I spend a fair amount of time defending people who have made mistakes. The touchstone of my philosophy of practice is fairness and forgiveness.  I am not blind to the fact that mistakes have consequences, or that there must be accountability for misconduct.  However, rehabilitation is in everyone's interest if it is possible.  Employers invest a great deal in training employees, and employees invest a great deal in creating successful careers that should serve their employers and the greater good.  Thoseinvestments should not be thrown away lightly.

Fairness

At the heart of my practice is the fairness mandated by the Civil Rights Act of 1964, the Americans with Disabilities Act, and and the Age Discrimination in Employment Act.  In many cases, my clients are flawed human beings, and I do not pretend to be otherwise.  That does not obviate the fact that their race, color, national origin, sex, religion, age, disability, or prior efforts to remedy discrimination must legally and morally play no part in decisions regarding their employment, mistakes or not. Too often the law is disregarded in these cases. However, there is recourse at state and local civil rights offices, the Equal Employment Opportunity Commission, and the state and federal courts.

Moreover, penalties should fit the offense. Government employees and union members are typically lucky enough to be afforded some due process before they are disciplined.  In the federal government there are twelve factors that must be considered before an employee is disciplined, known as the Douglas facts after the case of Douglas v. Veterans Administration decided by the Merit Systems Protection Board. I look forward to the day when we abolish employment at will in the private sector and every employee has a fair opportunity to be heard and not fired for no reason.

In the case of applicants for admission to the Bar, every potential lawyer must not only pass the Bar Exam but also must pass the review of a character and fitness committee to ensure that the applicant meets the ethical standards expected of a lawyer, which each state codifies in its Rules of Professional Conduct, usually patterned on the American Bar Association's Model Rules. Criteria for character and fitness vary from jurisdiction to jurisdiction,  One example of the kind of analysis courts engage in is laid out in the decision of the District of Columbia Court of Appeals in In re: Christopher LIndsey Kleppin, which the court considered eleven factors before ruling that Mr. Kleppin could be admitted to the bar despite his prior convictions for possession and sale of marijuana.

Forgiveness

Consequently, I found the recent story in the American Bar Association Journal involving a similar story of a former nurse, Tarra Simmons, who had become addicted to painkillers and convicted of drug possession and theft before she attended the George Washington University Law School, my alma mater.  Despite extensive evidence of her rehabilitation, high academic achievement, and the award of a prestigious Skadden Fellowship, Ms. Simmons was denied admission to the Bar in the State of Washington. Her stated ambition is to serve prisoners and the poor, which is what her fellowship funds. Of course, without knowing all the facts and circumstances before the Committee on Professional Responsibility, it is hard to second guess their decision, but the report of this case seems to cast some doubt on it.

Ethical Conduct

Attorneys do not enjoy a particularly good reputation in this country, although the Bar aspires to the highest standard of ethical conduct and attempts to enforce. That, after all, is why there is a Code of Professional Responsibility and a licensing process that requires an examination of character and fitness.  The critical question is whether people who have exhibited character flaws in the past, and in some cases have broken the law, can turn their lives around, become good citizens, and make a positive contribution to the lives of others. To those for whom the answer is a reflexive "no," I ask only that they considered how they would be judged, and whether they truly believe that is is impossible to go and sin no more.

 

 

 

© Charles Williamson Day, Jr., 2016. All rights reserved.

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