State bar calls for change to ‘unlawful’ bar admission question
/
The New York State Bar Association has issued a report criticizing the legality of a bar admission question asking about criminal pasts and sealed offenses. Eagle file photo by Rachel Vick
By Rachel Vick
The New York State Bar Association is recommending a revision to the bar admission application, criticizing the legality of a question about juvenile delinquency and criminal records.
According to a report compiled by the NYSBA House of Delegates, question 26 of the application fails to comply with the New York State Human Rights Law and the Family Court Act, and has a damaging effect on the diversity of incoming lawyers.
“The question has had a chilling effect on potential lawyers - especially people of color – which flies in the face of much-needed efforts to improve diversity at all levels of the legal system,” said T. Andrew Brown, the NYSBA’s president. “We have heard from deans and directors of law school admissions that people of color who want to become lawyers are reluctant to invest the considerable time and money to attend law school because they worry that they could be rejected for admission to the bar due to a police interaction.”
The House of Delegates suggested rewording the question to clarify that sealed criminal records, juvenile delinquency and youthful offender proceedings, dismissed cases and arrests that are no longer pending and did not result in a conviction do not have to be disclosed.
Question 26 asks applicants “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?”
Among the report's findings were disparities in the profession. According to the report, the question under review contributes to the exclusion of Black people, Indigenous people and people of color in the legal field and to discourages entrants to law school.
Recent American Bar Association surveys found only five percent of lawyers identify as Black, while making up 15 percent of New York's overall population and 38 percent of arrests, according to the latest data compiled from the Judicial Friends Report on Systemic Racism in New York Courts.
The ultimate decision to change the question rests in the power of Chief Judge Janet DiFiore.
Office of Court Administration spokesperson Lucien Chalfen said they “are still in the process of reviewing the input, comments and proposed language from the Working Group and others regarding question 26 on the bar exam admission application.”
The shift in attitude toward change was commended by advocates for reform to the admittance process including Unlock the Bar and Colby Williams, 3L at CUNY School of Law and former co-chair of the Formerly Incarcerated Law Students Advocacy Association.
The report also stated that the answer to the question — whether applicants had been involved in the justice system — had little relevance on their abilities to practice law. The same point has been made by groups like FILSAA, fighting for an admission process that reflects the academic, professional and potentially progressed personal merit of hopeful lawyers.
The efforts, according to Williams, are just one small step towards an equitable legal system because even revisions the system “will still allow other questions on character and fitness applications to ask about unsealed criminal convictions and other details which amounts to a highly discriminatory screening practice.”
"It is exciting to see the NYSBA take this important early step in the right direction. Many people worked many hours to bring awareness to this issue. Yet there are many hours to go,” Williams told the Eagle. “Good people whose lives show a pattern of overcoming obstacles and fighting injustices continue to be deterred from applying to the legal profession or rejected when they do. Changing question 26 is necessary, but it is not enough. It is one lock on a door that needs to be opened."
