The Volokh Conspiracy
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Character and Fitness in the Trap House
One of the most disconcerting elements of the Yale fiasco was the threat to report the student to the bar.
Eugene and David have blogged about a recent fiasco at Yale Law School. Here, I will focus on one of the most disconcerting elements of the incident. An administrator told the student:
"You're a law student, and there's a bar you have to take. So we think it's really important to give you a 360 view."
The implication here was not too subtle: apologize, or we will report you to the Character & Fitness committee of the bar.
Later, the administrator insisted that the Yale would not make a referral to the bar:
"We would never get on our letterhead and write anything to the bar about you. You may have been confused."
Uh-huh. Confused. After the Washington Free Beacon story, Yale issued a statement:
"At no time was any disciplinary investigation launched or disciplinary action taken in this matter. While any person may report concerns about a lawyers' character and fitness to the bar, the law school has a longstanding policy of reporting only formal disciplinary action to the Bar Association."
I admire the student here who refused to cave to the school's demands, even in the face of a character and fitness referral. But not all students may be able to exhibit such fortitude. Indeed, in most cases, there is no need to follow through on the threat. Merely hinting at the possibility of a referral will be enough to force a student to self-flagellate.
What can be done here?
First, the administrator's position seems akin to extortion: the school would get its way through the threat of making a complaint, especially where that threat would never actually be followed through. Indeed, it may even be unethical for administrators who are members of the bar to use the threat of a bar referral to induce a law student to abjure his constitutional rights. These administrators may themselves be subject to disciplinary proceedings!
Second, it may be necessary to seek advisory opinions from state supreme courts and disciplinary committees about whether character & fitness referrals are appropriate for protected speech. Speech protected by the First Amendment should not be the basis for excluding someone from the bar. But if some bureaucrat decides that discipline is warranted, then the bar should be sued.
Third, Yale and other schools should formally instruct their administrators not to dangle the threat of a bar referral as a way to force students to self-cancel. A character and fitness referral should only be entertained after the full disciplinary process is completed. This arrow should be permanently removed from the associate dean quiver.
Finally, this incident illustrates why ABA Model Rule 8.4(g) should be fought even more vigorously. Generally, law students are subject to the same sorts of rules attorneys are subject to. The bar should not be weaponized to punish the freedom of speech.
If students at other schools have been subjected to a character-and-fitness extortion, please email me.
