Dismantling Walls To Encourage Diversity in the Legal Profession
3.2.2022
A record-breaking heat wave had settled over Washington, D.C., in July 1993 when Hasan Shafiqullah joined about 100 other gay rights activists to march from Lafayette Park to the gates of the White House. They hoped to further turn up the heat on President Bill Clinton for his failure to fulfill his campaign promise to issue an executive order banning discrimination against LGBTQ+ individuals in the military. Instead of the promised executive order, President Clinton had visited the National Defense University two weeks earlier to announce the ill-fated “don’t ask/don’t tell” policy. That policy, as subsequently enacted into law, not only permitted service members to be discharged for disclosing same-sex orientation or activity but led to an increase in discharges of LGBTQ+ service members over the next decade.
Ignoring an order from the D.C. police to disperse despite the peaceful nature of their protest, Hasan and a number of his fellow demonstrators were arrested and charged with engaging in criminal activity. As a self-identified Brown, gay Bangladeshi American immigrant from Tucson, just a year out of the University of Arizona from which he had graduated magna cum laude, Hasan decided to plead guilty to a misdemeanor charge of demonstrating without a permit. At the time, he gave no thought to how that plea might affect his subsequent application to law school or to the New York State bar. As it turned out, Hasan’s plea made him a convicted criminal, and as an applicant with a criminal record, he would have to shoulder a burden to prove he was qualified for admission to the New York bar that the majority of other bar applicants do not have to bear.
The New York Bar Application Requires Overbroad Disclosure of Criminal Justice Involvement
The Application for Admission to Practice as an Attorney and Counselor-at-Law in the State of New York currently requires applicants to disclose any and all criminal justice system involvement, regardless of the outcome or seriousness of the offense, except for parking tickets and certain stale traffic violations. For example, Question 26 on the bar application asks:
Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted, or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding? Traffic violations that occurred more than ten years before the filing of this application need not be reported, except alcohol or drug-related traffic violations, which must be reported in all cases, irrespective of when they occurred. Do not report parking violations.
Question 26 is one of at least three questions on the admission application that require disclosure of criminal justice system involvement. To ensure that applicants interpret and respond to these questions in the broadest manner, the bar application instructions warn: “Candor throughout the admission process is required of all applicants, and even convictions that have been expunged should be disclosed in response to this question.” Applicants are also instructed that “the burden of proving that an applicant possesses the requisite character and fitness to practice law is borne by the applicant.”
Criminal Record Screening Disproportionately Affects Applicants of Color in New York
It is beyond genuine debate that the criminal justice system disproportionately impacts people of color in New York State. A 2018 analysis showed that whites make up 55% of the state’s population but only 33% of total arrests, while Blacks make up only 15% of the population but account for 38% of total arrests.1 Racial disparities are particularly egregious with respect to drug-related arrests. Although surveys show that marijuana and other drug use does not differ by ethnicity or race, except for comparatively higher marijuana use by white college students, “at the height of New York’s prosecution of drug crimes, about 90% of people incarcerated for such crimes were Black and Latino.”2 Because contact with law enforcement can generate a criminal record even in the absence of a conviction, an estimated 7.4 million people in New York State have a criminal record, according to a 2010 survey of Bureau of Justice Statistics data.3
The racial disparities associated with our criminal justice system prompted the authors of a paper on the use of criminal records in evaluating applicants for college admission to conclude, “Because racial bias, whether deliberate or inadvertent, occurs at every stage of the criminal justice system, screening for criminal records cannot be a race-neutral practice.”4 The chilling effect that criminal record screening may have on people of color considering whether to become lawyers is naturally difficult to quantify. However, a survey conducted by the Stanford Center on the Legal Profession found that “many individuals with criminal records are deterred from applying to law school in the first place.”5 The Stanford Center surveyed 88 people with criminal records, more than half of whom indicated that they were considering applying to law school. When they were asked why they had not yet applied, “over half cited concern about passing the moral character component as one of the top three reasons.”6 One respondent to the Stanford Center survey wrote in the comments: “‘I thought because I had a felony there was no chance[,] so I never tried.’”7
In a related and instructive context, the Center for Community Alternatives studied the impact of criminal record screening on applicants for admission to the State University of New York system of colleges and universities. The Center found that “for every one applicant rejected by Admissions Review Committees because of a felony conviction, 15 applicants are excluded by felony application attrition. This suggests it is the questions about criminal history records, rather than rejection by colleges, that are driving would-be college students from their goal of getting a college degree.”8 Coupled with the Stanford Center survey of prospective bar applicants, the Community Alternatives study of college applicants supports the inference that criminal record screening requirements have a ripple effect which flows from the bar application through law schools down to the college and high school level that may be contributing to the obvious under-representation of people of color at the bar and on the bench.
The American Bar Association reported in 2020 that although African Americans represent about 13% of the United States population, only 5% of all lawyers in the United States are African American.9 This disparity is replicated in other communities of color. The Hispanic community produces 5% of American lawyers but represents 19% of the United States population. Only 2% of licensed attorneys are Asian American, even though the Asian American community accounts for about 6% of the United States population. Native Americans represent less than one-half of 1% of licensed attorneys.10 The dearth of lawyers from communities of color naturally affects the diversity of the judiciary. Although the New York State judiciary is more diverse than the federal bench, approximately 70% of New York State judges identify as non-Hispanic whites while 14% of New York State judges are African American, 9% are Hispanic American, and 3% are Asian American.11
The Bar Application Questions About Criminal Records Violate Applicable Law
The New York State Human Rights Law (Executive Law § 296(16)) prohibits “mak[ing] any inquiry about” arrests that terminated in favor of the arrestee, adjournments in contemplation of dismissal, certain juvenile and youthful offender adjudications, and sealed convictions in connection with “the licensing, housing, [or] employment” of an applicant. This prohibition expressly applies to any “person, agency, bureau, corporation or association, including the state and any political subdivision thereof.” The Family Court Act (§ 380.1(3)) provides that juvenile and youthful offender adjudications under the act “shall not disqualify a young person from receiving any license from a public authority.” Consistent with these laws, judges issuing dispositions in the juvenile court system typically advise youthful offenders that records pertaining to the matter are not public and should not prevent them from seeking higher education, gainful employment, or public office in the future.
Although the Human Rights Law and Family Court Act contain certain exceptions to the prohibitions against criminal record inquiries and disqualifications – including, for example, for the licensing of firearms or the employment of law enforcement personnel – no exception is provided for the licensing of lawyers. On the contrary, New York Judiciary Law § 53(1), which authorizes the Court of Appeals to adopt rules regulating admission of attorneys to practice, limits that authority to rules that are “not inconsistent with the constitution or statutes of the state.”
Because the Bar Application Requires Criminal Record Disclosure, New York Law Schools Do, Too
Of the 15 law schools in New York, all but one – University at Buffalo School of Law – require applicants for admission to disclose criminal record information on their application forms. Most law schools request disclosure that is identical or substantially similar in scope to the information requested in Question 26 of the bar application. A few schools limit their requests to convictions, but even those schools require disclosure of juvenile and youthful offender adjudications.
When the New York deans and directors of law school admissions were asked in a recent informal survey by NYSBA’s Committee on Legal Education and Admission to the Bar (CLEAB) why their schools request criminal record disclosure from applicants, nearly two-thirds said they do so because the bar application asks for that information. Another one-third said that their schools make the request to comply with ABA Accreditation Council rules that require law schools to admit only students who they reasonably believe can be admitted to the bar, including passing the criminal record screening part of the state’s character and fitness review. As a result, for all practical purposes, law school admissions officials become the front line in fielding inquiries about the criminal record disclosure requirements on the bar application.
From her post on the front line of criminal record screening, the assistant dean of admissions at St. John’s University School of Law, Alicia Meehan, described a recent call from an attorney for a prospective applicant to the school. First, the attorney criticized the question on St. John’s application, which mirrors Question 26 on the bar application, as unreasonably vague because the language did not fit the categories of offenses in the penal code of the state where his client lived. Then, he requested that Dean Meehan advise him whether his client’s infraction in the other state must be disclosed on his law school application. Dean Meehan acknowledged that his client’s answer on the law school application was critically important because New York bar officials are known to assess applicants’ candor by comparing their law school application answers to their answers on the bar application. Nevertheless, despite her sympathy for his client’s predicament, Dean Meehan told the frustrated attorney that she couldn’t advise him how his client should answer the question because it was impossible for her to predict how the bar’s character and fitness committee members would interpret the criminal record disclosure requirements or how they would evaluate his client’s fitness to practice in light of his decision to disclose or omit his criminal justice involvement.
According to 86% of the respondents to CLEAB’s survey, admissions officers regularly field questions from prospective law students about criminal record disclosure requirements. Dean Meehan has for more than a decade attended and spoken at conferences of pre-law advisors who counsel college students interested in careers in the law and assist with their law school applications. She reports that a common refrain among pre-law advisors when discussing how to counsel students with criminal justice involvement is to tell students that they must “disclose, disclose, disclose.” She observed that this apparently widespread advice leads to over-disclosure, which is burdensome for both the student and the screeners of those applications. Nevertheless, none of the New York admissions officers who were surveyed stated that they were “confident” that New York bar officials would be “unlikely” to deny admission to a bar applicant as long as the applicant candidly and completely disclosed his or her criminal justice involvement.
When Hasan Shafiqullah applied to Hastings College of the Law at the University of California in 1994, several months after his misdemeanor conviction in D.C., he was surprised to discover questions about criminal justice involvement on the application form. He worried whether he had to disclose his conviction and, even more troubling, whether he would be asked to explain the circumstances of his conviction and forced to come out as gay to the admissions officers and faculty at Hastings. Only eight years earlier, the U.S. Supreme Court had decided in Bowers v. Hardwick that Georgia’s law criminalizing sodomy, even when in private between consenting adults, was constitutional. At that time, anti-sodomy laws appeared in the penal codes of two dozen states in addition to Georgia, which imposed a penalty of up to 20 years imprisonment under its statute. Such laws withstood federal constitutional challenge for another decade before the Supreme Court overruled Bowers in Lawrence v. Texas. Fortunately for Hasan, the Hastings admissions officer who answered his call told him that Hastings required disclosure of felony convictions, but not misdemeanor convictions. Hasan was admitted to Hastings and graduated in 1997.
While Hasan’s misdemeanor conviction did not need to be disclosed for the Hastings application, it does need to be disclosed for application to the New York State bar. Dean Meehan is aware of instances in which the breadth and vagueness of the criminal record disclosure questions on bar applications like New York’s has prompted pre-law advisors to encourage their students with criminal justice involvement to retain counsel to assist them with their law school applications. These advisors have also suggested to their college students with criminal convictions that they should plan on hiring counsel to accompany them to their character and fitness interviews when they apply for admission to the bar. The Stanford Center on the Legal Profession at Stanford Law School has estimated that retaining counsel to advise a bar applicant during a state bar character and fitness investigation can cost up to $20,000.12 It is not difficult to imagine the chilling effect on a college student’s desire to pursue a career in the law when the student hears that involvement with the criminal justice system will likely require not only paying for law school, but also hiring a lawyer and paying a hefty fee simply to be given the opportunity to prove to the bar’s character and fitness committee that he or she should be admitted.
Criminal Record Screening Does Not Reliably Detect Bar Applicants Who Are Likely To Violate Attorney Disciplinary Rules
Criminal record screening is usually justified on the ground that it identifies applicants to the bar whose prior crimes are reliable evidence of the risk they pose of future professional misconduct that could harm clients and injure the reputation of the legal profession. The late Professor Deborah Rhode, a pre-eminent scholar of legal ethics who founded the Stanford Center on the Legal Profession, studied the character and fitness process used by state bar officials for many years and concluded that “[t]here is no basis for assuming that one illegal act, committed many years earlier under vastly different circumstances, is a good predictor of current threats to the public.”13 According to Professor Rhode,
individuals can be exemplary with respect to some key traits but not others, and their character-related qualities can vary across situations and evolve over time. That should make us wary about sweeping claims that when it comes to character, individuals either have it or they do not. Yet . . . , legal decision makers too often make such misleading generalizations about moral character based on a single unrepresentative ‘bad act.’14
Scholars from the University of Connecticut have gathered empirical data to evaluate the proposition that a propensity to engage in professional misconduct can be inferred from the criminal records disclosed by applicants for admission to the bar.15 Examining the admissions files of applicants to the Connecticut bar from 1989 to 1992, they identified the applicants who had disclosed criminal records prior to their admission and compared their subsequent disciplinary history for a 20-year period to the disciplinary history of a random sample of admitted attorneys who did not have a criminal record. They found that “the information collected during the character and fitness inquiry does not appear to be very useful in predicting subsequent lawyer misconduct.”16
The New York State Bar Association Recommends Eliminating Illegal Criminal Record Inquiries From the Bar Admission Process
When Hasan Shafiqullah applied for admission to the New York State bar in 1998, he was again confronted with a demand to disclose his criminal record history. Once more, he had to suffer the stress induced by the prospect that he would be forced to “come out” to complete strangers on the Third Department Character and Fitness Committee if they required him to explain during his personal interview the circumstances surrounding his misdemeanor conviction. Because interviewers have discretion to probe or ignore any of an applicant’s answers to the character and fitness questionnaire, it was impossible to predict for Hasan what he might be asked or what details he might have to provide to satisfy his interviewer’s concerns. With no choice but to accept that risk, Hasan filled out the bar application and flew to Albany for his interview. As luck would have it, and to Hasan’s relief, his interviewer did not ask him about his criminal record. He was admitted to the New York bar that same afternoon, returned to his law firm in California, and the following year secured a job in New York with Queens Legal Services.
In Hasan’s case, fortune favored both the applicant and the residents of the State of New York. Lucky to be spared the embarrassment and cost of proving fitness to an interviewer whose attitudes toward criminal justice involvement could have been far less tolerant, Hasan for 20 years has dedicated his skills and energy to serving the indigent and the legal profession in New York. Today, he works as attorney-in-charge of the Immigration Law Unit at The Legal Aid Society, managing a team of almost 100 attorneys, paralegals, and social workers handling immigration-related matters in various administrative and court proceedings. He also serves as a member of the Committee on Immigration Representation and the House of Delegates of the New York State Bar Association. In less fortuitous circumstances, however, it is fair to assume that many aspirants to a legal career, who may lack Hasan’s courage to risk embarrassment and possible denial of admission, might decide to pursue other careers when confronted with the criminal justice disclosure requirements that currently appear on applications to law school and the bar in New York.
In January 2022, nearly 85% of Hasan’s colleagues in NYSBA’s House of Delegates joined him in voting to eliminate impermissible criminal record questions from the bar application in accordance with the Report and Recommendations of the Working Group on Question 26 of the New York Bar Admission Application.17 That report recommends that the Court of Appeals and the Administrative Board of the Courts:
(1) revise the bar application so that it complies fully with the New York State Human Rights Law and Family Court Act;
(2) state in the preamble to the bar application that applicants are not required to disclose in response to any question, oral or written, including but not limited to Question 26, information about (i) arrests not then pending that did not result in conviction,
(ii) sealed convictions,18 (iii) adjournments in contemplation of dismissal, and (iv) juvenile and youthful offender adjudications; and,
(3) arrange for the training of Character and Fitness Committee members and court personnel involved in the bar admission process to ensure that their review of bar applicants’ convictions is limited to permissible conviction inquiries and, as to those convictions, complies with Article 23-A of the New York Corrections Law.
It is impossible to quantify the chilling effect that criminal record screening has on young people who have the necessary talent and ambition to become lawyers but who come from communities that are under-resourced and over-policed, making them less likely to seek to become members of the bar. It is difficult to know how much the reputation of the legal profession is tarnished in those communities when the profession declines to correct a patently unlawful practice on the ground that statistical proof of the practice’s effect is purportedly too thin. According to Eulas Boyd, the dean of admissions at Brooklyn Law School, he and his colleagues make an enormous and continuous effort simply to maintain the number of students of color admitted to law schools in New York. Last year, after making nearly 16,000 offers in response to 62,000 applications, the 15 New York law schools enrolled 4,515 first year students, of which only 335 are African American and ten are Native American, Alaskan or Pacific Islanders. Consequently, for Dean Boyd, “Magnitude of harm is not the issue – any single person of color chilled by the bar application’s criminal record disclosure requirement is too much.”
David R. Marshall is chair of NYSBA’s Working Group on Question 26 of the New York Bar Application and co-chairs the Committee on Legal Education and Admission to the Bar. He is an adjunct professor and the director of the Center for Labor and Employment Law at St. John’s University School of Law. He began his career at the National Labor Relations Board in
Washington, D.C., before entering private practice and was most recently of counsel at Locke Lord.
1. Report to the New York State Court’s Commission on Equal Justice in the Courts, The Judicial Friends Association, at 24–25, Aug. 31, 2020, https://www.nycourts.gov/LegacyPDFS/ip/ethnic-fairness/pdfs/Judicial-Friends-Report-on-SystemicRacism-in-the-NY-Courts.pdf.
2. Boxed Out: Criminal History Screening and College Application Attrition, Center for Community Alternatives, at 41–42, March 1, 2015, https://www.communityalternatives.org/wp-content/uploads/2019/boxed-out.pdf.
3. Id.
4. Marsha Weissman et al., The Use of Criminal History Records in College Admissions: Reconsidered, at 25 (Nov. 2010), http://www.communityalternatives.org/pdf/Reconsidered-criminal-hist-recs-in-college-admissions.pdf.
5. Caroline Cohn, Debbie Mukamal, Robert Weisberg, Unlocking the Bar: Expanding Access to the Legal Profession for People with Criminal Records in California, Stanford Law School, Stanford Center on the Legal Profession, at 31, July 15, 2019,
https://law.stanford.edu/publications/unlocking-the-bar-expanding-access-to-the-legal-profession-for-people-with-criminal-records-in-california/.
6. Id.
7. Id.
8. Boxed Out: Criminal History Screening and College Application Attrition, Center for Community Alternatives, at 13, March 1, 2015, https://www.communityalternatives.org/
wp-content/uploads/2019/11/boxed-out.pdf.-content/uploads/2019/11/boxed-out.pdf.
9. See American Bar Association, ABA Profile of the Legal Profession 2020 at 34, https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf.
10. Id.
11. See 2020 Statewide Judicial Demographics Report, https://ww2.nycourts.gov/court-research/srjd-report.shtml.
12. Cohn, et al., supra, at 70.
13. Deborah L. Rhode, Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings, 43 Law & Social Inquiry 1027, 1034 (2018).
14. Id. at 1030.
15. Leslie C. Levin, Christine Zozula, Peter Siegelman, A Study of the Relationship between Bar Admissions Data and Subsequent Lawyer Discipline, University of Connecticut, March 15, 2013, http://ssrn.com/abstract=2258164.
16. Id. at 42.
17. See Report and Recommendations of the Working Group on Question 26 of the New York Bar Application, The New York State Bar Association (Jan. 2022), https://staging.nysba.cliquedomains.com/app/uploads/2021/11/H6.-Working-Group-on-Question-26-NYS-Bar-Exam-Admission-App-APPROVED-HOD-1.22.2022.pdf.
18. Under New York Criminal Procedure Law (CPL) § 160.59, a person can seal at most one felony, provided that the person has been crime-free for 10 years since the later of the person’s conviction or release from custody. Sex offenses, violent felonies, and serious felonies are not eligible for sealing under CPL § 160.59. A notice of motion to seal an eligible record must be filed with the relevant district attorney and, if opposed by the D.A., can be granted by the court only after a hearing. CPL § 160.59(6).
