Character and Fitness

Volume 4 • Issue 3 • March 2018
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Character without Borders

Lessons from outside the U.S. legal profession

As we explored in the lead story of this issue of The Practice, “A Higher Bar,” there is no single conception of character and fitness in the U.S. legal profession. Specific application processes and assessments, for example, differ from one state to the next. Yet, while there may be 50 different interpretations of the character and fitness requirement for lawyers in the United States, on a formal level all states maintain it as an entry requirement for becoming a practicing lawyer. As Marilyn Wellington, executive director of the Massachusetts Board of Bar Examiners, puts it, “Being a member of the legal profession in the United States is a privilege, not a right.”

In this article, we add more nuance to the character and fitness debate by taking a comparative approach, examining how the concept features in other professional settings. First, we look outside the legal profession entirely, examining how an analogous profession—medicine—views the issue of good moral character. Second, we head north to consider the Canadian legal profession—a profession that in some ways resembles the United States but also presents interesting deviations from the U.S. character and fitness requirement. Through these two examples, we see what is—and is not—unique about both the U.S. legal profession’s conception of character and fitness.

Character and fitness in medicine

The assessment of character and fitness as a means of protecting the public is not unique to the legal profession. As the following section illustrates, a similar requirement is present in the U.S. medical profession and, more specifically, in the licensing of doctors. On the one hand, this may not altogether be surprising. After all, law and medicine share a high-stakes relationship with the consumers of their services, whether those consumers are clients seeking justice or patients in life-or-death situations. On the other hand, because law often tends to view itself as sui generis—unique to the degree of incomparability—cross-professional comparisons are often not made. To help remedy this lack of scholarship, the following section reviews the character and fitness process for doctors, highlighting areas of similarity and difference, and therein gleaning lessons for the legal profession going forward.

“Practicing medicine is a privilege, not a right,” says Dr. Candace Sloane, chair of Massachusetts Board of Registration in Medicine.

Just like in the U.S. legal profession, the U.S. medical profession is regulated on a state-by-state basis rather than on a federal level. Thus, to explore character and fitness in the medical profession in finer detail, we consider the example of Massachusetts. In Massachusetts the requirement that doctors be of “good moral character” is enshrined in state law as well as in the regulations of the Massachusetts Board of Registration in Medicine (BORIM), the state government body in charge of regulating doctors. Massachusetts General Law 112, Section 2 states that licensure as a qualified physician shall only be granted to “[e]ach applicant who shall furnish the board with satisfactory proof that he is … of good moral character …” Regulation 243.2 of the Code of Massachusetts Regulations, drafted by BORIM, operationalizes this requirement and lays out the criteria for the licensing process. It states:

Pursuant to M.G.L. c. 112, § 2, all applicants for licensure and all licensees shall have good moral character. … An applicant for initial licensure shall submit to the Board a written statement attesting to his or her good moral character. The statement should be executed by someone other than a relative who knows the applicant well and for a substantial period of time. The Board especially seeks statements from physicians licensed to practice in the Commonwealth. … A renewing licensee shall certify that he or she is of good moral character biennially, when signing the renewal application.

Put simply, both state law and regulation make good moral character a firm prerequisite for becoming a doctor in Massachusetts, just as they do in the legal profession. The same is true in virtually all states; however, the exact details around character and fitness for doctors vary by jurisdiction.

To help understand these issues, The Practice interviewed Dr. Candace Sloane, chair of BORIM, about how she approaches the good moral character issue. Sloane notes that being a good doctor and having strong moral character are inextricably linked, and, echoing Marilyn Wellington’s remarks regarding the practice of law, stresses that “practicing medicine is a privilege, not a right.” To illustrate how good moral character is essential to the proper practice of medicine, she offers a hypothetical scenario of a patient coming in to see her for an annual physical. In the course of the examination, the doctor feels a lump on her right breast and decides to perform a biopsy. She continues:

I do the biopsy and I get tissue. And it’s just normal breast tissue. But I still feel the lump, and the mammogram is still showing an abnormality—and I realize: the biopsy may have missed the lump. It is critical that you go back and you say to that patient, “It’s looking like normal tissue, but you and I can both feel this lump. We see it on the mammogram. It may have been missed on the initial biopsy.” You can’t just come back and say everything’s fine.

As Sloane’s remarks suggest, there is a distinction between one’s “moral character” and one’s “ability”—not unlike the legal profession’s distinction between “character and fitness” and “competency.” As Sloane puts it, “There’s a level of competency that every physician must have. That’s critical. If you don’t have that competency, people can die. But in addition to that, you have to have a good moral character.” She explains:

Competency is critical, but we also understand that mistakes happen. People are human. Doctors are human. And they’re not going to always get it right. They’re not going to always make the right decision. But we have to know that they have the integrity and the moral character to tell the truth—and to always tell the truth. I would always say to my residents, to be an outstanding physician, you don’t have to be the smartest kid in the class. You have to be smart, and you have to work like a dog. But beyond that, you have to understand the responsibility that you have every time you take care of a life.

According to the Federation of State Medical Boards, 45 state medical boards conduct criminal background checks for initial licensure and 39 require fingerprints.

The need for good character in medicine is clear. But how is it assessed in practice? “That is really the crux of the issue,” says Sloane. “We can monitor for clinical performance. We can review your charts to see if you’re doing everything you should be doing. But how do you assess if a physician has integrity? That is a central question that we at the Board have to grapple with.” Similar to the Massachusetts Board of Bar Examiners (Massachusetts BBE) (see “A Higher Bar”), BORIM is tasked with overseeing licensing requirements, including the good moral character mandate. One need only read BORIM’s mission statement to understand the bearing the latter has on the former:

The Board of Registration in Medicine’s mission is to ensure that only qualified and competent physicians of good moral character are licensed to practice in the Commonwealth of Massachusetts and that those physicians and health care institutions in which they practice provide to their patients a high standard of care and support an environment that maximizes the high quality of health care in Massachusetts.

On a technical level, BORIM is made up of seven board members—five doctors and two public members. Interestingly, the public members need not be doctors, and on the current board, one member is even a lawyer. The specific composition and regulatory power of state medical boards varies state to state, but the majority contain some number of public members who are often appointed by the state’s governor. (By comparison, the Massachusetts BBE is comprised entirely of lawyers.) Together, these seven members of BORIM decide all matters pertaining to good moral character of both applicants and licensed doctors.

The application process for acquiring a medical license in Massachusetts is extensive, with specific questions and requirements aimed at assessing issues of moral character and professional conduct. For instance, applicants must “report being arrested, arraigned, indicted or convicted, even if the charges against [them] were dropped, filed, dismissed or otherwise discharged.” For each criminal issue, the applicant must provide:

… certified copies of the complaint, judgment or other disposition and a copy of the police report must be sent to you in sealed envelopes from your lawyer, the court or other appropriate agency. … You must also provide a detailed explanation of the incident, including date, time, place, the court action and final disposition.

Importantly, and unlike the Massachusetts BBE requirements, applicants for a medical license in Massachusetts must submit to a Criminal Offender Record Information (CORI) check. It is also important to note that while every state has different requirements, there is a significant degree of convergence on certain procedures. For instance, according to the Federation of State Medical Boards (FSMB), 45 state medical boards conduct criminal background checks for initial licensure and 39 require fingerprints, highlighting the importance of applicants’ prior judgment and background no matter the state in which they practice.

In addition to information on one’s criminal background, the application contains questions relating to one’s conduct both in school (for example, disciplinary history) and in the workplace (for example, sexual harassment claims), any past issues of malpractice if applicable, as well as a required Certificate of Moral and Professional Character to be submitted by a licensed physician who has worked with the applicant for more than one year and can attest to his or her character. Of course, the application also asks for common background information such as school records, medical board examination scores, previous hospital affiliations, and basic personal identifiable information. Interestingly, many of these forms and scores are often held by the Federation Credentials Verification Services (FCVS), a centralized database of verified information operated by the FSMB.

Doctors have to formally renew their medical licenses at set intervals, which requires an updated criminal background check, disciplinary histories, and responses to questions that speak to moral character.

BORIM considers the combination of the above factors in assessing an applicant’s overall character. Sloane notes that while the majority of applicants normally have no problem with the background checks, on occasion the board will find gaps. “You find somebody has been on two years of probation or was asked to leave a program and didn’t tell you about it on the application,” she says. “This can raise a question of good moral character.”

Sloane is quick to note that a problem in your past is not cause for automatic denial of your application, but it is important that applicants are upfront and honest about it. To demonstrate how the board approaches the nuances of and tensions between an individual’s history and judgments of character, she offers the following scenario:

You have an applicant who was arrested for something in high school—let’s say it was related to drugs or alcohol. Well, we understand, first and foremost, that a lot has happened between then and now. This person would have had to fill out a very comprehensive application. Right away, the fact that they told us about the incident in this application tells us they’re in much better shape. By the time I’m seeing them, they’ve gone through college for four years, medical school for four years (at least), so eight years have passed, and they have a lot of records in a very competitive world. You’re going to look at the whole picture. But if they have a record, you often bring them in and interview them.

In other words, if there are any real red flags in an application, the board does not leave it to chance. They meet with the applicant face-to-face to get a sense of what happened and how he or she might have changed since the incident in question. And, should they ultimately deny the applicant, the Board reports the denial to a national database to ensure applicants cannot venue shop and try to gain admittance in another state.

BORIM is also in charge of the regulation of physicians throughout their careers—unlike the Massachusetts BBE, which deals only with the initial entry of lawyers to the profession—including licensing renewal processes, which include moral-character questions. (As the lead article “A Higher Bar” notes, in the Massachusetts legal profession, this is handled by the Board of Bar Overseers.) Indeed, doctors have to formally renew their medical licenses at set intervals, which requires an updated criminal background check, disciplinary histories, and responses to questions that together speak to one’s moral character. BORIM rules also include mandatory reporting of suspected violations, including with respect to another licensed doctor’s moral character. Here, again, Sloane emphasizes that the board is not looking for a way to keep people out so much as it is looking for a way to resolve problems that could affect the quality of patient care. “Some things, of course, cannot be remediated,” she notes. “But we want to help where we can.” She continues:

Let’s say somebody has a substance abuse problem and they come to us about it.  If it does not affect their work, if they have not crossed the threshold of the hospital, if it never comes to that, then that’s something that appropriately may not come to our attention. When it becomes our responsibility is when it comes into the workplace. If we see that, we need to stop the practice at that point, we need to assess the total picture, we need to help the person get treatment, and we need to see about a probation agreement to monitor them after they achieve a certain period of sobriety. Every situation is different. Our goal is to help a physician practice safely.

Just as lawyers can expect to find themselves in consequential, ethically challenging situations, medical doctors bear a heavy ethical burden in taking responsibility for the health of others. However, this is not to say that there is a causal link between a profession’s having a character and fitness requirement and the public’s perception of that profession as trustworthy. Indeed, poll after poll show that doctors are perceived as very trustworthy while lawyers are seen as hardly more trustworthy than advertisers and car salesmen, despite both the medical and legal professions maintaining character and fitness standards (for more on this, see “A Higher Bar”). The bottom line for the medical profession is this: if a doctor makes a mistake, it is imperative that he or she has the strength of character to bring that mistake to light and then fix it—lives could very well hang in the balance.

Through the eyes of a Canadian lawyer

Now imagine you are living in Canada, and you have just decided that you want to pursue a legal career in your province or territory. Looking ahead at what stands between you and your admission to the bar, you see a few significant checkpoints: a law school degree, passage of one or more exams, experiential training, and something called the “good character standard.” But what does the good character standard actually require of you? And when? To explore how the good character standard plays out in the career of the typical Canadian lawyer, The Practice sat down with Fred Headon, assistant general counsel at Air Canada and former president of the Canadian Bar Association.

In Canada, the licensing process includes no less than three components: You must pass the requisite exams, submit to a charter and fitness review, and undertake an experiential training practicum known as “articling.”

In the United States, the character and fitness standard asserts itself very early in the career of an aspiring lawyer—some might argue that it shows up before one’s legal career has even begun. Sure enough, there is a note about future character requirements on every law school application per American Bar Association (ABA) Standard 504. As noted in the article “A Higher Bar,” some state boards of bar examiners have proposed requiring affidavits that attest to the veracity of one’s law school application. Canadian law schools lack this sort of entry barrier—at least one explicitly tied toward future bar membership as a sort of “prescreening”—and there is not a widespread practice of collecting criminal and disciplinary histories through disclosure questions in Canadian law school applications either. “Over time we have come to the view that there is something just inherently good about education and, in particular, legal education, so the idea is you’re welcome to come and study here if you can make the grade,” says Headon. He continues:

What you do with your law degree afterwards is not their concern in the sense that the academy is not looking just to funnel lawyers into practice. Some law schools will alert applicants to the requirements for admission to practice, such as the good character standard, but they are not prescreening these things for the profession. From their standpoint, what you do with your law degree is up to you. It might be good for you to be in public service. It might be good for you to be in business. It might be good for you to pursue a master’s degree in something else. Canadian law schools might look at it and say, “Who are we to ask questions about your fitness to practice? We don’t even know if that’s what you’re going to do.”

After graduating law school, the next major step for aspiring U.S. lawyers is to take the bar exam—as any U.S. lawyer knows, the summer after graduation is typically filled with bar review classes. While the exact procedures differ state to state, this typically includes a concurrent process of submitting to a character and fitness review. Should you pass both, you are a fully licensed lawyer. In Canada, however, the licensing process includes no less than three components that must be satisfied before one becomes a fully licensed lawyer, and the chronology will often depend on the province or territory in which you are seeking to practice. Regardless of your intended jurisdiction, you must pass the requisite exams, submit to a charter and fitness review of some form, and undertake an experiential training practicum. This training, known as “articling,” typically consists of a 6- to 12-month period of apprenticeship under the guidance of a mentor lawyer in a law firm, government entity, or corporate legal department. As part of this training period, many provinces and territories also require a course to reinforce the practical lessons gained through articling, including a component on ethics and professional responsibility.

Articling has important implications for the good character standard. Apart from the real-world experience one comes away with after an articling term, aspiring lawyers will have spent a number of months under the observation of a practitioner and member of the bar. At the end of one’s articling term, this lawyer is charged with attesting that the individual has learned practical skills and possesses good moral character before he or she can become a fully licensed lawyer. “The lawyer or lawyers assigned to oversee this practical training for your education ultimately sign off that you are up to character,” Headon explains. “So there is some collection of objective data in terms of your record, and then there is also a more general assessment by a fellow member of the bar.” In this sense, a key part of an applicant’s good character certification comes from an established member of the bar with day-to-day knowledge of that individual in the legal work setting.

Once called to the bar, the good character standard is something to which Canadian lawyers are held throughout their legal career.

As in the U.S. legal profession, licensing and oversight of the good character standard resides with the provincial/territorial law societies rather than at the federal level, and each law society has different requirements. (It should be noted that unlike in the United States, regulatory power in Canada rests not with the courts but with statute-created, though nonetheless independent, law societies.) Again, like in the United States, all law societies require good character in some way, shape, or form—and in most cases this plays out in contexts that any U.S. lawyer would understand. For instance, for some provinces, the good character standard takes its own section of the licensing application, and the questions applicants must answer here will sound familiar to U.S. lawyers. In Ontario, for example, applicants are asked such questions as: Have you ever been found guilty of, or convicted of, any offense under any statute? Has judgment ever been entered against you in an action involving fraud? Have you ever been suspended, disqualified, censured, or otherwise disciplined as a member of any professional organization? For other law societies, such as the Northwest Territories, a candidate’s application must include letters from members in good standing attesting to the candidate’s good character. In British Columbia, there is even a “good character” section in the application for the province’s Law Society Admission Program, a step that takes place well before application for call and admission to the bar. While the specific timing within the licensing process may differ from one province to the next, anyone looking to be called to the bar in Canada will have to demonstrate good character before he or she is admitted.

It is worth noting that, just as in the United States (see “A Higher Bar”), the application of the character standards is not without controversy. For instance, should a convicted felon ever be called to the bar? As Headon explains, this is a live debate in the Canadian legal profession:

Some folks will take the position, “Well, look, I did the crime, but I also did the time and I’ve come out the other end of this, and I am capable and competent of practicing of law. Should I still be penalized further this way?” So we’ve had some rather challenging fact patterns about this that have come before some of the regulators.

Moreover—again, much like in the U.S. legal profession—the fact that there is no one common standard means that different law societies may have different, and potentially contradictory, rules and standards. A 2012 report by the Federation of Law Societies of Canada, the national coordinating body of Canada’s 14 provincial and territorial law societies, noted that the good character standard has been criticized for lacking specificity and consistent enforcement. Their report states:

Applicants for admission to the profession across Canada are required to be of “good character,” yet there is no agreed upon statement of exactly what an applicant must demonstrate to meet the requirement. Critics have argued that the standard is vague, difficult to define and apply, and creates uncertainty for applicants as a result.

Unlike in the United States, however, there have been efforts to create a federally defined standard. For instance, the Federation and other professional organizations, including the Canadian Bar Association, have worked toward writing a national standard for good character in the legal profession, and these efforts remain in progress.

“The good character standard comes back to the public’s ability to trust that we’re going to help them do what’s right and stand up for them when they need it,” says Fred Headon, assistant general counsel at Air Canada.

Once called to the bar, the good character standard is something to which Canadian lawyers are held throughout their legal career. If an issue arises where a lawyer’s character might be called into question, there are often rules in place for the lawyer to bring it to the attention of his or her respective law society. According to the bylaws of the Law Society of Ontario, there are a range of character-related incidents of which lawyers must notify the Society, including if they were charged with a drug-related offense or if they violated Canadian income tax law. Similarly, in another example, under the Law Society of Saskatchewan’s Code of Professional Conduct, lawyers have a “responsibility to the society and the profession generally … unless to do so would be unlawful or would involve a breach of solicitor-client privilege” to report not just criminal activity but also instances that call into question a lawyer’s “honesty, trustworthiness, or competency,” among other ethically questionable scenarios. That code goes on to lay a broader foundation for continued good character, stating, “A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.” If a client were to ever cite a Canadian lawyer for a conduct issue, it would most likely follow that lawyer to their respective law society. “In those situations, the problem is twofold,” says Headon. He continues:

We have a good character problem, but we also have a client who has now been wronged by a member of the bar. And so those cases do arise, and the disciplinary bodies attached to these law societies would tackle that. Here in Quebec, I would be expected to declare that something has happened that might call my character into question, and an investigation may ensue.

Character and Fitness In-House

Apart from being the former president of the Canadian Bar Association, Fred Headon is also an assistant general counsel at Air Canada. So we asked him: How does character and fitness factor into the career of an in-house lawyer?

“There is no formal difference, so it is very much a unified bar in that sense,” Headon explains. “But when it comes to the substance of the job, good character is critical for in-house counsel.” Ben W. Heineman Jr. similarly talks about the requisite “high integrity” of general counsel in his book, The Inside Counsel Revolution (see his article in The Practice by the same title). As the ranking—and potentially only—legal voice in the room, it is incumbent upon general counsel and other in-house lawyers to understand all manner of risk facing the company, whether it be legal, ethical, or reputational. In other words, the corporate environment presents a number of unique ethical challenges for lawyers, and thus good character is crucial to success.

“There’s something about that proximity to the client that is a bit of a double-edged sword, and that surfaces the need for certain strengths,” says Headon. He explains:

On the one hand, you’re more likely to discover something is problematic.  You’re more likely to have their trust and familiarity and understand their world a little better. So you might ask those extra probing questions that might bring to light something that is improper. That takes knowledge and good relationships. But on the other hand, you need to act on such information, which can place strain on relationships and may take a fair degree of perseverance. It’s a little different when you’re that close to the client, so how do you work with them to find another solution? To find a way that addresses the legal concerns but also maintains their trust? That is really one of the tough parts of the job, and it does take a certain character.

What should one make of all this? On a broad level, the good character standard in the Canadian legal profession exists to protect the public, affirms Headon. “It comes back to the public’s ability to trust that we’re going to help them do what’s right and stand up for them when they need it.” And, in that sense, the logic underlying the standard is very similar to that in the U.S. legal profession. That is, as officers of the court and the public’s primary access point to the justice system, it is essential that lawyers have good moral character. At the same time, it is also clear that this common vision is operationalized somewhat differently on each side of the border—for instance, with respect to law school admissions requirements or the additional step of articling to complete the licensing process in Canada. When it comes to preparing lawyers for the professional and moral responsibilities of the job, perhaps there are lessons to be learned from this comparison.

Character and fitness across the professions

As these case studies on character and fitness in the Massachusetts medical profession and the Canadian legal profession suggest, there is a broader consensus that good moral character is an integral part of being a professional—irrespective of specific locale or duties. These examples also suggest that each profession, through their respective regulatory bodies, is actively grappling with both how to fairly and accurately measure good character as well as how to act on those measurements. What should the average lawyer take from this? The broadest possible takeaway bears expressing: There are lessons to be learned from other jurisdictions and other professions. The U.S. legal profession is undeniably unique, but these case studies offer variations on profession and jurisdiction, respectively, that give insight to how the profession might approach character and fitness more effectively.

These two examples also pose questions worth asking in the context of the U.S. legal profession. From medicine: Should nonlawyers have a role in the regulation of lawyers via membership on boards of examiners? Should there be a more formal national system of credential verification within law, such as the FCVS system? Should the boards of bar examiners and boards of bar overseers be merged? From Canada: Should law schools be the gatekeepers for professional regulation, particularly when we know many law graduates never practice law? What role might an apprenticeship period play in providing on-the-job assessments of a potential lawyer’s character? By looking to other professions and jurisdictions, the U.S. legal profession can learn by proxy as it continues to seek the best and most effective ways to ensure a bar of well-qualified lawyers of the utmost character and fitness.

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Character and Fitness Volume 4 • Issue 3 • March 2018

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