Judge Jonathan Lippman, former Chief Judge of the New York Court of Appeals, and David B. Wilkins, faculty director of the Center on the Legal Profession at Harvard Law School, discuss honesty, justice, and responsibility in the legal profession.
David B. Wilkins: You spent many years as the chief judge of New York’s highest court, which meant you had ultimate oversight over the New York bar and the state’s system of lawyer regulation. From that position, how do you think about and define character and fitness? What does character and fitness mean for you in a very practical sense—after all, you were the final arbiter in New York—but also more generally for the profession?
Jonathan Lippman: From a macro perspective, my job was to ensure that we were aspiring to the highest principles of our profession and to ensure that the public had confidence in our profession. In that sense, to me, it was important that our profession was not parochial in its viewpoints because what lawyers do is help people. For me, character and fitness center on that core attribute. The law and the legal profession, at its core, is about helping people get justice. So, on a broad policy level, that’s the way I see the whole discussion of character and fitness: it’s a matter of justice.
Lawyers have a special responsibility to be truthful and transparent and all the things that we associate with a person of character.
Wilkins: Turning more to specifics, what factors and attributes do you view as most important in assessing the character and fitness of candidates hoping to pass the bar? In other words, what factors and attributes do you want to see? What factors and attributes do you not want to see?
Lippman: I would start off in the broadest regard by making sure that you have someone who understands what it means to be a lawyer. And by that I mean someone who wants to help and serve people—not someone who views being a lawyer as simply a way to gain wealth. Being a lawyer is being a public servant who sees beyond his or her own immediate material needs and recognizes that he or she is part of the community. Lawyers shouldn’t be insular and should recognize that being a good citizen and being a good lawyer go hand in hand. It doesn’t mean that we’re going to prevent you from becoming a member of the bar because you are narrow in your interests, but a lawyer should try to be someone who is a part of the world. So much of the success of our country has been due to the work of engaged lawyers. Lawyers have a special responsibility to be truthful and transparent and all the things that we associate with a person of character. But beyond that, we’re looking for people who understand the role not only of the individual but also of the community and the profession.
On the other side of the ledger, if someone is self-absorbed, that comes along with not being in tune with the values that we hold dear as a profession and as a society. That is why we have a character and fitness review. It highlights to the lawyer that we as a profession value transparency and truthfulness. We don’t cut corners as lawyers because we have a special responsibility if we’re going to uphold and adhere to the rule of law. You really have to understand that this is something special in the requirements for being a lawyer—and for being an officer of the court. This is something noble. This is something that can’t be met by shortcuts and rationalizations for unacceptable conduct.
Wilkins: There’s a debate out there about whether certain actions are simply disqualifying for being a lawyer—that in some cases, it’s just black and white. I wonder how you thought about that?
Lippman: My belief is that we ought to be looking beyond the four corners of any particular offense, transgression, or action that raises our eyebrows and look at the whole human being. I believe—and this was true when I was on the bench and it remains true today—in forgiveness. If people make mistakes, particularly earlier in life, everyone ought to have a chance at rehabilitation, redemption, and living a useful life. For me, the critical criteria is truthfulness. If you have had past mistakes, but are transparent and truthful, that goes a long way for me in showing that you have risen above whatever the mistake might have been. So I wouldn’t make these hard-and-fast rules, except in the most extreme cases. I think we have to look at the whole human being, who they are, and whether they contribute to our profession and our society. I’m not one for litmus tests on anything, including admission to our great profession.
Wilkins: Have you noticed changes in how we think about character and fitness or in the way the concepts have been applied over time? Do you predict we may see changes in the future?
Lippman: We’ve seen a lot of change in the admission process. We used to be much more rigid in our interpretation of character and fitness. Over time, however, we moved toward a more flexible approach, particularly with new and aspiring lawyers. There has also been an evolution in terms of lawyers who have been practicing, have committed a transgression, and want to come back to practice. As you may know, one of my predecessors as chief judge was found guilty of a serious crime and went on to serve in federal prison only to seek readmission to the bar, which was eventually granted. My view is that you can’t write the script in advance. You really have to take it case by case rather than drawing these really hard-and-fast rules. For me, being vigilant about the high standards that someone must possess to be a member of our great profession is totally compatible with looking at the entire human being, warts and all.
We ought to be looking beyond the four corners of any particular offense, transgression, or action that raises our eyebrows and look at the whole human being.
Wilkins: When we think about the whole person, how, if at all, should we think about issues of mental illness and mental capacity? Should that be a part of the character and fitness review? As you know, there are again a number of different views out there on that issue, and nobody has thought more carefully about it than you.
Lippman: If you’re talking about a holistic view of the human being, we should be looking at every means possible to help the members of our profession get help for those kinds of issues, particularly mental illness, that prevent us from providing the level of representation and assistance that the job requires. If we can’t help ourselves, we’re not much good to others. In New York, we as the judiciary tried to provide a place for lawyers to go. Often they have nobody to talk to about their problem. As a profession, we can’t stand aside and just be judgmental about these problems without looking for a way to solve them.
One of the hallmarks here in New York is what we call problem-solving courts, such as mental health courts and drug courts, that recognize a lot of what we call criminal conduct and, in the bar, what we call attorney misconduct, which really has to do with an underlying medical problem. I don’t think it’s any different in our oversight of the profession. What we try to do is be outcome-oriented and help people recognize that, for instance, a criminal act may have more to do with an underlying medical problem that needs to be addressed than it has to do with any criminal intent. The same may be true for the lawyer. So let’s get our colleagues, our friends, our fellow members of this noble profession the help they need to do the important work they are trained to do. The answer can’t stop at being critical and judgmental. We need to be oriented to outcomes for those human beings and for our society and, of course, our profession.
The Honorable Jonathan Lippman is former Chief Judge of New York and Chief Judge of the New York Court of Appeals. He is currently Of Counsel in the New York office of Latham & Watkins and a member of the firm’s Litigation and Trial Department.
David B. Wilkins is the Lester Kissel Professor of Law, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession at Harvard Law School.