Law as a Regulated Profession
Professional Gatekeeping
Bar Admission
The requirements for bar admission vary by state, but typically
include graduation from a law school approved by the ABA or the state
barCalifornia, Vermont, Virginia, and Washington permit
apprenticeships with a licensed attorney as an alternative to law
school. New York and Maine permit a combination of some law school (2
years in Maine, 1 year in NY) and an apprenticeship.
, passage of a bar examinationWisconsin’s “diploma privilege” waives the bar exam
requirement for graduates of in-state law schools (University of
Wisconsin and Marquette University).
& the MPREWisconsin and Puerto Rico do not require the MPRE for
bar admission.
, and a character and fitness standard.
Rules Governing Admission to the Practice of Law in the State of North Carolina
§ .0601 Burden of Proof
Every applicant shall have the burden of proving that the applicant possesses the qualifications of character and general fitness requisite for an attorney and counselor-at-law and is possessed of good moral character and is entitled to the high regard and confidence of the public.
.0603 Failure to Disclose
No one shall be licensed to practice law in this state:
(1) who fails to disclose fully to the Board, whether requested to do so or not, the facts relating to any disciplinary proceedings or charges as to the applicant’s professional conduct, whether same have been terminated or not, in this or any other state, or any federal court or other jurisdiction, or
(2) who fails to disclose fully to the Board, whether requested to do so or not, any and all facts relating to any civil or criminal proceedings, charges or investigations involving the applicant (unless expunged under applicable state law), whether the same have been terminated or not in this or any other state or in any of the federal courts or other jurisdictions.
The North Carolina Board of Bar Examiners has published “guidelines”, giving examples of conduct and other information that the Board may consider in assessing an applicant’s character and fitness.
NCBBE, Character & Fitness Guidelines
Every applicant shall have the burden of proving that the applicant possesses the qualifications of character and general fitness requisite for an attorney and counselor-at-law, and is possessed of good moral character and is entitled to the high regard and confidence of the public.
The term “good moral character”, includes but is not limited to the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary and personal responsibility and of the laws of North Carolina and of the United States and a respect for the rights and property of other persons. The term “fitness” includes but is not limited to, the mental or emotional stability of the applicant to practice law in North Carolina.
In satisfying the requirements of good moral character and fitness, applicants should be persons whose record of conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them and whose record demonstrates the qualities of honesty, trustworthiness, diligence, responsibility and reliability.
The revelation or discovery of any of the following may be treated as cause for further inquiry before the Board decides whether the applicant possesses the requisite character and fitness to practice law. The foregoing is inclusive of but not limited to:
Unlawful conduct
Academic misconduct.
Making or procuring any false or misleading statement or omission of relevant information including any false or misleading statement or omission on the application for admission to a college or university, a law school, or to the North Carolina Bar or any amendment or in any testimony or any sworn statement submitted to the Board.
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, including failure to pay child support.
Military Misconduct. A discharge other than honorable.
Evidence of current mental or emotional impairment.
Evidence of drug or alcohol misuse, abuse or dependency.
Denial of admission to the Bar in any other jurisdiction on character and fitness grounds.
Disciplinary action by a lawyer, disciplinary agency, or other professional disciplinary agency of any jurisdiction.
Any other conduct which reflects adversely upon the character or fitness of the applicant.
A. Unlawful conduct:
North Carolina allows an applicant to omit reference to any arrest, charge or conviction that has been expunged by a duly entered order of expunction pursuant to Article 5 of Chapter 15A of the General Statutes of North Carolina. For any offenses that have not been expunged as outlined above, the Board may inquire into arrests even if no conviction resulted. There are many reasons why arrests do not result in convictions, and many of them have no bearing on guilt or innocence.
Other than offenses that have been expunged as outlined above, the Board is authorized to inquire into all areas of possibly relevant applicant misconduct. The applicant is required to report such incidents, and to provide evidence of rehabilitation, if relevant, and evidence of current good character. The occurrence of an acquittal or dismissal is relevant but is not dispositive of the issue. This is not to suggest that the Board will assume that any arrest was due to guilty conduct on the part of an applicant. The applicant’s obligation is to be completely forthright regarding all matters about which the Board inquires.
If, at the time of the application, criminal charges are pending against the applicant, the Board will table the application until these charges are resolved. If a conviction results in probation, restitution or some other sentence, the Board will not consider the application until the sentence has been served and probation completed. The Board will then proceed to investigate the facts and circumstances that led to the criminal charges.
B. Making a false statement:
Dishonesty in dealings with employers, schools (including applications for admission) and authorities, including the Board of Law Examiners, is grounds for denial of bar applications. Giving false information on the application or failing to be entirely forthcoming and completely candid in the application process is a serious error which will have negative consequences for an applicant. With respect to non-disclosure on the law school application the Board will require at a minimum evidence that the applicant has made full disclosure of the erroneous or omitted information to the law school administration together with the action if any taken by the law school.
C. Neglect of financial responsibilities:
The Board recognizes that mishandling of client funds is a frequent and serious cause for professional discipline. While admission to the bar does not require a perfect credit record, the Board is interested in whether applicants have dealt honestly and responsibly with their creditors, and whether they are doing so at the time of application.
Responsible dealings generally include but are not limited to keeping in contact with the creditor, making payment arrangements, and meeting the terms of those arrangements. If the applicant currently has unpaid collections, judgments, liens, or charged off accounts, in the absence of unusual mitigating circumstances, the Board considers it important that the applicant demonstrate several months payments as agreed to show a good faith effort to clear the debts.
If an applicant has defaulted student loans, the Board may in its discretion hold the application in abeyance until the applicant has made arrangements with the lender(s) for repayment of the loan(s) and has made several months of consecutive and uninterrupted monthly payments pursuant to the plan agreed to by the lender(s). Any arrearage in child support must be paid before an applicant will be certified by the Board.
D. Evidence of current mental impairment:
Evidence of current mental impairment, including evidence of impairment due to psychiatric conditions, is one of the factors about which the Board must inquire in determining the applicant’s fitness to practice law. Board members recognize that the stresses of law school, as well as other life factors, frequently result in applicants seeking psychiatric or psychological counseling. The Board encourages any applicant to obtain such counseling or treatment if needed. The applicant should not allow the bar application process to deter them from obtaining treatment or counseling. Applicants should be aware that the Board looks favorably on applicants’ self-recognition of their need for treatment and appropriate utilization of professional services.
E. Drug or alcohol dependency:
Evidence of impairment due to drug or alcohol dependence or abuse is a factor that must be considered by the Board in determining the applicant’s fitness to practice law. The applicant should be prepared to provide treatment records as well as other records of incidents which were associated with any impairment. The Board may require applicants to obtain a drug or alcohol evaluation from a licensed professional recommended by the Board.
An applicant who has a problem with drugs or alcohol is strongly encouraged to get the counseling or treatment needed as soon as possible. If the applicant has been impaired due to chemical dependency or abuse, the applicant’s recognition of the problem and the treatment record will be important positive evidence of rehabilitation, regardless of the seriousness of any misconduct which may have arisen from the chemical dependency.
F. Evidence of Rehabilitation:
The Board shall determine whether the character and fitness of an applicant qualify the applicant to take the North Carolina Bar Examination or to be admitted by comity. In making this determination, the following factors should be considered in assigning weight and significance to prior conduct:
The applicant’s age at the time of the conduct.
The recency of the conduct.
The reliability of the information concerning the conduct.
The seriousness of the conduct.
The factors underlying the conduct.
The cumulative effect of the conduct or information.
The applicant’s candor in the admissions process.
The materiality of any omissions or misrepresentations.
The evidence of rehabilitation and the applicant’s positive social contributions since the conduct.
Evidence of rehabilitation is one of the main factors the Board uses to determine whether past problems should lead to denial of an application. Under Rule .0601 of the Board’s Rules, every applicant has the burden of proving that the applicant possesses the qualifications of character and general fitness requisite for an attorney and counselor-at-law and is possessed of such good moral character as to be entitled to the high regard and confidence of the public.
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 but are not limited to the following elements:
Absence of recent misconduct
Strict compliance with the specific conditions of any disciplinary, judicial, administrative or other order, where applicable
Impeccable character and moral standing in the community
Good reputation for professional ability, where applicable
Sufficiency of the punishment including payment of fines and restitution made; including the restitution of funds or property, where applicable
Applicant’s current attitude about prior offenses (acceptance of responsibility and renunciation of past wrongdoing and remorse)
Lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative or other proceeding
Personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future
Applicant’s constructive activities and accomplishments subsequent to the criminal conviction
Applicant’s candor, sincerity and full disclosure in character and fitness proceedings
Positive actions beyond those one would do for self-benefit including but not limited to working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence or maintaining substantial involvement in other charitable, community or educational organizations whose value system, overall mission and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens
Demonstration of the applicant’s understanding of the responsibility to the administration of justice and the practice of law
Merely showing that an individual is now living as and doing those things that this person should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. The requirement of a positive action is appropriate for applicants for admission to the bar because service to one’s community is an implied obligation to members of the Bar.
The Board will not consider witness testimony or evidence offered by a witness in support of the applicant on any issue listed above unless the witness has been fully informed of the misconduct before offering the evidence.
Model Rules of Professional Conduct, Rule 8.1
Bar Admission & Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
In re Converse, 602 N.W.2d 500 (Neb. 1999)
Paul Raymond Converse appeals a decision of the Nebraska State Bar Commission (Commission) denying his request to take the July 1998 Nebraska bar examination. Converse claims that the decision of the Commission should be reversed because the Commission rested its denial of Converse’s application, at least in part, upon conduct protected by the First Amendment to the U.S. Constitution and, in the alternative, that Converse’s conduct did not constitute sufficient cause under Nebraska law for denying his application on the ground of deficient moral character. For the reasons that follow, we affirm the decision of the Commission.
Factual Background
In 1998, Converse applied for permission to sit for the Nebraska bar examination. On June 29, 1998, Converse was notified by letter that the Commission had denied permission for him to take the July 1998 Nebraska bar examination because it had determined that Converse lacked the requisite moral character for admission upon examination to the Nebraska State Bar Association. On July 7, the Commission received notice that Converse was appealing the Commission’s initial determination. Converse’s appeal was heard on September 15, after which the Commission reaffirmed its initial determination and notified Converse on December 18 that he would not be allowed to sit for the Nebraska bar examination at that time.
The evidence at the Commission hearing revealed that as part of the application process, Converse was required to request that the dean of his law school submit a form certifying completion of Converse’s law school studies. That form contained a question asking, “Is there anything concerning this applicant about which the Bar Examiners should further inquire regarding the applicant’s moral character of fitness to practice law?” The question was answered, “Yes,” and the dean also noted, “Additional information will be provided upon request.” The Commission followed up on this notation by conducting an investigation which ultimately revealed certain facts regarding Converse.
After the completion of his first semester at the University of South Dakota (USD) Law School, Converse sent a letter to then assistant dean Diane May regarding certain issues—not relevant to this appeal—that he had had with the law school during fall classes, closing that letter with the phrase, “Hope you get a full body tan in Costa Rica.” Subsequent to that note, Converse had several more encounters with May, beginning with his writing letters to May about receiving grades lower than what he believed he had earned in an appellate advocacy class.
After he received a grade he believed to be unjustified by his performance in the appellate advocacy course, Converse wrote letters to May and to the USD law school dean, Barry Vickrey, requesting assistance with an appeal of that grade. In addition to writing letters to Vickrey and May, Converse also sent a letter to the South Dakota Supreme Court regarding the appellate advocacy course professor’s characterization of his arguments, with indications that carbon copies of the letter were sent to two well-known federal court of appeals judges. The letter was written to suggest the professor believed her stance on certain issues was more enlightened than that of the judges. Converse sent numerous correspondence to various people regarding the grade appeal against the specific professor. Despite all such correspondence, Converse testified at the hearing that no formal appeal of the grievance was ever filed. Converse’s grade was never adjusted.
The evidence showed that following the grade “appeal,” Converse prepared a memorandum and submitted it to his classmates, urging them to recall an “incident” in which yet another professor lashed out at him in class, and to be cognizant of the image that incident casts “on [that professor’s] core professionalism” prior to completing class evaluations. Converse also wrote a letter to a newspaper in South Dakota, the Sioux Falls Argus Leader, regarding a proposed fee increase at the USD law school. Converse immediately began investigating the salaries of USD law professors and posted a list of selected professors’ salaries on the student bulletin board, as well as writing a letter that accused Vickrey of trying to pull a “fast one.”
Converse’s next altercation at the USD law school involved a photograph of a nude female’s backside that he displayed in his study carrel in the USD law library. The picture was removed by a law librarian. In response to the removal of this photograph, Converse contacted the American Civil Liberties Union (ACLU) and received a letter indicating that his photograph might be a protected expression under the First Amendment. Once again, Converse went to the student newspaper to alert the student body of the actions of the law school authorities, accusing them of unconstitutional censorship.
Converse redisplayed the photograph once it was returned by the law librarians. Vickrey received several complaints about the photograph from other students, classifying Converse’s behavior as “unprofessional and inappropriate.” Upon Converse’s redisplay of the photograph, Vickrey sent him a memorandum explaining that the picture would not be removed only because Vickrey did not want to involve the school in controversy during final examinations. Converse testified that he redisplayed the photograph in order to force the alleged constitutional issue.
The evidence also revealed that Converse filed an ethics complaint with the North Dakota Bar Association regarding certain correspondence between Vickrey and a retired justice of the North Dakota Supreme Court. The complaint was dismissed. Converse went to the USD student newspaper, claiming that a letter from a retired North Dakota justice to the ACLU, in response to questions from Vickrey, was a violation of professional ethics (apparently Model Rules of Professional Conduct Rule 4.2 (1999), which precludes a lawyer from discussing matters with opposing parties the lawyer knows to be represented by counsel). In addition to going to the press, Converse also contacted the president of USD, referring to Vickrey as an “incompetent” and requesting that Vickrey be fired. In addition to this incident, Converse reported his suspicions about USD’s student health insurance policy to the student newspaper under the title of “Law Student Suspects Health Insurance Fraud,” as well as in a separate article alleging that USD had suppressed an investigation of its insurance carrier.
The Commission also heard testimony regarding Converse’s attempt to obtain an internship with the U.S. Attorney’s office in South Dakota. Converse arranged for the internship on his own, only to have his request subsequently rejected by the law school. Upon receiving his denial, Converse sent a complaint to all of USD’s law school faculty members. Vickrey testified that Converse’s internship was rejected because he failed to comply with the law school’s procedures regarding internships. Converse then contacted the chairperson of the law school committee of the South Dakota State Bar Association with his complaint, expressly referring to Vickrey as being “arrogant.” There is no indication of a response from the chairperson in the record.
The issue next considered by the Commission was that of various litigation threatened by Converse. Converse indicated that he would “likely” be filing a lawsuit against Vickrey for violations of his First Amendment rights. Converse was also involved in a dispute with other law students, in which he threatened to file a lawsuit and warned the students that all lawsuits in which they were involved would need to be reported to proper authorities when they applied to take a bar examination. Further, Converse posted signs on the bulletin board at the law school denouncing a professor, in response to the way in which Converse’s parking appeal was handled, and then went to the student newspaper to criticize the process and those involved in that appeal.
One of the final issues addressed by the Commission in its hearing was that of a T-shirt Converse produced and marketed on which a nude caricature of Vickrey is shown sitting astride what appears to be a large hot dog. The cartoon on the shirt also contains the phrase “Astride the Peter Principle,” which Converse claims connotes the principle that Vickrey had been promoted past his level of competence; however, Converse admits that the T-shirt could be construed to have certain sexual overtones. Converse admitted that the creation of this T-shirt would not be acceptable behavior for a lawyer.
In response to not being allowed to post signs and fliers at the law school, Converse sent a memo to all law students in which he noted to his fellow students that his “Deanie on a Weanie” T-shirts were in stock. In that same memo, Converse included a note to his schoolmates:
So far 4 causes of action have arisen, courtesy Tricky Vickrey. [He then listed what he believed the causes of action to be.] When you pass the SD Bar, if you want to earn some atty [sic] fees, get hold of me and we can go for one of these. I’ve kept evidence, of course.
Vickrey asked Converse not to wear his T-shirt to his graduation ceremony, and Converse decided that “it would be a better choice in his life not to go to that commencement.” Converse acknowledges that Vickrey’s request was made in a civil manner.
The evidence also revealed that prior to law school, Converse, in his capacity as a landlord, sued a tenant for nonpayment of rent and referred to the tenant as a “fucking welfare bitch.” At the hearing, in response to questioning from the Commission, Converse testified at great length as to how he tends to personally attack individuals when he finds himself embroiled in a controversy.
After the Commission notified Converse that he would not be allowed to sit for the Nebraska bar examination, Converse appealed the adverse determination to this court.
Assignments of Error
Converse claims that the Commission erred in basing its decision, in part, upon conduct and speech arguably protected by the First Amendment; not making Converse aware of all of the “charges” against him in the proceedings in violation of the 14th Amendment; and determining that Converse’s conduct gave rise to sufficient cause under Nebraska law for the Commission to deny his application to sit for the Nebraska bar examination.
Analysis
Converse first assigns as error that the Commission’s determination should not stand because it is based in large part upon speech that is protected by the First Amendment. Thus, the threshold question we must answer is whether conduct arguably protected by the First Amendment can be considered by the Commission during an investigation into an applicant’s moral character and fitness to practice law. We answer this question in the affirmative.
There are four U.S. Supreme Court cases that provide particular guidance with respect to this issue. In Konigsberg v. State Bar, 366 U.S. 36 (1961), the bar applicant argued that when the California bar commission forced him to either answer questions about his affiliation with the Communist Party or to face the repercussions of not being certified as possessing the required moral character to sit for the bar, the commission violated his First Amendment rights. The Supreme Court disagreed, pointing out that “regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbids when they have been found justified by subordinating valid governmental interests.” In the context of a character inquiry, “it is difficult, indeed, to imagine a view of the constitutional protections of speech and association which would automatically exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent.” The Court balanced the effect of allowing such questions against the need for the state to do a complete inquiry into the character of an applicant and concluded that questions about membership would not chill association to the extent of harm caused by striking down the screening process. The Court held that requiring the applicant to answer the questions was not an infringement of the applicant’s First Amendments rights.
In 1971, the Court was once again confronted with the issue and decided a trilogy of cases concerning the bar admissions procedures of various states. It was the final case in this trilogy, Law Students Research Council v. Wadmond, that clarified the law as to the appropriate depth of a state bar commission’s inquiry on an applicant’s moral character. The Court declined to uphold a First Amendment attack against the admission procedure of the New York bar association. The Court upheld the statute, which required that the admitting authority be “‘satisfied that [the applicant] possesses the character and general fitness requisite for an attorney and counsellor-at-law.’” The Court declared that a state is constitutionally entitled to make such an inquiry of an applicant for admission to the bar and placed its imprimatur upon a state’s conducting a preliminary inquiry into the moral character of those seeking admission.
Converse conceded at oral argument that the Commission’s decision cannot be based solely on an applicant’s exercise of First Amendment freedoms but that it is proper for the Commission to go behind the exercise of those freedoms and consider an applicant’s moral character. That is exactly what was done by the Commission in the instant case. An investigation of Converse’s moral character is not a proceeding in which the applicant is being prosecuted for conduct arguably protected by the First Amendment, but, rather, “an investigation of the conduct of [an applicant] for the purpose of determining whether he shall be admitted.” Converse’s reliance upon cases where a judgment was invalidated at least in part because it was based on conduct protected by the First Amendment is therefore misplaced.
Were we to adopt the position asserted by Converse in this case, the Commission would be limited to conducting only cursory investigations of an applicant’s moral character and past conduct. Justice Potter Stewart, writing for the majority in Law Students Research Council v. Wadmond, noted that the implications of such an attack on a bar screening process are that no screening process would be constitutionally permissible beyond academic examination and an extremely minimal check for serious, concrete character deficiencies. “The principle means of policing the Bar would then be the deterrent and punitive effects of such post-admission sanctions as contempt, disbarment, malpractice suits, and criminal prosecutions.” Assuming but not deciding that Converse’s conduct may have been protected by the First Amendment to the U.S. Constitution, Law Students Research Council v. Wadmond makes clear that a bar commission is allowed to consider speech and conduct in making determinations of an applicant’s character, and that is precisely what has occurred in the instant case. As aptly stated by the South Dakota Supreme Court in In re Egan, 24 S.D. 301 (1909):
There can be such an abuse of the freedom of speech and liberty of the press as to show that a party is not possessed “of good moral character,” as required for admission to the bar of this state and therefore to require that such person be excluded from the bar of this state; and to our mind the evidence submitted here shows such an instance. “Nor can the respondent be justified on the ground of guaranteed liberty of speech. When a man enters upon a campaign of villification, he takes his fate into his own hands, and must expect to be held to answer for the abuse of the privilege extended to him by the Constitution.”
We conclude that the Commission properly considered Converse’s conduct as it reflects upon his moral character, even if such conduct might have been protected by the First Amendment. Converse’s first assignment of error is therefore without merit.
Converse next contends that the Commission violated his due process rights by not making him aware of all of the “charges” against him in these proceedings. This argument is basically that when the Commission determined that he lacked the requisite moral character and gave some examples as to why they reached such a determination, they should have provided an all-inclusive list delineating every reason on which their decision was based. We conclude that such a procedure is not required.
By alleging that he has not been made fully aware of the “charges” against him, Converse has confused this inquiry into his moral character with a trial. Such is not the case. An inquiry regarding an application to the bar is not a lawsuit with the formalities of a trial, but, rather, is an investigation of the conduct of an applicant for membership to the bar for the purpose of determining whether he shall be admitted. No charges have been filed against Converse, and he has been advised of the reasons for which his application was denied. Converse’s assignment of error that he has been denied due process of law is therefore without merit.
Converse’s third assignment of error alleges that the Commission erred by determining there was sufficient cause to deny his application to sit for the Nebraska bar exam. Much of his argument centers around his conduct being protected by the First Amendment, as discussed previously. However, the question presented is not the scope of Converse’s rights under the First Amendment, but whether Converse’s propensity to unreasonably react against anyone whom he believes opposes him reveals his lack of professional responsibility, which renders him unfit to practice law.
There is no question that “a state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar.” The Court has also stated that it must be “kept clearly in mind that an applicant for admission to the bar bears the burden of proof of ‘good moral character’—a requirement whose validity is not, nor could well be, drawn in question here.” “If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission.” Nebraska does, in fact, require a bar applicant to show that the applicant is of good moral character. Therefore, the burden is upon Converse to adequately prove his fitness to practice law in Nebraska, and the evidence will be viewed in this light.
The legal reality is that this court, and only this court, is vested with the power to admit persons to the practice of law in this state and to fix qualifications for admission to the Nebraska bar. With that in mind, we commence our analysis with the standards for moral character required for admission to the Nebraska bar as set out in our rules governing the admission of attorneys. Neb. Ct. R. for Adm. of Attys. 3 governs this situation, which provides in pertinent part:
An attorney should be one whose record of conduct justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them. A record manifesting a significant deficiency by an applicant in one or more of the following essential eligibility requirements for the practice of law may constitute a basis for denial of admission. In addition to the admission requirements otherwise established by these Rules, the essential eligibility requirements for admission to the practice of law in Nebraska are:
(a) The ability to conduct oneself with a high degree of honesty, integrity, and trustworthiness in all professional relationships and with respect to all legal obligations;
(c) The ability to conduct oneself with respect for and in accordance with the law and the Code of Professional Responsibility;
(j) The ability to conduct oneself professionally and in a manner that engenders respect for the law and the profession.
Under rule 3, Converse must prove that his past conduct is in conformity with the standards set forth by this court, and the record in this case compels the conclusion that he has failed to do so.
We considered an appeal of a similarly situated bar applicant in In re Appeal of Lane, 249 Neb. 499 (1996). In re Appeal of Lane involved an individual seeking readmission to the Nebraska bar whose past included confrontations with law school faculty, the use of strong and profane language with fellow students at his bar review course, the use of intimidating and rude conduct directed at a security guard at the place where he was taking his bar review course, and some controversial interactions with females. We held that, taken together, “these incidents show that Lane is prone to turbulence, intemperance, and irresponsibility, characteristics which are not acceptable in one who would be a counselor and advocate in the legal system,” and we upheld the denial of his application.
We explained in In re Appeal of Lane that the “requisite restraint in dealing with others is obligatory conduct for attorneys because ‘the efficient and orderly administration of justice cannot be successfully carried on if we allow attorneys to engage in unwarranted attacks on the court or opposing counsel. Such tactics seriously lower the public respect for the Bar.’” Furthermore, “‘an attorney who exhibits a lack of civility, good manners and common courtesy tarnishes the image of the bar.’” We held in In re Appeal of Lane that “abusive, disruptive, hostile, intemperate, intimidating, irresponsible, threatening, or turbulent behavior is a proper basis for the denial of admission to the bar.” Expanding on this holding, we stated:
“Care with words and respect for courts and one’s adversaries is a necessity, not because lawyers and judges are without fault, but because trial by combat long ago proved unsatisfactory.
“The profession’s insistence that counsel show restraint, self-discipline and a sense of reality in dealing with courts, other counsel, witnesses and adversaries is more than insistence on good manners. It is based on the knowledge that civilized, rational behavior is essential if the judicial system is to perform its function. Absent this, any judicial proceeding is likely to degenerate into a verbal free-for-all. Habitual unreasonable reaction to adverse rulings is conduct of a type not to be permitted of a lawyer when acting as a lawyer. What cannot be permitted in lawyers, cannot be tolerated in those applying for admission as lawyers.”
In Nebraska, In re Appeal of Lane is clearly the rule and not an exception thereto.
The evidence in this case shows that Converse’s numerous disputes and personal attacks indicate a “pattern and a way of life which appear to be [Converse’s] normal reaction to opposition and disappointment.” The totality of the evidence clearly establishes that Converse possesses an inclination to personally attack those with whom he has disputes. Such inclinations “are not acceptable in one who would be a counselor and advocate in the legal system.”
In addition to Converse’s tendency to personally attack those individuals with whom he has disputes, his pattern of behavior indicates an additional tendency to do so in arenas other than those specifically established within the legal system. This tendency is best exemplified by observing Converse’s conduct in situations where there were avenues through which Converse could have and should have handled his disputes, but instead chose to mount personal attacks on those with whom he had disputes through letters and barrages in the media.
One such incident occurred when Converse received the below average grade in the appellate advocacy course, and he wrote letters to various individuals regarding his arguments. Converse testified that he wrote letters to members of the South Dakota Supreme Court, Judge Richard Posner, Judge Alex Kozinski, and others, but filed no formal appeal. Moreover, upon return of the nude photograph, Converse testified that he redisplayed the photograph to force the issue with the university, but chose not to pursue any action regarding the alleged violation of his rights. There was also the incident regarding Converse’s internship with the U.S. Attorney’s office, where Converse went outside established procedures, arranged for the internship on his own, and then complained to all faculty and to members of the South Dakota bar when his request was denied for not complying with established procedures. Finally, there was Converse’s production and marketing of the T-shirt containing a nude depiction of Vickrey on a hot dog as a result of the ongoing tension between Vickrey and himself. Converse is 48 years old, and his actions cannot be excused as isolated instances of youthful indiscretions.
Taken together with the other incidents previously discussed, the evidence clearly shows that Converse is prone to turbulence, intemperance, and irresponsibility; characteristics which are not acceptable in one seeking admission to the Nebraska bar. In light of Converse’s admission that such conduct would be inappropriate were he already an attorney, we reiterate that we will not tolerate conduct by those applying for admission to the bar that would not be tolerated were that person already an attorney. Furthermore, Converse has consistently exhibited a tendency to cause disruption and then go to some arena outside the field of law to settle the dispute, often to an arena not specifically designed for dispute resolution. As explained by Justice Stewart in Law Students Research Council v. Wadmond,
a State is constitutionally entitled to make an inquiry [into the moral character and past conduct] of an applicant for admission to a profession dedicated to the peaceful and reasoned settlement of disputes between men, and between a man and his government. The very Constitution that the appellants invoke stands as a living embodiment of that ideal.
The record before us reflects that the Commission conducted such an inquiry and, at the conclusion thereof, correctly determined that Converse possessed a moral character inconsistent with one “dedicated to the peaceful and reasoned settlement of disputes,” but, rather, more consistent with someone who wishes to go outside the field of law and settle disputes by mounting personal attacks and portraying himself as the victim and his opponent as the aggressor. Such disruptive, hostile, intemperate, threatening, and turbulent conduct certainly reflects negatively upon those character traits the applicant must prove prior to being admitted to the Nebraska bar, such as honesty, integrity, reliability, and trustworthiness.
The result might have been different if Converse had exhibited only a “single incident of rudeness or lack of professional courtesy,” but such is simply not the case. The record clearly establishes that he seeks to resolve disputes not in a peaceful manner, but by personally attacking those who oppose him in any way and then resorting to arenas outside the field of law to publicly humiliate and intimidate those opponents. Such a pattern of behavior is incompatible with what we have required to be obligatory conduct for attorneys, as well as for applicants to the bar.
Converse has exhibited a clear lack of self-restraint and lack of judgment, and our de novo review of the record leads us to independently conclude that Converse has exhibited such a pattern of acting in a hostile and disruptive manner as to render him unfit for the practice of law in Nebraska. We conclude that the Commission’s determination to deny Converse’s application was correct, and Converse’s third assignment of error is therefore without merit.
Conclusion
The Commission correctly determined that Converse possessed insufficient moral character and was unfit to practice law in the State of Nebraska. This determination was based on an inquiry into Converse’s moral character that was both proper and constitutionally permissible. Finding no error in the Commission’s determination or the process used to reach that determination, we affirm the Commission’s denial of application.
In re Roots, 762 A.2d 1161 (RI 2000)
This case comes before us on an application by the petitioner Roger I. Roots (petitioner or Roots) seeking admission to the bar of the State of Rhode Island. Roots, who was born in October, 1967, is a 1999 graduate of the Roger Williams University School of Law. Following his law-school graduation, he took and passed the Rhode Island bar examination. In accordance with its usual procedures, this Court’s Committee on Character and Fitness (committee) examined Roots’s record and interviewed him after he had passed the bar examination. Because the committee had serious concerns relating to his character and fitness to become a member of the bar of this state, it conducted a number of hearings to determine whether it would recommend Roots’s admission to the bar. [After the hearings, the majority of the committee, with two members dissenting, voted in favor of Roots’s admission.]
To avoid an unduly long recitation of the pertinent facts concerning Roots’s application, the various reports that the majority and minority members prepared are attached to this opinion and made a part hereof. The report of the majority is appended and marked as exhibit A. The concurring report recommending admission is appended and marked as exhibit B. The minority report that Chairman Steven M. McInnis wrote is appended and marked as exhibit C. The dissenting opinion of the Attorney General’s designee is appended and marked as exhibit D. All these reports contain very similar accounts of the factual elements underlying the reports of the members of the committee. Nevertheless, we shall attempt to set forth in this opinion the important facts and circumstances that we believe justify our conclusion.
Through its hearings and by examining the material submitted in support of and in opposition to the application, the committee sought to resolve three major areas of concern about the petitioner: (1) his criminal record; (2) his candor and veracity; and (3) his ability to take and abide by the attorney’s oath. Some of the evidence was documentary in nature. In addition, extensive testimony was taken from the petitioner himself. The three areas of concern shall be dealt with separately in this opinion.
We are of the opinion that Roots’s application should be denied without prejudice to Roots reapplying at some later date after he has proven that he has truly rehabilitated himself.
I
Petitioner’s Criminal Record
In 1985, when he was eighteen years old, Roots was charged with and convicted of shoplifting in the State of Florida. He had relocated there after leaving his home in Montana during his freshman year in high school. In his bar application, Roots admitted that, following his arrest for this crime, he “failed to appear at his scheduled hearing on the matter.” He conceded that he was aware that he needed to attend the hearing but claims that his immaturity at the time caused him to disregard the court’s order. Within two months, however, the Orlando police rearrested him on the same charge. He was then detained until he could be presented to a judge. And even though the court still treated him with leniency, Roots shirked his responsibility to abide by the terms of his probation when he failed to perform the community-service condition of his sentence. (He admitted in his application to the bar that he just “left Orlando without performing the community service.”)
Within a year, however, he was arrested again in Florida and convicted of yet another crime, the felony of resisting arrest with violence. Generally, this crime involves disobeying, with the use of force (as opposed to mere flight), a police officer’s lawful attempt to arrest an alleged criminal. As reflected in the police report and in Roots’s law school application, the alleged facts of the crime reveal that Roots’s truck had collided with another vehicle. A police officer arrived at the accident scene and an argument ensued between Roots and the officer. When the officer learned that Roots had failed to pay two fines for separate moving violations and was driving on a suspended license, he attempted to take Roots into custody but Roots physically resisted the arrest. Although a federal sentencing judge would later characterize this incident as minor because, in attempting to subdue Roots, the police officer struck the only actual blow, a Florida sentencing judge, who presumably was more familiar with the relevant facts and circumstances, ultimately sentenced Roots to fifty-one weeks in prison following his nolo contendere plea after he again violated his initial three-year-probation sentence.
The petitioner then left Florida and moved to Wyoming, where he attended the Northwest Community College in Powell, Wyoming. While there, he exhibited in class a homemade air gun that he had constructed. (This may have been part of a speech presentation.) Because the authorities knew that petitioner had a prior record, they searched his dormitory room. There, they found additional weapons, including an automatic pistol, an automatic rifle with approximately 500 rounds of ammunition, and an assault rifle described as an AK-47. The petitioner was charged in federal court with being a felon in possession of firearms and with the possession of an unregistered firearm in violation of various federal statutes. Pursuant to a plea agreement, petitioner pled guilty to the registration count (relating to the air gun). The other counts were dismissed. A federal judge sentenced petitioner to twenty months in federal prison on January 10, 1992. This sentence terminated on April 4, 1993. As previously mentioned, the federal judge indicated that the petitioner’s felony conviction for resisting arrest with violence in Florida was not as serious an offense as might appear on the surface since the only injury was to the officer’s hand when he struck the petitioner in the face. Nevertheless, it was established that in purchasing the various weapons, the petitioner had filled out a number of forms in which he had misrepresented his status as a person convicted of a felony in Florida.
The applicant’s criminal record also includes the following:
(1) On at least eight occasions from the spring of 1986 to as recently as the winter of 1997, Roots was caught speeding and ordered to pay fines. These moving-traffic violations occurred in Utah, Washington, and Montana.
(2) Roots apparently ignored his previous driver’s license suspensions and flouted these dispositions because he later was charged in Georgia not once but twice in 1989 for driving on a suspended license. On the first occasion he not only drove on a suspended license, but also was issued citations for driving without a license, without insurance, and without proper registration. On the second such occasion, he was again driving on an expired registration plate and a suspended license. Roots’s bar application explains his conduct thus:
“I was without sufficient money for insurance or registration. I made it to work for several days but was pulled over by another officer only a couple days later. Again, I was arrested for driving without a license, registration, or insurance. * * * To this day I do not know what became of the cases in Georgia.”
On the present record, we do not know whether Roots has satisfied
whatever lawfully imposed fines he was obliged to pay in Georgia.
Apparently, he has not inquired about what present responsibilities — or
possible warrants for his arrest based on his failure to resolve these
matters — he still may have outstanding in Georgia.(n. 4 in opinion) Roots also has not accounted for his
1986 Utah speeding and reckless driving violations. His bar application
lists the disposition or fine for these speeding and reckless driving
violations as “u/k,” which we assume means “unknown.” Although Roots has
not forgotten about these violations, he has neglected to determine for
over fourteen years whether any sanctions remain outstanding against him
in Utah for these transgressions.
Nothing in the record shows that Roots has resolved these
matters. Moreover, even if Roots formerly lacked sufficient funds to pay
for his automobile insurance or registration, he should have arranged to
use public transportation or pursued other alternatives (for example,
carpooling with friends or co-employees), rather than driving
continuously on a suspended or revoked license as he did when he was
caught doing so on three separate occasions.
Every prospective attorney in this state must complete an application that asks for a listing of all the candidate’s “violations of * * * traffic laws or ordinances other than parking offenses.” This part of the application is not superfluous nor a mere incursion into the applicant’s privacy, and it should not be so considered. Rather, it bears a logical and appropriate relationship to the ability of a prospective attorney in this state to maintain respect for and to uphold the law. And although repeated violations of various traffic laws, in isolation, may not preclude a candidate from admission to the bar, they certainly are relevant to the moral fitness and good-character determination that must be made when evaluating the qualifications of prospective attorneys.
(3) In Florida, Roots was convicted of providing a false statement to the authorities. To be sure, Roots has admitted that he provided a false name, but it should go without saying that this crime also reflects upon a candidate’s ability to serve the public as an attorney, as well as upon the applicant’s candor and truthfulness.
In their totality, these various citations, misdemeanors, and felonies that Roots has accumulated over the years present sufficient evidence to warrant, at minimum, a significant delay in acting favorably upon his application for admission to the Rhode Island bar, especially in light of the fact that Roots has admittedly ignored and violated the terms of his two previous probationary periods. Indeed, Roots’s first probation required him to perform community services — yet he chose to ignore that mandate from the Florida court. Instead, it was only after he scuffled with an arresting police officer — itself a display of disobedience to the officer’s attempt to effect a lawful arrest — and again disobeyed the terms of his probation, that Roots was ultimately forced to serve time in prison.
We recognize that Roots has not been convicted of violating any criminal laws since his conviction on the federal weapons charge and since his release from prison in 1993 after serving his federal jail sentence of twenty months. We also acknowledge and commend Roots’s award-winning writings, his law-school class rank, his position on the student newspaper, and his service on the Roger Williams University Law Review. On the other hand, while these more recent accomplishments are indeed praiseworthy, they are largely irrelevant in establishing his moral fitness and good character to practice as a member of our bar. Indeed, no one has sought to disqualify Roots based on his academic incompetency or lack of intelligence. On the contrary, his record in this regard is conceded to be outstanding. But even some notorious criminals can point with pride to their relative intelligence. Thus, mere intelligence and academic achievement do not necessarily equate to moral fitness and good character, both of which are preconditions to becoming a member of our bar.
Notwithstanding these more recent positive factors, it is our belief that we have not yet had enough opportunity to conclude that Roots has totally rehabilitated himself, especially because his conduct during the years leading up to and including the filing of his bar application raises further questions about the depth, scope, and extent of his alleged rehabilitation. Indeed, his probationary status on the federal-weapons conviction expired only a mere four years ago, after which he then enrolled in law school and continued to engage in activities that cast doubt on his candor, truthfulness, and ability to take the attorney’s oath in good faith.
II
The Petitioner’s Lack of Candor and Truthfulness
It has been established that the petitioner was not truthful in applying for the purchase of firearms. It also has been established that petitioner was not truthful in answering a question on the bar application about the use of aliases, although he did admit to having used three aliases: Carl Davis, Rodger Roop, and Roger Bell. He indicated on his application that these aliases were used for the purpose of attending school, writing, and telephone fundraising. In his testimony before the committee, however, he admitted that the use of the alias Carl Davis was to help him evade the law after he was indicted for the weapons charge in Montana. When he assisted in a senatorial campaign, he also used another alias, Roger Bell, in order to hide his true identity when salary payments were made to him. The minority report that Chairman McInnis submitted concluded that Roots’s lack of candor in this respect would not be consistent with allowing petitioner to practice law.
We have recently affirmed that “the attorney-client relationship is ‘one of mutual trust, confidence, and good will,’ in which the attorney ‘is bound to * * * the most scrupulous good faith.’” A central purpose of requiring character review as part of the attorney-admission process is to protect those members of the public who might become clients of the practicing lawyer from those attorneys who are so morally or ethically challenged that they are unable to demonstrate the type of good character and moral fitness requisite to serving in a fiduciary capacity. As Mr. Justice Frankfurter once observed, lawyers stand
‘as a shield’ * * * in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as ‘moral character.’
The fiduciary position of trust that a lawyer assumes vis-à-vis his or her clients demands that individuals whom this Court admits to the bar should be worthy of the confidence that members of the public repose in them. An equal and complementary concern is to safeguard the administration of justice from those who might subvert it through misrepresentations, falsehoods, or incomplete disclosures when full disclosure is necessary.
As we have noted previously, Roots was not truthful in applying to buy firearms. Indeed, he repeatedly checked a box indicating that he was not a convicted felon when he applied for his gun purchases, despite previously having been convicted of a felony. Thereafter, Roots was convicted for violently resisting arrest, and ultimately spent close to a year in prison for that offense after violating his initial three-year-probation sentence. He was also well aware of his convictions at the time he applied to buy his various assault weapons, yet he failed to disclose them.
Furthermore, Roots admitted to the committee that he was less than forthcoming on his bar application about the reason for his use of the “Carl Davis” alias. Significantly, Roots submitted this untruthful application for admittance to the bar in 1999. When pressed about this discrepancy, Roots was unable to reconcile these contradictory statements.
Moreover, as mentioned above, Roots already had been convicted criminally of providing a false statement to the authorities. Such a record of dishonesty, combined with Roots’s other criminal misconduct and recent fabrication on his bar application, appears to us to justify at least a several-year delay before Roots’s application even should be considered again for his possible admission to the bar. And Roots’s use of an alias to mask his “unsavory” connections to white supremacy groups while working for the Committee to Reelect Conrad Burns, and his use of false indorsements on his paychecks, are simply further reasons for this Court to deny Roots’s application at this time.
In sum, then, we agree with the minority report that this applicant’s lack of candor is inconsistent with admitting him to practice law at this time.
III
Ability to Abide by the Attorney’s Oath
Pursuant to Article II, Rule 8 of the Supreme Court Rules, “every person who is admitted as attorney and counselor at law shall take in open court the following engagement:”
“‘You solemnly swear that in the exercise of the office of attorney and counselor you will do no falsehood, nor consent to any being done; you will not wittingly or willingly promote, sue or cause to be sued any false or unlawful suit; or give aid, or consent to the same; you will delay no man’s cause for lucre or malice; you will in all respects demean yourself as an attorney and counselor of this court and of all other courts before which you may practice uprightly and according to law, with fidelity as well to the court as to your client; and that you will support the constitution and laws of this state and the constitution and laws of the United States. So help you God.’”
Beginning in 1993 petitioner has published a number of articles — including articles as recent as 1998 — that express explicit racial and ethnic bias as well as contempt and disdain for the federal government. His 1993 article is entitled “100 Truths and One Lie” and purports to establish that members of the black race are inferior to members of the white race. Excerpts from this work are set forth in the minority report. Moreover, as recently as 1998, Roots has written that he disavows the “de facto” regime of the United States government, its laws, and, apparently, its Constitution. Similarly, he has written in support of the bogus liens that the Freemen in Montana have attempted to place on federal officials who, in his opinion, have violated certain dictates that the Freemen espouse. It is noteworthy that Roots expressed these views in writing even while he was attending law school in 1998. Roots, however, now attempts to retreat from that stance. He would now have us believe that, consistent with the oath all prospective attorneys must take, he now can swear that he will support the constitution and the laws of this state as well as those of the federal government. This oath, as well as similar oaths that prospective attorneys across the United States must take, does not violate any individual constitutional right that Roots may have to express his contrary views.
At the same time, the United States Supreme Court has stated that “citizens have a right under our constitutional system to criticize government officials and agencies. * * * Government censorship can no more be reconciled with our national constitutional standard of freedom of speech and press when done in the guise of determining ‘moral character,’ than if it should be attempted directly.” Thus, we have no intention or desire to censor or to punish Roots for his past or present political views or for exercising his rights of free speech. Nevertheless, when as here, a candidate for admission to the bar of a state has published writings that communicate his or her explicit refusal to accept our federal government as the legitimate government of this country, such a candidate raises legitimate questions about whether he or she in good faith can take and abide by the attorney’s oath to support the laws and the constitution of the United States while in the exercise of the office of attorney and counselor. For example, if a candidate for admission to the bar were to express the view that, in his or her opinion, the laws and constitution of the United States were illegitimate and, for that reason, unsupportable, but that in the exercise of his or her office as an attorney or counselor, he or she still could and, therefore, would swear to support that constitution and those laws, then the committee and this Court would be entitled, we believe, to view that candidate’s professed oath-taking ability with some degree of skepticism — especially if the candidate were a convicted felon with a history indicating a recurring lack of truthfulness and candor. While it is possible to draw and maintain a sharp line between a lawyer’s personal beliefs and his or her professional conduct, a predictive assessment of a prospective lawyer’s ability to take and abide by the attorney’s oath is a fair subject for character review when considering an applicant for admission to the bar. Here, Roots bore the burden at all times to demonstrate his moral fitness and character to practice as a lawyer in this state. But his recent 1997-1998 publications and comments disavowing the legitimacy of our federal government — especially when considered in light of his criminal record and history of other misconduct indicating a lack of forthrightness and candor — give us pause in accepting his avowal to us that he can now in good faith take and abide by the requisite attorney’s oath.
Nevertheless, in reaching this conclusion, we agree with the majority of the committee that the First Amendment inhibits both the committee and this Court from denying membership in the bar to the petitioner because of his political beliefs and unorthodox political and social ideas. All of these cases related to applicants who either were or had been at one time members of the Communist Party or refused to answer questions relating to their membership in an organization (presumably the Communist Party) that advocated the violent overthrow of the government of the United States. We also recognize, as did the majority members of the committee, that neither a criminal record nor the political views of an applicant constitute an automatic bar to his or her admission. Yet both may be relevant in assessing (1) the applicant’s candor, honesty, sincerity, and good faith in professing a willingness to take and abide by the requisite attorney’s oath, and (2) the ability of the applicant, in the exercise of his or her office as an attorney and counselor, to support the constitution and laws of the United States.
The petitioner has stated to the committee and to this Court that he will not only take the attorney’s oath if admitted to the bar, but that he will abide by it. He stated unequivocally under oath to this Court that he would not discriminate against any person for racial or ethnic reasons. He further stated that he would abide by the lawyer’s oath in all respects without any mental reservation or purpose of evasion. And he has stated to the committee that he no longer entertains his extremist views on the illegitimacy of the government of the United States.
We are of the opinion, however, that the prior record of the petitioner — including his criminal past and the other conduct referenced above demonstrating his lack of candor and truthfulness — casts such doubt upon the sincerity of Roots’s professed willingness to abide by the terms of the oath that he must take as a member of the bar of this state that his application should be denied at this time.
Conclusion
For the above reasons, we conclude that Roots’s application to the bar should be denied. The record in this case reveals far too many recent and past criminal acts, instances of untruthfulness, and a lingering inability of this candidate to take the requisite attorney’s oath in good faith. Thus, we cannot endorse Roots’s admission to the bar of this state at this time. Nevertheless, our denial of his application shall not preclude the possibility of Roots reapplying for and obtaining approval of his admission to the bar at some later time, but no sooner than two years from the date of this opinion. Moreover, if Roots reapplies for admission to the bar of this state within three years from the date of this opinion, he shall not be required to retake the bar examination. However, in addition to satisfying the committee’s usual criteria, he shall be required to demonstrate to the satisfaction of the committee and, ultimately to this Court, that, during the period between the date of this opinion and his reapplication:
He has secured and maintained gainful employment;
He has kept the peace and been of good behavior;
His writings and other conduct are consistent with his ability to take the attorney’s oath in good faith;
His previous motor vehicle and driving violations and any resulting sanctions in the states of Georgia and Utah have been satisfied and are no longer outstanding;
He has performed pro bono publico services of a substantial and continuing nature;
His post-1993 conduct and achievements outweigh the misconduct and other detrimental factors detailed in this opinion and, thus, are better indications of his moral character and fitness to practice law than his previous misconduct.
Accordingly, we hereby deny Roots’s application without prejudice to his reapplication at some later time (no sooner than two years) when a more accurate and adequate assessment of Roots’s professed rehabilitation can be undertaken.
Matter of Anonymous, 875 N.Y.S.2d 925 (N.Y. App. Div. 2009)
Applicant passed the February 2008 New York State bar exam and the State Board of Law Examiners certified him for admission to this Court. The Committee on Character and Fitness has completed its investigation of his application for admission, including an interview of applicant.
Applicant has disclosed various student loans with balances now totaling about $430,000. He has stated that the loans are currently delinquent but professes good faith intentions to pay them. He has attributed his nonpayment to the downturn in the economy and bad faith negotiations on the part of some of the loan servicers. Our review of the application indicates that the disbursement dates of the loans cover a 20-year period, from as early as 1985. Applicant has not made any substantial payments on the loans. He has not been flexible in his discussions with the loan servicers. Under all the circumstances herein, we conclude that applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.
Unauthorized Practice of Law
People v. Alfani, 125 A. 671 (N.Y. 1919)
Crane, J.
The defendant was convicted by the Special Sessions of the city of New York, borough of Brooklyn, of violating section 270 of the Penal Law. He was not an attorney and counselor-at-law, but had for a long period of time drawn legal papers and instruments for hire and held himself out to the public as being in that business. His conviction was reversed by the Appellate Division on the ground that such acts did not constitute practicing law and, therefore, were in nowise contrary to the statute.
The question is fairly presented whether the things done by Alfani are open to the public generally or require a license from the state before a person can perform them for compensation and as an occupation.
Henry Alfani had lived at 475 Park avenue, Brooklyn, New York, since 1888. In the basement he had an office in which he carried on a real estate and insurance business. Distinct from such work he also drew legal papers, contracts for real estate, deeds, mortgages, bills of sale and wills. A large sign placed over his dining-room or basement window bore the words in big letters “Notary Public—Redaction of all legal papers.” The defendant said “redaction” meant the drawing of legal papers. He was sixty years of age and evidently an Italian, as he testified in part through the Italian interpreter.
On December 27, 1917, two investigators of the state industrial commission called on Alfani at his office and asked him to look after a matter for them. Gallo, one of the men, said his name was George Lecas and that he lived at 23 Cook street, Brooklyn, where he had a soda water stand which together with a stock of cigars, cigarettes, candies and malted milk he had sold to the other man whom he introduced as Geannelis. The terms of the sale were these: the purchaser agreed to assume the seller’s contract to pay five dollars twice a month to the American Siphon Company from which the fountain had been obtained, $65 being still due thereon; the stock was to be $26 cash and the good will $145 to be paid for by Geannelis—$50 that night, $50 January 15th and $45 January 31st. The last payment was to be extended ten days if the purchaser was unable to meet it on time. The defendant advised that a bill of sale be drawn and that the purchaser give back a chattel mortgage. He explained about the necessity of filing the mortgage in the county clerk’s office and the foreclosure by a city marshal in case of non-payment. The papers were drawn and executed for which the defendant charged and received four dollars. Before leaving Gallo said: “In case I have any trouble of any kind and I need any legal advice can I come back to you?” to which Alfani replied, “Yes.”
By section 270 of the Penal Law it is a misdemeanor for any natural person “to make it a business to practice as an attorney-at-law * * * or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, * * * without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state.” To practice or to represent as being entitled to practice law in any manner is prohibited to those not lawyers.
The Appellate Division was of the opinion that this section related only to practice connected with court or legal proceedings. The restriction is broader than this for effect must be given to the words “or in any other manner.” The words “as aforesaid” have reference to practice in the courts mentioned, and the following “or in any other manner” refer to the practice as an attorney-at-law out of court and not in legal proceedings. Practicing as an attorney-at-law in or out of court or holding oneself out as entitled to so practice is the offense. Not only is this the natural reading of the section but the lower court in a previous decision held that practicing law was not confined to court work.
In Matter of Duncan it is said: “It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law. An attorney-at-law is one who engages in any of these branches of the practice of law.”
In Eley v. Miller the court stated: “As the term is generally understood, the practice of law is the doing or performing services in a court of justice in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.”
To make it a business to practice as an attorney-at-law not being a lawyer is the crime. Therefore, to prepare as a business legal instruments and contracts by which legal rights are secured and to hold oneself out as entitled to draw and prepare such as a business is a violation of the law.
It does not lead us to a conclusion to investigate the powers of notaries public under the Roman law or of scriveners and notaries under the English system past or present. The legislators who enacted section 270 knew what practicing law was in this state as many of them were of the profession and they were dealing with that as carried on here at the present day. It is common knowledge for which the above authorities were hardly necessary, that a large, if not the greater, part of the work of the bar to-day is out of court or office work. Counsel and advice, the drawing of agreements, the organization of corporations and preparing papers connected therewith, the drafting of legal documents of all kinds, including wills, are activities which have long been classed as law practice. The legislature is presumed to have used the words as persons generally would understand them, and not being technical or scientific terms “to practice as an attorney-at-law” means to do the work, as a business, which is commonly and usually done by lawyers here in this country.
The reason why preparatory study, educational qualifications, experience, examination and license by the courts are required, is not to protect the bar as stated in the opinion below but to protect the public. Similar preparation and license are now demanded for the practice of medicine, surgery, dentistry and other callings, and the list is constantly increasing as the danger to the citizen becomes manifest and knowledge reveals how it may be avoided.
Why have we in this state such strict requirements for admission to the Bar? A regents’ certificate or college degree followed by three years in a law school or an equivalent study in a law office marks the course to a bar examination which must finally be passed to entitle the applicant to practice as an attorney. Recognizing that knowledge and ability alone are insufficient for the standards of the profession, a character committee also investigates and reports upon the honesty and integrity of the man. And all of this with but one purpose in view and that to protect the public from ignorance, inexperience and unscrupulousness.
Is it only in court or in legal proceedings that danger lies from such evils? On the contrary, the danger there is at a minimum for very little can go wrong in a court where the proceedings are public and the presiding officer is generally a man of judgment and experience. Any judge of much active work on the bench has had frequent occasion to guide the young practitioner or protect the client from the haste or folly of an older one. Not so in the office. Here the client is with his attorney alone, without the impartial supervision of a judge. Ignorance and stupidity may here create damage which the courts of the land cannot thereafter undo. Did the legislature mean to leave this field to any person out of which to make a living? Reason says no. Practicing law as an attorney likewise covers the drawing of legal instruments as a business.
That such work is properly that of an attorney seems to be recognized by other provisions of law. Section 88 of the Judiciary Law, relating to the disbarment of attorneys, makes it the duty of the Appellate Division in each final order of suspension to forbid the giving to another of an opinion as to the law or its application or of any advice in relation thereto.
Section 835 of the Code of Civil Procedure provides in substance that an attorney shall not be allowed to disclose a communication made by his client to him or his advice given thereon, in the course of his professional employment. Such communications have referred to a deed; an affidavit; a chattel mortgage and a bill of sale.
Also the summary power of courts over attorneys may be exercised in matters unrelated to court proceedings.
Even the instances cited below of scriveners and notaries public in foreign lands drawing legal papers sustain this contention, as the laws require such to be trained and experienced men.
The duties of notaries public here are defined by section 105 of the Executive Law. Only in the name is there a correspondence to the continental official.
All rules must have their limitations, according to circumstances and as the evils disappear or lessen. Thus a man may plead his own case in court, or draft his own will or legal papers. Probably he may ask a friend or neighbor to assist him.
We recognize that by section 270 and also 271 a person, not a lawyer, may appear for another in a court not of record outside cities of the first and second class. The results cannot be serious. The cases are generally of minor importance to the parties; such occasions are seldom frequent enough to make it a business, and the procedure is so informal as to constitute the judge really an arbiter in the dispute.
We must, therefore, in harmony with these views, reverse the judgment of the Appellate Division and affirm that of the Special Sessions.
McLAUGHLIN, J. (dissenting).
The defendant was convicted of violating section 270 of the Penal Law. [On appeal], the judgment of conviction was reversed and he was discharged. The People, by permission, appeal to this court.
So much of the section of the Penal Law under which the conviction was obtained as is material to the question presented on appeal, reads as follows: “Practicing or appearing as attorney without being admitted and registered. It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as attorney and counsellor-at-law for another in a court of record in this state or in any court in the city of New York, or to make it a business to practice as an attorney-at-law or as an attorney and counsellor-at-law for another in any of said courts * * * or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, * * * without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state * * *.”
The defendant, at the time stated in the information, was a notary public, living at 475 Park avenue, Brooklyn, in the basement of which he had a small office for the transaction of business. Over the entrance of the office was the following sign:
On the 27th of December, 1917, one Gallo, special investigator of the state industrial commission, in company with one Geannelis, entered defendant’s office and he asked them what they wanted. Gallo stated that he was selling his store, which consisted of a soda water stand, together with a stock of cigars, cigarettes, etc., to Geannelis, for a certain consideration, which was named, part of which was to be paid down and the balance in installments. Gallo also stated there was a certain amount due to the American Siphon Company on the purchase price of the soda water fountain, which Geannelis was to assume and pay. The defendant advised that Gallo give a bill of sale to Geannelis and that he give a chattel mortgage for the amount remaining unpaid. He also explained it would be necessary to file the mortgage in the county clerk’s office, so that the same could be foreclosed by the city marshal in case of non-payment. His suggestions as to the bill of sale and mortgage were followed and he thereupon prepared the same, for which he was paid four dollars.
It is contended that this transaction, together with the sign, amounted to a violation of the provisions of the statute quoted. I have been unable to reach this conclusion. The statute, unless something is read into it which does not there appear, is to prohibit a natural person practicing or appearing as an attorney-at-law in the courts mentioned, or to hold himself out to the public as being entitled to practice in such courts. The defendant did neither. Clearly, the drafting of the bill of sale and chattel mortgage was not practicing or appearing as an attorney-at-law in any court. Nor did the words on the sign, “Redaction of all legal papers” indicate that he was holding himself out as entitled to practice in such courts. The words “in any other manner,” upon which stress is laid, relate to what precedes them in the sentence, viz., the courts referred to. The phrase, although general in its nature, is limited and qualified by the prior specific designations. The rule of ejusdem generis applies. Where the enumeration of specific things is followed by some more general word or phrase, such general word or phrase is held to refer to the things of the same kind.
At the time defendant was convicted it was not illegal, and is not now, for natural persons to draft papers usually intrusted to lawyers. Judicial notice may be taken of the fact that in the rural districts of the state leases, deeds, bills of sale, chattel mortgages, wills and other instruments creating legal obligations are frequently prepared by laymen, notaries public and justices of the peace. Indeed, a natural person could, at the time defendant was convicted, appear for another in a Magistrate’s Court, or before a justice of the peace, except in cities of the first and second class, and receive pay therefor. This practice is recognized by section 271, which prohibits a person from receiving compensation for appearing as attorney in a court before any magistrate in any city of the first or second class, unless admitted to practice as an attorney and counsellor in the courts of record of the state. That the legislature did not intend to prohibit such practice is apparent from the fact that at its last session it amended section 271, so that it now includes cities of the third, as well as those of the first and second class.
To give to the words “in any other manner” the legal effect suggested would prohibit a natural person anywhere in the state from drawing a legal paper of any description, or appearing in any court. This, the legislature has not yet indicated its intent to do.
One of the well-settled rules of statutory construction is that statutory offenses cannot be established by implication and that acts in and of themselves innocent and lawful cannot be held to be criminal, unless there is a clear and unequivocal expression of the legislative intent to make them such.
I am of the opinion that the defendant was not guilty of violating section 270 of the Penal Law; that the Appellate Division was right in reversing the conviction and discharging him; and its judgment should, therefore, be affirmed.
Model Rules of Professional Conduct, Rule 5.5
Unauthorized Practice of Law; Multijurisdictional Practiceof Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this jurisdiction].
N.C. Gen. Stat. § 84-2.1
“Practice law” defined.
(a) The phrase “practice law” as used in this Chapter is defined to be performing any legal service for any other person, firm or corporation, with or without compensation, specifically including the preparation or aiding in the preparation of deeds, mortgages, wills, trust instruments, inventories, accounts or reports of guardians, trustees, administrators or executors, or preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding; abstracting or passing upon titles, the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies, or assisting by advice, counsel, or otherwise in any legal work; and to advise or give opinion upon the legal rights of any person, firm or corporation: Provided, that the above reference to particular acts which are specifically included within the definition of the phrase “practice law” shall not be construed to limit the foregoing general definition of the term, but shall be construed to include the foregoing particular acts, as well as all other acts within the general definition.
(b) The phrase “practice law” does not encompass:
(1) The drafting or writing of memoranda of understanding or other mediation summaries by mediators at community mediation centers authorized by G.S.7A-38.5 or by mediators of employment-related matters for The University of North Carolina or a constituent institution, or for an agency, commission, or board of the State of North Carolina.
(2) The selection or completion of a preprinted form by a real estate broker licensed under Chapter 93A of the General Statutes, when the broker is acting as an agent in a real estate transaction and in accordance with rules adopted by the North Carolina Real Estate Commission, or the selection or completion of a preprinted residential lease agreement by any person or Web site provider. Nothing in this subdivision or in G.S.84-2.2 shall be construed to permit any person or Web site provider who is not licensed to practice law in accordance with this Chapter to prepare for any third person any contract or deed conveying any interest in real property, or to abstract or pass upon title to any real property, which is located in this State.
(3) The completion of or assisting a consumer in the completion of various agreements, contracts, forms, and other documents related to the sale or lease of a motor vehicle as defined in G.S.20-286(10), or of products or services ancillary or related to the sale or lease of a motor vehicle, by a motor vehicle dealer licensed under Article 12 of Chapter 20 of the General Statutes.
Capital Associated Industries, Inc. v. Stein, 922 F.3d 198 (4th Cir. 2019)
Diaz, Circuit Judge
Capital Associated Industries, Inc. (“CAI”) is a trade association representing North Carolina employers. As part of a plan to expand its membership, CAI wants to provide legal services to its members. But it cannot because state law forbids corporations from practicing law. Following unsuccessful lobbying efforts to change the law, CAI sued state prosecutors to enjoin the enforcement of state unauthorized practice of law (“UPL”) statutes against it. After the North Carolina State Bar intervened to defend the statutes, the defendants obtained summary judgment. On appeal, CAI contends that North Carolina’s UPL statutes violate its constitutional rights to free association, free speech, and commercial speech; lack a rational basis; are void for vagueness; and violate the state constitution. For the reasons that follow, we affirm.
I.
A.
Since 1931, the State of North Carolina has forbidden corporations
from practicing law. N.C. Gen Stat. § 84-5(a).[n.1 in opinion] North Carolina is not alone in doing
so. Almost all other states have similar laws on the books. One state
allows unincorporated nonprofit “associations” to practice law. And CAI
points to trade associations practicing law in a few other states. But
at least one of those states bans corporations from practicing
law.
To address the unauthorized practice of law, the State
Bar and state prosecutors may sue for an injunction, and prosecutors may
bring misdemeanor charges. The UPL statutes do, however, allow the
practice of law by lawyer-owned professional corporations, public
interest law firms, and in-house counsel representing their
employers.
CAI is a North Carolina nonprofit corporation that claims a tax exemption under 26 U.S.C. § 501(c)(6) as a trade association of employers. It has about 1,100 North Carolina employers as members and describes its mission as fostering successful employment relationships. CAI charges its members an annual fee adjusted for each member’s size. It competes with for-profit businesses in providing some services, such as recruiting, background checks, consulting, training, conferences, and affirmative action planning.
One of the most popular services it provides its members is a call center, where members can speak to CAI’s staff of human resources experts. The experts can advise on HR issues. But they can’t give legal advice, even if they are licensed attorneys. So, when legal issues arise, CAI’s HR experts have to steer the conversation elsewhere, end the conversation, or refer the member to outside counsel.
While it disclaims any interest in representing its members in court, CAI would like to help them draft legal documents (such as contracts or employee handbooks) and answer questions about employment and labor law. If it could practice law, CAI would offer most legal services without charge as part of its membership fees, but it would charge hourly fees for certain services.
CAI has spent years trying to change the UPL statutes as part of its “2X” development plan to double its membership and reach. In 2011, CAI’s lobbyists persuaded state lawmakers to introduce bills that would have allowed corporations to practice law. CAI tried and failed to get the State Bar to support the bills. The State Bar instead actively opposed the bills, and they were not enacted. CAI’s lobbying efforts met a similar fate in 2013. That same year, the State Bar adopted a proposed ethics opinion advising that CAI would violate the UPL statutes if it employed lawyers to give its members legal advice.
B.
After two failed bids to achieve its goals through legislation, CAI turned to the courts. It challenged the UPL statutes in federal district court, naming as defendants the attorney general of North Carolina and certain district attorneys. The complaint sought declaratory and injunctive relief that would prevent enforcement of North Carolina’s UPL laws against it. It pleaded five claims under 42 U.S.C. § 1983 (concerning due process, free association, free speech, vagueness, and commercial speech) and one claim under the state constitution.
The district court allowed the State Bar to intervene as a defendant. It then denied CAI’s motion for a preliminary injunction and the defendants’ motions to dismiss and for judgment on the pleadings. After discovery, the parties cross-moved for summary judgment.
Before the district court, State Bar representatives expressed concerns about nonlawyers controlling litigation and receiving attorney fees, confidentiality, excessive fees, and the State Bar’s inability to discipline corporations. Regarding CAI, they worried about conflicts of interest due to its large base of members and the fact that its directors and officers don’t have to be lawyers and thus wouldn’t have obligations under the State Bar’s Rules of Professional Conduct.
To assuage these concerns, CAI filed declarations from three trade organizations practicing law in other states, and it outlined a plan to comply with ethics rules. CAI’s lawyers would control legal services, make decisions about conflicts of interest, and have sole access to privileged communications. But CAI’s directors and president would set the attorneys’ salaries and the legal department’s budget. And CAI declined to offer assurances that it would require its directors and officers to be attorneys.
Some of CAI’s members testified that allowing CAI to practice law would mean that they could obtain more efficient and cost-effective legal representation. But almost all those members said they had received legal advice from private attorneys. Just one member said it had gone without counsel in low-risk situations, but even it found counsel for more serious matters. And according to CAI’s President and CEO, no member has left CAI because it doesn’t offer legal services.
Addressing the cross-motions for summary judgment, the district court first held that CAI had standing because it faced “a credible threat of prosecution” if it practiced law. The district court then turned to the merits and rejected all six of CAI’s claims, entering summary judgment for the defendants.
This appeal followed.
III.
We begin with CAI’s claim that the UPL statutes violate its freedom of association. CAI contends that it is an expressive association seeking to improve employment relationships in North Carolina and foster compliance with the law. By forbidding it from practicing law, CAI argues, the UPL statutes restrict its ability to carry out that expressive mission. We agree with the district court, however, that the UPL statutes do not unconstitutionally restrict CAI’s associational rights.
To support its argument, CAI relies on a line of cases beginning with NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In Button, the Supreme Court held that a Virginia law forbidding organizations from retaining attorneys to represent third parties infringed on the right of the NAACP and its members “to associate for the purpose of assisting persons who seek legal redress for infringements” of their civil and constitutional rights.
The Court emphasized that for the NAACP, litigation is “not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment.” To win civil rights, the Court said, litigation may be the “sole practicable avenue” and the “most effective form of political association.” Thus, what was at stake was “securing constitutionally guaranteed civil rights,” not commercial ends. And as the Court took time to emphasize, the law as applied against the NAACP did not implicate “professionally reprehensible conflicts of interest.”
The Supreme Court has applied Button in two contexts. The first, involves public interest organizations like the NAACP. See In re Primus, 436 U.S. 412 (1978). In Primus, the Court held that South Carolina couldn’t forbid the ACLU from advising people of their legal rights and informing them that the ACLU could represent them for free. The Court compared the ACLU’s role to that of the NAACP in Button and contrasted it with “a group that exists for the primary purpose of financial gain.” It cast doubt on whether an organization operating for financial gain would receive the same protection as organizations that promote the common political aims of their members.
The second context involves labor unions. See Bhd. of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1 (1964). The Trainmen Court held that Virginia couldn’t bar a union from recommending lawyers to its members for workers’ compensation suits. The Virginia law, the Court said, infringed on “the right of individuals and the public to be fairly represented in lawsuits authorized by Congress to effectuate a basic public interest” without adequate justification.
The Court has extended Trainmen twice. First, it held that Illinois couldn’t prevent a union from employing attorneys to represent its members in workers’ compensation claims. United Mine Workers v. Ill. State Bar Ass’n, 389 U.S. 217 (1967). While the Court considered that law unjustified, it emphasized that the state did possess an “interest in high standards of legal ethics.” Second, the Court held that Michigan couldn’t bar a union from recommending to its members certain attorneys who had agreed to a maximum fee. United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971). “At issue,” the Court said, “is the basic right to group legal action” and the right to “meaningful access to the courts,” which required enabling union members to “meet the costs of legal representation.”
The “common thread running through” these cases is that “collective activity undertaken to obtain meaningful access to the courts is a fundamental right.” Critically, however, the cases distinguish between the commercial practice of law and “associating for non-commercial purposes to advocate the enforcement of legal and constitutional rights.”
The Supreme Court emphasized this distinction in Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). In Ohralik, the Court rejected a challenge to an Ohio law forbidding in-person solicitation of clients. Solicitation of clients for commercial purposes, the Court held, did not implicate “political expression or an exercise of associational freedom” or “mutual assistance in asserting legal rights.”
As applied to CAI, North Carolina’s UPL laws are closer to the statute in Ohralik than the statutes in the Button cases. While this case is admittedly close, several considerations distinguish CAI’s proposed practice from the Button line of cases. First, what CAI seeks to accomplish would be for commercial ends and would address only private concerns. Second, it would not facilitate access to the courts. And third, it would pose ethical concerns not present in the Button cases.
When organizations like the NAACP and the ACLU solicit clients and retain lawyers to represent them, they express their commitment to expanding and guarding civil rights. CAI, in contrast, wants to help its members “resolve private differences” by drafting legal documents and advising employers on labor and employment issues. Its goal, as set forth in its 2X plan, is to increase revenues and recruit new members who will pay dues and additional legal fees. CAI would charge by the hour for some services. While other services would be included in its membership fees, CAI’s chairman said the trade association might increase its fees if it could practice law. CAI thus seeks to practice law for commercial ends, like a private attorney—not to associate for political or otherwise public goals. And while we accept that CAI engages in some expressive activity, CAI proposes to practice law for commercial ends, not to express a message.
Nor does CAI propose to engage in “collective activity undertaken to obtain meaningful access to the courts.” As described in the record, CAI’s members have consistently had access to legal services and the courts. And CAI has no intention of litigating in any forum. So, unlike the organizations in the Button cases, CAI would not facilitate access to justice or vindicate its members’ constitutional or statutory rights. CAI’s proposed practice might reduce some of its members’ legal bills. But nothing in the record shows that CAI’s inability to practice law means that its members can’t “meet the costs of legal representation” or obtain “meaningful access to the courts.”
The Supreme Court has, moreover, extended associational rights only when the proposed practice of law wouldn’t raise ethical concerns. CAI’s proposed practice, in contrast, does raise ethical concerns. Specifically, its members would pay legal fees for representation by attorneys supervised by officers and directors who are not attorneys. That structure (even if housed in a nonprofit entity) could compromise the independence and professional judgment of the lawyers involved, and the corporation’s interests could trump loyalty to clients.
In sum, several features of CAI’s proposed practice distinguish it from the organizations in the Button cases. As a result, like the solicitation statute in Ohralik, North Carolina’s UPL statutes “only marginally affect … First Amendment concerns.” Because they do not “substantially impair the associational rights” of CAI, we need not examine whether the state’s interests suffice to justify them. We hold that the UPL statutes do not violate CAI’s associational rights.
IV.
Next, CAI argues that the UPL statutes unlawfully burden its freedom of speech. The district court rejected this claim based on the so-called “professional speech doctrine.” When the district court ruled, this circuit and others applied lesser standards of scrutiny to professionals’ speech to clients. But after the briefing in this appeal, the Supreme Court disapproved of this doctrine. See Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S.Ct. 2361 (2018).
In NIFLA, the Court addressed a California law requiring certain clinics that primarily serve pregnant women to post notices about what services they didn’t offer and about free state services. Although the law applied in a professional context, the Court approached the case as it would any other involving compelled speech. It held that the law was content-based. And because it held that the law could not survive intermediate scrutiny, the Court declined to decide whether strict scrutiny should apply.
The Court did, however, recognize two situations in which states have broader authority to regulate the speech of professionals than that of nonprofessionals. First, there is “more deferential review” for requirements that professionals “disclose factual, noncontroversial information” in their commercial speech. Second, “states may regulate professional conduct, even though that conduct incidentally involves speech.” As examples of this latter category, the Court cited cases about malpractice, anticompetitive agreements, client solicitation, and informed consent.
On appeal, North Carolina describes the ban on corporate law practice as a regulation of professional conduct that incidentally burdens speech, which only needs to survive intermediate scrutiny. In contrast, CAI describes it as a content-based and identity-based regulation of speech that must survive strict scrutiny. As explained below, we agree with the state that the law passes—and only needs to pass—intermediate scrutiny.
A.
North Carolina’s ban on the practice of law by corporations fits within NIFLA’s exception for professional regulations that incidentally affect speech. The ban is part of a generally applicable licensing regime that restricts the practice of law to bar members and entities owned by bar members. In this case, any impact the UPL statutes have on speech is incidental to the overarching purpose of regulating who may practice law.
Many laws that regulate the conduct of a profession or business place incidental burdens on speech, yet the Supreme Court has treated them differently than restrictions on speech. Bans on discrimination, price regulations, and laws against anticompetitive activities all implicate speech—some may implicate speech even more directly than licensing requirements. But the Supreme Court has analyzed them all as regulations of conduct.
As CAI recognizes, the practice of law has communicative and non-communicative aspects. The UPL statutes don’t target the communicative aspects of practicing law, such as the advice lawyers may give to clients. Instead, they focus more broadly on the question of who may conduct themselves as a lawyer. Licensing laws inevitably have some effect on the speech of those who are not (or cannot be) licensed. But that effect is merely incidental to the primary objective of regulating the conduct of the profession.
B.
Having determined that the UPL statutes regulate conduct, we turn to the appropriate standard of review. CAI urges us to apply strict scrutiny, contending that the UPL statutes restrict speech based on the content and on the speaker. We think the correct reading of Supreme Court precedent, however, is that intermediate scrutiny should apply to regulations of conduct that incidentally impact speech.
C.
We turn then to consider whether North Carolina’s ban on the practice of law survives this standard of review. To survive intermediate scrutiny, the defendant must show “a substantial state interest” and a solution that is “sufficiently drawn” to protect that interest. North Carolina’s interest in regulating the legal profession to protect clients is at least substantial. In fact, the Supreme Court has repeatedly described that interest in even stronger terms.
Barring corporations from practicing law is sufficiently drawn to protect that interest. Professional integrity could suffer if the state allows lawyers to practice on behalf of organizations owned and run by nonlawyers and to collect legal fees from clients. Nonlawyers would likely supervise lawyers representing third-party clients at CAI, which could compromise professional judgment and generate conflicts between client interests and the corporation’s interests.
The state has addressed these problems by proscribing law practice by organizations that pose the most danger, while exempting organizations that pose little danger. Professional corporations, for example, must be owned exclusively by lawyers. N.C. Gen. Stat. § 55B-4(2). And public interest law firms “must have a governing structure that does not permit” anyone except an “attorney duly licensed… to control the manner or course of the legal services rendered.” Plus, the restrictions on the fees such firms may receive makes it impossible for them break even (much less turn a profit) on legal work.
Another state legislature might balance the interests differently. But intermediate scrutiny requires only a “reasonable fit between the challenged regulation” and the state’s interest—not the least restrictive means. Because North Carolina has established a reasonable fit between its UPL statutes and a substantial government interest, the UPL statutes survive intermediate scrutiny.
V.
CAI also argues that the UPL statutes deny it due process because they lack a rational basis. CAI doesn’t contend that its due process claim concerns fundamental rights, so the UPL statutes are only subject to rational basis review. To pass muster under rational basis review, legislation “need only be rationally related to a legitimate government interest.”
The state relies on the same justifications it provided in response to the First Amendment claims. As our precedent counsels, “there is a rational basis to restrict corporate … ownership of professional businesses” to protect consumers. Accordingly, we agree with the district court that the state’s justifications suffice. CAI’s remaining arguments—such as the availability of less restrictive means—are inapposite for rational basis review. We hold that the UPL statutes do not deny CAI due process.
VI.
CAI also contends that the UPL statutes are unconstitutionally vague because they fail to provide fair notice of what it means to practice law. A statute is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” But “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”
To determine if a statute is vague, we examine both the statute itself and any limiting constructions from state courts or agencies. State law defines the term “practice law” as “performing any legal service.” N.C. Gen. Stat. § 84-2.1(a). The statutory definition provides a lengthy but unexhaustive list of what does and doesn’t count as a legal service. The statute prohibiting the unauthorized practice of law elaborates on the definition further. And North Carolina courts have expounded on this definition at length.
CAI’s vagueness challenge fails. The statutes and state case law collectively provide an extensive definition of what it means to practice law. Between them, a person of ordinary intelligence would have fair notice of what the UPL statutes prohibit. Indeed, CAI itself understood what it means to practice law well enough to avoid giving its members legal advice.
CAI points out that State Bar officials couldn’t present a clear answer to every hypothetical question asked in their depositions. But fair notice doesn’t require certainty about every hypothetical situation. We hold, therefore, that the UPL statutes are not void for vagueness.
VII.
CAI next contends that the UPL statutes violate the state constitution’s Monopoly Clause, which provides that “perpetuities and monopolies … shall not be allowed.”
The Supreme Court of North Carolina has interpreted this clause to allow “reasonable regulations” of commerce with a substantial relationship to public health, safety, or welfare. That court has long been deferential toward professional regulations, regularly upholding professional licensing requirements.
The state high court has twice upheld the ban on corporate law practice. In Seawell, the Supreme Court of North Carolina affirmed an injunction against a corporation for the unauthorized practice of law, holding that “the statute in question offends neither the State nor Federal Constitution.” And in Gardner v. North Carolina State Bar, that court held that an insurance company could not employ an attorney to represent its insureds, finding that “there is no merit to the argument” that the ban on corporate practice “violates Article I of the state constitution and the Fourteenth Amendment.” Although it is unclear whether Seawell and Gardner addressed Monopoly Clause arguments, they illustrate the leeway North Carolina courts give the legislature to regulate the legal profession.
It is well established that the practice of law affects the public interest and that the unregulated practice of law can pose a danger. Based on the applicable state case law, this court must conclude that the UPL statutes do not violate the Monopoly Clause.
VIII.
Last, CAI argues that it has a free speech right to advertise the legal services it wants to offer. But this commercial speech claim is not an independent basis for granting relief, and the state may forbid CAI from advertising legal services barred by law.
IX.
The district court correctly granted the defendants’ motion for summary judgment. Its judgment is therefore
AFFIRMED.
Law Firms
Model Rules of Professional Conduct, Rule 5.1
Responsibilities of a Partner or Supervisory Lawyer
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Model Rules of Professional Conduct, Rule 5.2
Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Model Rules of Professional Conduct, Rule 5.3
Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Model Rules of Professional Conduct, Rule 5.4
Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Model Rules of Professional Conduct, Rule 5.6
Restrictions on Rights to Practice
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
Model Rules of Professional Conduct, Rule 5.7
Responsibilities Regarding Law-related Services
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
Note on Unauthorized Practice Statutes
A pending suit, brought by “two North Carolina Certified Paralegals and the North Carolina Justice for All Project, a nonprofit organization founded … to expand access to justice in North Carolina”, challenges the constitutionality of asserts that the North Carolina unauthorized practice statute “as applied to pure legal advice.” Black Polaski v. Lee, No. 7-24-cv-00004-BO-BM (E.D.N.C.). Review the complaint in Black Polaski and consider whether the claims may be distinguishable from those in Capital Associated Industries.