wrongful or criminal actions, or actions that show disrespect for the law, would undermine public trust in the legal profession, the document titled “Moral Character Determinations and the Israeli-Palestinian Campus Protests” states.
John Banzhaf, professor emeritus of law at George Washington University in Washington, D.C., said the State Bar’s position is not, by itself, enough to keep disruptive or problematic candidates from entering the legal system.
“But it is an important first step, and could have a major impact, but the primary responsibility lies with the law schools,” Banzhaf told the Southern California Record in an email. “Law schools, including the professors and deans, have a much closer and continuing relationship with law students than (State) Bar authorities. They also have the power to establish clear rules as to what is permitted and what is not, and to administer a variety of sanctions short of preventing a graduate from practicing his chosen profession.”
Banzhaf, who has been a strong defender of First Amendment rights, filed a complaint with the State Bar against Stanford Law students who heckled Fifth Circuit Appeals Court Judge Kyle Duncan last year during an address to a campus group and whose disruptions prevented Duncan from completing his talk.
If law schools fail to address the issue of law students engaging in wrongful or disruptive acts, then bar authorities can step in as a last line of defense, he said.
“I also suspect that if bar authorities do follow through and exclude law students who engaged in wrongful and/or criminal conduct, law schools will be pressured to begin cracking down themselves, rather than become known as the law school where so many of its graduates can't practice for lack of sufficient moral character,” Banzhaf said.
He added that discussion about the issue comes at an important time because some law school students think it’s permissible to use violence as long as it’s for a good cause.
“This of course is wrong, and even a tiny number of criminals kept from practicing law because they resorted to violence would help change many minds,” Banzhaf said.