New York County Lawyers Applauds Revision of Question 26 on the New York State Bar Exam

March 20, 2023

The New York County Lawyers Association applauds the Presiding Justices of the Appellate Division of the New York Supreme Court for revising question 26 in the questionnaire that applicants for admission to the New York State Bar must complete. The Appellate Division’s revised question 26 will no longer require prospective lawyers to disclose all criminal justice system involvement, regardless of the outcome or seriousness of the offense, except for parking tickets and certain traffic violations. Thus, applicants will not be required to disclose (1) matters that were adjudicated in a juvenile delinquency proceeding in Family Court or through other equivalent noncriminal proceedings, or (2) citations, tickets, arrests, and other encounters with law enforcement that did not result in formal criminal charges or an indictment, trial, conviction, or guilty plea.

However, applicants for admission to practice law will still be required to disclose all formal criminal charges and convictions, including Youthful Offender treatment, and the Committee on Character and Fitness will be able to consider those matters in making a holistic assessment of each candidate’s fitness to become a lawyer. This is important for at least two reasons. First, every lawyer holds a position of public trust as an officer of the courts, charged with, among many other things, honestly presenting evidence and arguments to judges, with properly holding and disposing of client funds, and preserving client confidences. These tasks require our profession to uphold the highest moral standards. Second, we as a profession must be perceived as upholding these standards. If the average person heard that the Committee on Character and Fitness was not asking about a Bar applicant’s criminal record, they would be appalled. The Administrative Board decision ensures both the reality and the perception that we are protecting the public. .

The Appellate Divisions’ revised question 26 is, in addition, a reasonable compromise. On one hand, the revised question 26 protects bar applicants, especially minorities, from having to disclose minor, and potentially discriminatory, interactions with the police, such as potentially unconstitutional “stop and frisk” arrests, that do not bear on their good character or fitness to practice law. On the other hand, the revised question 26 preserves the Character and Fitness Committee’s ability to consider more substantial interactions a bar applicant has had with law enforcement that might raise questions about the applicant’s good character or fitness to practice law. For example, a juvenile conviction for fraud might bear on the applicant’s honesty, and a domestic violence charge that was dropped because the victim was unwilling to testify might bear on the applicant’s character. Importantly, the Appellate Divisions have recognized that the mere fact that an applicant’s past includes any interactions with law enforcement is not, by itself, a basis for denying admission to the bar.

We recognize that there has been some research which suggests that law enforcement involvement – even criminal convictions – has little or no predictive value as to whether lawyers, once admitted, will violate the Rules of Professional Conduct. We note only that our criminal justice system, in Sandoval hearings, has long understood that the commission of crimes of dishonesty has predictive value as to whether someone will later testify truthfully; indeed, in civil cases we let evidence of a witness’s prior convictions in as a matter of course. The Bar admissions process should allow no less.

The New York County Lawyers Association believes that the revised question 26 strikes an appropriate balance between concerns about the prior question 26’s potentially discriminatory impact on persons of color and the vital need to ensure that every New York

lawyer has the character and fitness necessary to serve as an officer of the courts and a counselor and advocate for clients.