New York Is Pushed to Stop Asking Aspiring Lawyers About Long-Ago Crimes
Dylan James, a second-year law student in New York, aspires to fight systemic problems in the legal system. But even if he passes the bar exam after graduation, one part of the state’s admission application to become a lawyer could limit his plans: Question No. 26.
Mr. James, 30, used a gun to steal from an acquaintance during his senior year in high school and spent about three years in a Florida prison for armed robbery. But Question No. 26 asks prospective lawyers to divulge their complete criminal records, part of an effort to block people from the profession who might harm its reputation and the legal system itself.
The provision has attracted criticism from law groups, as well as some judges and professors, for mandating that juvenile cases and sealed or expunged convictions be revealed. Those requirements most likely violate New York laws, experts say.
Lawmakers have taken notice, and this year introduced a bill in Albany to rewrite the question. The administrative board of the state’s court system, which would oversee any changes to the application, has also been asked to take up the issue — and could do so as soon as this month.
“If you’re going to release a person from incarceration and allow them back into society, you’re doing that because you feel like this person is rehabilitated,” said Mr. James, a student at the City University of New York’s law school whose record has been clear since the teenage conviction. “Why are we going to continue to hold people to a mistake that they made?”
In every state, becoming a lawyer requires the disclosure of criminal records, financial troubles and lapses in academic discipline as part of a so-called “character and fitness” assessment. But New York’s dispute over Question No. 26 comes as the legal system undergoes intense scrutiny amid attacks from politicians and a widespread mistrust of fundamental institutions.
For some officials, the moment makes a legal system in which every participant has the public’s trust an even greater priority, and that means weighing a lawyer’s criminal history and personal background. Others argue that many people of color have long lacked faith in the system, and that the profession’s established rules must be rethought to regain their confidence.
“It should be an individualized process that really homes in on the totality of a person’s character, with no automatic disqualifiers,” said Jonathan Lippman, a former chief judge of the state’s highest court. “In some cases, maybe there are certain things we don’t have to know.”
Several other New York jobs — including bus drivers, registered nurses, social workers and teachers — also ask about felonies, misdemeanors and open criminal cases on their licensing applications. But the requirements for those looking to become lawyers are unique: Other professions do not ask for information about sealed convictions, juvenile cases or arrests.
The evaluation is aimed at proving that an applicant has “good moral character,” though researchers critics say it is ineffective. “It’s very unlikely that the information that is produced is going to predict who will later engage in misconduct,” said Leslie Levin, a law professor at the University of Connecticut who conducted one of the few major studies on the question.
And the effort to rewrite Question No. 26 has also been shaped by a practical concern: The New York State Bar Association says the question violates laws that ban agencies from asking about dismissed or sealed cases, as well as juvenile records, which are typically made confidential because youth have not attained their full decision-making capacity or moral sensibility.
Just a small group of states, including Mississippi, Kansas and Texas, block most people with felony convictions from becoming lawyers, or enforce wait periods between their prison release and application.
In New York, legal groups say it is rare for people to fail the evaluation, though specific numbers are not released. The bar application notes that “the mere fact” someone has a criminal record will not alone prevent their admission.
The application’s character assessment can be extensive, and has come under greater scrutiny in recent years.
New York in 2020 followed a handful of states in removing questions about mental health conditions after criticism that they could violate the Americans With Disabilities Act and discourage law students from seeking treatment. CUNY recently announced that it would no longer ask about prospective law students’ criminal records.
And in the Legislature, State Senator Brad Hoylman, a Manhattan Democrat, introduced a bill this spring that would limit the criminal record question to unsealed convictions of adult offenders. The measure remains in committee. The New York State Bar Association has requested similar changes from the court system.
The courts’ administrative board rejected appeals for changes to the question in 2018 and 2021. The group — chaired by acting Chief Judge Anthony Cannataro — meets this month, though it has not signaled whether it will take up the issue. Lucian Chalfen, a courts spokesman, said in a statement that the question “continues to be under review.”
Some have worried that the proposed changes go too far.
One concern is that no longer requiring the disclosure of arrests that did not reach convictions could let candidates slip by despite serious wrongdoing. Rape cases, for example, often have lower chances of reaching a conviction.
Others question whether any character and fitness evaluation is still needed. In New York, discipline in the profession can be slow or uneven, and some say that holding existing lawyers accountable should be the focus.
“If we’re interested in maintaining a safe profession, then we actually have to be examining what structures within the legal profession are perpetuating harm,” said Tolu Lawal, a co-lead organizer of Unlock the Bar, a New York group that aims to make the field more equitable.
The character and fitness evaluation has long been central to the profession, but its use has shifted over the years.
The earliest iterations were often used to block women from the profession. And a century ago, “nativist and ethnic prejudices” shaped the evaluation, according to a journal article by Deborah Rhode, a Stanford Law School professor and expert on legal ethics who died in 2021.
‘Yet another obstacle’
Today, the effort to change the question is part of a broader push to reckon with the makeup of the profession, a field that has long struggled to diversify: White people represent more than 80 percent of lawyers nationally. The ranks of Black lawyers have declined slightly over the past decade.
Research suggests that required criminal record disclosures may deter some people from education in the first place. At the State University of New York, which asks applicants about felony convictions, for every person denied admission because of a felony conviction, 15 others who have one on their record do not finish their applications, one recent study found. That rate was significantly higher than for the general applicant pool.
In New York, Black and Latino people are disproportionately likely to have prior arrests or convictions, and the State Bar Association has said it means Question No. 26 could have a chilling effect on representation.
“The fact that we are asking a question that is illegal should be enough,” said T. Andrew Brown, a former president of the New York State Bar Association. “But if you are a profession that already has a such a troubling underrepresentation of people of color, why would you put yet another obstacle in the way?”
Phil Miller, a 41-year-old who will graduate from CUNY School of Law next year, spent 17 years in prison after being convicted of armed robbery as a teenager. He and a group of friends had stolen from stores, and he had carried a gun.
But he felt he received ineffective representation from his initial lawyer, who urged him to plead guilty; a co-defendant went to trial and was acquitted. While incarcerated, Mr. Miller witnessed harsh violence from prison guards.
At one point, Mr. Miller said, a friend had repeatedly sought medical attention for pain and was told he was fine. He said an outside doctor had later diagnosed the man, who died months afterward, with stage four cancer.
Mr. Miller said he believed those experiences should be viewed as a strength.
“There are things that classes will never teach you about the law,” he said. “I’ve been through the system, and I’ve seen firsthand all the things that are wrong with it. That perspective matters.”