The Troubling Rise of the Legal Profession's Good Moral Character

Keith A. Swisher (Osborn Maledon, Phoenix) has posted The Troubling Rise of the Legal Profession's Good Moral Character, 82 St. John's L. Rev. ___ (2008), on SSRN.  Here is the abstract:

This Article exposes several rather startling characteristics of the "good moral character" requirement for bar applicants. The requirement arose in part from the bar's desire to exclude competition, particularly competition from certain nationalities and racial groups. It later was expanded to exclude the morally unorthodox (e.g., communists, cohabiters, or felons). Presently, and importantly, despite rhetoric about flexibility and forgiveness, the requirement is applied rigidly and even disingenuously to many applicants with criminal records. I find a marked increase in the exclusion of applicants with criminal records, despite also finding that their criminal conduct occurred (on average) nearly a decade before their bar applications. The Article then illustrates that the bar's application of its "flexible" standard for admittance is both perverse and unrealistic; it is not only unfair to applicants, but it is unprecedented in psychology and moral philosophy. The Article concludes that these exclusionary practices result almost solely from the bar's concerns with its reputation and (misconceived) self-image. Finding that justification shallow, the Article offers some compromise positions for bar committees, courts, and law schools to employ in their screening processes.