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For some, bar success brings ‘fitness’ hearing

The exhilaration of a dozen or so applicants who learn this month that they have passed the Virginia bar exam will be short-lived.

They soon will receive notice that they face a hearing before the Committee on Character and Fitness of the Virginia Board of Bar Examiners.

At that hearing, they will have to demonstrate by clear and convincing evidence that they are persons “of honest demeanor and good moral character.”

Of course, those lawyer wannabes already have a good indication that their demeanor and character might be in question.

As part of the bar exam process, they filled out a comprehensive questionnaire that asked for responses about their criminal and traffic record, their finances, their employment, any military record and any substance abuse or mental health issues.

Applicants with a problem in one of those areas might have felt that they were in a Catch-22. An honest answer might jeopardize what they have worked years and spent tens of thousands of dollars to obtain. On the other hand, if they don’t disclose the problem, they risk being caught in a lie.

Stephen A. Isaacs, the Richmond lawyer who is director of the character and fitness committee, has a staff of three to follow up on any problems or discrepancies that show up in the questionnaires.

The committee has five members: Chairman Henry M. Sackett III of Lynchburg, Curtis M. Hairston Jr. of Richmond, Julia B. Judkins of Fairfax, Linda S. Laibstain of Norfolk and Mary Lynn Tate of Abingdon.

It was created in 1994 after the bar examiners concluded that the practice of having a law school dean or circuit judge certify the good character graduates was outdated. With the explosion in the number of law school graduates, deans were not as familiar with graduates as they once were, nor were judges likely to know every lawyer in their area.

Moreover, other states were requiring a more substantial background check.

Isaacs acknowledged that the process relies largely on self-reporting by the applicants, but he said he believes checks of personal references, court records and employment history turn up most serious problems.

The committee hasn’t gone as far as some states, such as Florida, which check social networking sites, such as Facebook. “Maybe we should,” he said, but he meets with counterparts from other states at national conventions and believes that Virginia’s system works well. “They don’t do anything better than we do,” he said.

Isaacs said few blemishes are disqualifying in and of themselves. “One DUI does not an unqualified applicant make,” he said. “I’m not looking for fraternity pranksters to keep out of the practice of law.”

Some matters are serious enough, however, to warrant a hearing as a matter of course. Those would include a felony conviction, two DUIs in the last three years, a pattern of driving infractions that shows a disregard for the law, defaults on student loans or child support arrearages, and a negative prognosis from a mental health therapist.

Applicants with such a history would be expected to demonstrate that their rehabilitation indicates that they’re ready to take “a useful and constructive place in society,” Isaacs said.

For those who might not quite meet that standard, Isaacs said, the committee works to put those with a checkered past in a position where they can be licensed.

That may take the form of encouraging applicants to put their financial house in order or to get counseling for an alcohol, drug or emotional problem. In some instances, the committee defers certifying the fitness of an applicant and gives him or her the opportunity to demonstrate further rehabilitation.

Those that are found to be unfit for whatever reason – and Isaacs says “every case is absolutely different” – may reapply after two years.

Isaacs said only 1 to 2 percent of the 2,200 or so who take the bar exam annually are asked to appear before the committee, and the majority of those who do appear are found to be fit to practice law.

“Without question, we have saved lives,” Isaacs said. “We’ve put people on the right track. Some of the worst cases, they’ve become the best lawyers. That’s very rewarding to see that. … At the same time, we’ve slammed the door in some people’s faces.”

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