Bar Admission Question Is Illegal and Harms Diversity

Becoming an attorney is not easy. From getting into law school to footing the six-figure bill for three years of classes, to passing the bar exam, the sheer number of hurdles a would-be lawyer must clear is daunting for even the highest-achieving student.

But even after successfully navigating all these obstacles, yet another looms large and dissuades untold numbers of individuals—especially people of color—from ever embarking on the journey to induction. This impediment must be immediately removed if we are truly serious about improving diversity, equity, and fairness in our legal system.

The problem is Question 26 on the New York Bar admission application, which reads: “Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?”

To be clear, as a condition to entry into our ranks, we are not only asking individuals to disclose incidents that ended in conviction, but any incident in the criminal justice system, regardless of justification or outcome.

By perpetuating this practice in New York, we are, in fact breaking not one law, but two.

New York Executive Law, a.k.a., the Human Rights Law, Section 296(16) expressly prohibits licensing agencies, which would include the court acting as the licensor of attorneys, from asking about (or relying upon) specific categories of criminal justice involvement—including arrests not still pending that have not ended in conviction and juvenile or youthful offender proceedings.

The Family Court Act Section 381.1(2), which is narrower, prohibits any public authority from denying a license based on an adjudication under the Family Court Act (i.e., juvenile and youthful offender proceedings).

To perpetuate a process that is blatantly illegal is antithetical to everything we stand for as lawyers and judges, which is to uphold and protect the rule of law. Only an act of the state Legislature can grant exceptions to existing laws. No such exception exists for the licensing of lawyers.

In addition, Question 26 disproportionately impacts would-be attorneys of color, as ample data shows that members of Black, Latino, and other non-White communities are more likely to interact with the criminal justice system and therefore more likely to have to answer “yes.” A 2018 analysis found Blacks make up only 15% of the New York population, but account for 38% of total arrests.

Growing Recognition of Outdated Character and Fitness Tests

In considering reform of Question 26, New York is at the forefront of a growing recognition among bar associations nationwide that our current method of assessing the character and fitness of future attorneys is outdated and does not serve the goal of increasing diversity among our ranks.

According to a review by the Judge David J. Bazelon Center for Mental Health Law, as of 2019, only a handful of states—California, Maryland, and Connecticut—had acted to change questions related to disclosure of convictions or engagement with law enforcement.

Supporters of Question 26 say it is necessary to ensure attorneys meet the profession’s character requirements and to protect clients from unethical lawyers. But a 2019 report by the Stanford Criminal Justice Center (SCJC) questioned the efficacy of using an individual’s criminal history to gauge whether they have the sufficient moral character and fitness to be a lawyer—especially given the racial disparities in arrest, conviction, and sentencing rates.

Of those who do answer truthfully regarding their past criminal justice involvement, very few are actually denied admission to the bar, though they do undergo additional—and sometimes quite costly—scrutiny from Character & Fitness Committees, begging the question as to its utility.

A 2020 report by former Department of Homeland Secretary Jeh Johnson, commissioned by Chief Judge of the State of New York Janet DiFiore in the wake of national protests against institutional racism in the criminal justice system, found pervasive racism throughout the New York courts. This woeful situation is generated in part by the dearth of individuals of color at all levels of the profession, especially among attorneys and judges.

Law school deans of admissions, who are required by their accrediting agency, the American Bar Association, to not admit students who do not appear capable of being admitted to the bar, mirror Question 26 on their own applications. Law school deans say there is ample anecdotal evidence that this question is deterring minority applicants, many of whom already face significant financial, academic, and bias-driven obstacles to entry.

in 2021, the 15 law schools across New York received approximately nearly 62,000 applications, offered 15,968 students seats in their first-year classes, and enrolled 4,515. Just 335 of them were Black. That’s fewer than 21 students per school. Worse yet, only 10 were American Indian or Native Alaskan.

According to the ABA, 88 percent of all U.S. lawyers are White. Any factor in the education pipeline—from elementary school on—that acts as a headwind to the legal industry’s diversity crisis must be removed if we are to make progress on this intractable problem.

As a Black man living in the modern world where countless studies have shown that individuals of color are more likely to interact with law enforcement, even in something as simple as a traffic stop, I would have to answer “yes” to this question if it were posed to me today. How many others who look like me fall into this category and have given up the dream of a career in law? How many other would-be future presidents of the New York State Bar Association will you never know?

I am proud that our governing body, the House of Delegates, recently voted in favor of asking Chief Judge DiFiore and others with the authority to end required disclosure of sealed criminal records, juvenile delinquency, and youthful offender proceedings, dismissed cases, and arrests. I hope she heeds our call.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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T. Andrew Brown is the 124th president of the New York State Bar Association, the nation’s largest voluntary state bar association. He is also the founder and managing partner of Brown Hutchinson in Rochester where he has practiced statewide in the areas of civil litigation and employment law.