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The successful completion of character and fitness requirements prior to bar admission dates back to at least the 18th century, when Massachusetts required that applicants provide references from their ministers. Other states soon instituted similar requirements aimed at improving the reputation of the legal profession. After all, the earliest lawyer jokes predate William Shakespeare, and the organized bar has long been concerned about its public perception. Following Massachusetts, both New York and North Carolina instituted requirements that mandated lawyers be of virtuous character and possess honesty and good integrity. Every jurisdiction in the nation has since adopted some form of character and fitness controls.

In the early days, these requirements sometimes had the precise purpose of prohibiting from the bar, among others, women, minorities, immigrants and members of unpopular political groups. In the late 1800s, the U.S. Supreme Court famously invoked an early character and fitness prohibition to prevent Myra Bradwell (and thus other women) from joining the Illinois bar because women could not enter into contracts without their husband's consent and therefore were "incompetent to fully perform the duties and trusts that belong to the office of an attorney and counselor." Bradwell was eventually allowed to join the bar and became the first woman to be admitted to the U.S. Supreme Court bar.

Now, in every U.S. jurisdiction, prior to being admitted to the bar, in addition to standard background check information, character and fitness committees routinely ask candidates probing questions about their pasts, which include not only criminal convictions but drug and alcohol use, traffic infractions (including parking tickets), mental health disclosures, involvement in past lawsuits, financial matters and bankruptcies. These requirements often require disclosure from the time an applicant left elementary school, which generally happens in the United States around age 12. The ostensible goal of this arduous process is to protect the profession and the public from unscrupulous individuals.

But too often these requirements may mean a roadblock to aspiring attorneys who have much to contribute to the profession. It is long past time to reexamine the character and fitness process and critically scrutinize the patchwork, inconsistent and ambiguous standards applied by bar admissions and character and fitness committees. We recognize that serving on such a committee is an enormous commitment of time and energy and a thankless task that most often occurs on a volunteer basis. At the same time, our profession should be consistent and clear in its goals and ensure that our stated policy preferences are not only relevant and correct but actually supported by the processes that we have put in place. In other words, we owe it to bar applicants to ensure that these expensive, time-consuming and strenuous application processes do improve the profession by protecting the public.

A number of reforms are necessary. Over two years ago, Washington state eliminated questions that forced applicants to disclose whether they had ever "experienced, been diagnosed with or undergone treatment" for any mental health condition in the previous five years. Answering yes permitted the bar admissions committee to request and review the relevant medical records. Washington's new application no longer forces prospective admittees to share protected health data, and physical, sensory or mental disability are no longer a factor in making character and fitness determinations. Other states, including Louisiana, Arizona, Illinois, Massachusetts, Pennsylvania and Tennessee, have altered or eliminated such questions. Some states still include such required disclosures. We have written in this space before about committing more firmly to mental health reforms in this profession, and including these questions stigmatizes mental health and substance abuse issues and discourages students from seeking necessary treatment. Moreover, it potentially keeps prospective attorneys who have addressed their mental health and substance abuse issues out of the profession—leading to a loss of resources and mentorship in the practicing bar.

Many states still probe deeply into the financial histories of law student applicants. To be fair, lawyers are often charged with holding their clients' money or property, and we need to be sure that members of our profession possess some degree of financial responsibility. However, these financial disclosures tend to unfairly disadvantage students who are economically underprivileged, which often includes first-generation college students, people of color and single parents. This seems to us fundamentally unfair, as many of these individuals will be forced to incur substantial debt to finish law school, only to then be more heavily scrutinized as a result of that substantial debt.

Drug laws are rapidly changing throughout the United States, which is yet to be reflected in the character and fitness process. Many jurisdictions still request information about drug use without distinguishing medically prescribed or therapeutic usage. New York's application, for example, asks applicants if they are "currently using any illegal drugs." While New York has joined the slew of states that are decriminalizing marijuana use, any use is still technically against federal law. Thus the only acceptable answer to this question for a New York applicant who had been prescribed marijuana for a medical condition would be yes and would require the applicant to make a disclosure of that medical condition in the ensuing explanation.

In many of the preliminary character and fitness proceedings, law students are not even afforded due process. Some jurisdictions do not allow applicants to have counsel at all, while others allow them to have counsel who can observe but not speak or advocate on their behalf. This hamstrings them from properly participating in the proceedings and in presenting evidence and building the record they will need in later proceedings, when they are afforded the ability to be represented by attorneys (if they can afford one, of course).

A recent study published by the Stanford Center on the Legal Profession and the Stanford Criminal Justice Center highlighted a number of other potential changes that would work to unlock the bar by expanding access to the profession for people with criminal records. The study, which is well worth reading, included such reforms as standardizing criminal history disclosure questions, eliminating character review of arrests that did not lead to convictions, publishing statistics annually on applicants with criminal records, and requiring that at least some members of California's bar committee have a background in psychology, substance abuse or mental health. We believe that each of these reforms would enhance transparency and provide further legitimacy to the admissions process.

Finally, each jurisdiction should provide either essential eligibility requirements or some type of precertification process for students with issues that may present character and fitness problems. In too many jurisdictions, students learn the impact of these issues on their potential bar admission only after they have invested in a legal education. It is unconscionable to tell applicants that they cannot become lawyers only after they have spent substantial time and money working toward that goal.

Underpinning the character and fitness process is the unstated assumption that past behavior predicts future behavior. We are not convinced of this causal relationship—after all, every case about a lawyer stealing money, ignoring conflicts, lying, selling drugs or otherwise behaving badly includes a lawyer who passed the character and fitness process. Likewise, as character and fitness committees have increasingly considered a candidate's rehabilitation, there are shining examples of individuals who bring much-needed diversity of life experience to the legal profession and firsthand experiences with the legal system.

Georgetown Law professor Shon Hopwood served a decade in federal prison following a series of bank robberies. He began writing legal appeals in prison and went on after his release to become a federal law clerk and professor. He now represents individuals struggling with the character and fitness process, among other endeavors. As Hopwood explained in a recent panel discussion, "It's not people coming out of prison that need the legal profession, it's the legal profession that needs us. There are so many lawyers that just haven't experienced the bottom end of America—whether that's socioeconomically, racially, criminal history, what have you—that haven't faced struggle. And we need that perspective in the profession."

Other examples abound, including the well-publicized case of Tarra Simmons, who was raised in a toxic environment that included being trafficked as a child. She was later incarcerated for drug-related crimes before being released and becoming an honors student at Seattle University School of Law. Simmons was sworn in as a lawyer in June 2018 after being denied admission by the Washington State Bar Association's Character and Fitness Board and subsequently taking her appeal to the Washington Supreme Court, which ruled in her favor, recognizing that "one's past does not dictate one's future." Simmons now uses her law degree as the executive director of Civil Survival, which assists people directly impacted by the criminal justice system. Incidentally, her story would have been impossible if she had chosen to live in Mississippi, Texas or Kansas, which prohibit all applicants with felony convictions.

While we believe that an appropriate character and fitness examination is essential to the bar admissions process, we are troubled by the archaic, outdated and inconsistent nature of the inquiries, and believe that the time to reform the process is long past due.

The views expressed here are personal to the authors and do not represent the opinions of their employers.

Board members: Aaron Swerdlow; Alex Tarnow; Andrea Guzman; Andrew Warner; Aydin Bonabi; Bess Hinson; Blair Kaminsky; Brianna Howard; Brooke Anthony; Emily Stedman; Emma Walsh; Garrett Ordower; Geoffrey Young; Holly Dolejsi; Ji Hye You; Kevin Morse; Kyle Sheahen; Lauren Doyle; Nicole Gutierrez; Quynh Vu; Rakesh Kilaru; Sakina Rasheed Foster; Sara Harris; Shishene Jing; Tamara Bruno; Tim Fitzmaurice; Trisha Rich; and Wyley Proctor.

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