Late last month, thousands of anxious candidates from around the world learned whether they passed the July 2019 New York Bar Exam. Now that this step of the process is behind them, a more significant hurdle stands between them and admission to the New York bar: the character and fitness process. The stated mission of the Character and Fitness Committees in the four Appellate Division Departments is to determine whether the applicant possesses the "character and general fitness requisite for an attorney and counsellor-at-law." See N.Y. Jud. L. §90(1)(a); see also 22 N.Y.C.R.R. §520.12(a). For many candidates, the process will be fairly straightforward. Other candidates, however, may encounter a variety of complications, possibly owing to an unfortunate incident in their past or difficulty obtaining the required documentation to submit to the Committee. This article discusses a few key pointers that may help candidates navigate this stressful, and sometimes confusing, process.

(1) Read the rules and plan ahead. Unlike other states, New York maintains four independent Committees that assess a potential lawyer's character and fitness—one Committee for each of the four Appellate Division departments. This is important for two reasons. First, candidates must make sure they are filing their application in the right judicial department—namely the department where the New York Board of Law Examiners has certified the candidate. While this may seem obvious, we have regularly seen candidates' applications delayed because they filed in the wrong department (especially candidates who filed their application from outside New York but subsequently moved to the state). Second, the rules in the four departments are slightly different. For instance, in the First and Second Departments, candidates are not allowed to submit their application materials until: (1) they have been certified to that Appellate Division's Character and Fitness Committee and (2) they have been notified that they passed the bar. By contrast, in the Third and Fourth Departments, candidates are encouraged to submit their materials early and need not wait for their bar results. The Committees also have slightly different processes for conducting character and fitness interviews and hearings. Candidates would be wise to consult the rules for the respective committees, which can be found on the Appellate Division Department websites. Failure to follow these rules could delay the candidate's application.

(2) Choose your supporters carefully. As part of the character and fitness application, candidates are required to submit affidavits attesting to their good moral character. The affiants must know the candidate for at least two years and may not be: (1) associated with the applicant's present employer; (2) related to the applicant by blood or marriage; (3) a present applicant to the bar; or (4) faculty or administrative staff of any law school attended by the applicant. See New York State Supreme Court Appellate Division, Application for Admission To Practice as an Attorney and Counselor-at-Law in the State of New York. Beyond finding someone who meets this basic criteria, candidates should think carefully before choosing their moral character affiants. Where the applicant has a clean record, these affidavits will most likely reinforce that the candidate has the requisite character and fitness. On the other hand, if the applicant has an incident in her past that may give the reviewer pause (such as a school disciplinary matter, a criminal conviction or other legal entanglement), the moral character affidavits may play a pivotal role. A good strategy in those instances is to choose an affiant who has known the candidate since the time of the troubling incident and can attest that the candidate has learned from the incident and changed her ways.

(3) The cover up is always worse than the crime. Question 27 on the Admission Application states: "Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?" This means any arrest, charge, and/or conviction. Candidates will often ask us: "Does this include the ticket I received when I was 19 for underage drinking?" Yes. "Does this include that night I skinny-dipped during spring break and spent 24 hours in jail but was released without charges?" Yes. "Does this include that time I was arrested for chaining myself to the fence of a nuclear power plant?" Yes. "But these records were expunged." It doesn't matter. "How will the Committee ever find out about it?" It doesn't matter. In the world of attorney admissions, the cover-up is almost always worse than the crime. When it comes to any arrest, conviction, or other interaction with law enforcement, the best strategy is to be forthcoming. In our experience, the Committee would much rather see an application where a candidate is completely forthcoming and tells a story of rehabilitation than a candidate who fails to disclose an arrest or conviction and the Committee finds out about it on its own. After all, the Committee's task is to determine whether the candidate possesses the requisite moral character and fitness now, not when the incident occurred. So, as much as a regrettable event may show poor judgment in the past, failure to disclose the incident may be evidence of poor judgment in the present.

(4) Be consistent and don't guess. The Admission Application requests a great deal of information about a candidate's personal, professional and educational background. Although the Committee relies on the candidate to provide this information in the first instance, the Committee may request backup documentation either from the candidate or third parties. As noted, this is one reason why it is important to gather all relevant materials as early as possible, since it can significantly delay an application if a candidate is required to chase down documents after receiving a follow-up request from the Committee. But backup documentation is important for another reason: it ensures that the candidate can tell a consistent story about his or her past. This is particularly important where a candidate must disclose a contact with law enforcement (see Application Section F) or involvement in a civil proceeding of some kind (see Application Section G). If a candidate's answer on his or her application differs from the underlying documentation, the discrepancy may give the reviewer pause. Similarly, when it comes to prior arrests or convictions, candidates should review their law school applications to see whether they were required to disclose the incident to their law school. If the answer is yes but the candidate did not disclose the incident, the Committee may catch the discrepancy and want an explanation. At the end of the day, applying to the bar is a bit like Public Relations 101: If you have something to explain, be truthful, be consistent, and get ahead of the story so that you can frame the narrative.

(5) Keep calm and carry on. When Committee's staff determines that a candidate's application is complete, the Committee will notify the candidate of a time and place to be interviewed by a member of the Committee. The Committee may also ask the applicant to submit additional documentation before the interview. Candidates should approach the interview as an opportunity to put his or her application in context. If the candidate had to disclose a troubling incident in his or her past (see above), the interview is an opportunity for the candidate to show a member of the Committee that the incident was an aberration and the candidate is a very different person today. To that end, candidates should also be prepared with clear and concise answers for difficult questions, such as questions about prior arrests or convictions.

(6) Understand your avenues for review. Not everyone will sail through the admissions process. After a candidate's interview, the Committee may request more information before making a decision or may decide that a candidate does not currently meet the standard for admission. If either of those things happen, candidates should understand the available avenues for review. If the Committee rejects the interviewer's recommendation, the Candidate is entitled to a formal hearing before a panel of Committee members. After the hearing, the panel will issue a recommendation to the full Committee, after which the Committee will issue a final decision on whether to approve the candidate's application. (The Committee may also defer the application for a period of six months. See 22 N.Y.C.R.R. §805.1(j); 22 N.Y.C.R.R. §602.1(j).) If denied, the candidate may petition the Appellate Division having jurisdiction over the Committee to review the Committee's decision. See 22 N.Y.C.R.R. §805.1(m); 22 N.Y.C.R.R. §602.1(m). An appeal to the appellate division is the applicant's last shot and the court will decide to admit the candidate or uphold the Committee's decision. Although the court generally gives the Committee significant deference, it is not unheard of for the court to overturn the Committee's decision, especially after thorough briefing and where the candidate presents compelling evidence.

The character and fitness process is a highly individualized determination and each candidates' experience will be unique. Some applicants will sail through the process, while others may be required to make a compelling case for admission. That can be a nerve-racking experience. But understanding the process and having a clear plan should afford some degree of comfort to candidates who may have a longer road towards admission.

Tyler Maulsby is counsel to the litigation, legal ethics & professional responsibility, and securities fraud & white-collar defense practice groups, at Frankfurt Kurnit Klein & Selz. Nicole Hyland is a partner in the firm's litigation and professional responsibility groups.