Moral Character Inquiry for Washington State Bar Admission

Facts of the Case

Ms. Simmons was raised in an environment characterized by poverty, crime, substance abuse, and sexual victimization. At age 13, she ran away from home and experienced periods of homelessness. She was adjudicated guilty of theft, possession of stolen property, and second-degree assault as a juvenile, and she struggled with substance use for years. As an adult, she was convicted of second-degree assault in 2001 and of organized retail theft, unlawful possession of a firearm, and possession of controlled substances in 2011. Ms. Simmons served more than three years in jail and prison for her criminal convictions. Her nursing license was placed on probation, and she faced two bankruptcies and foreclosure on her home.

While Ms. Simmons was in prison in 2011, she engaged in trauma and addiction treatment and, from that point forward, maintained sobriety. Following incarceration, Ms. Simmons attended Seattle University School of Law, was a Dean's Medal recipient, and graduated magna cum laude in May 2017. She became an advocate for civil legal aid, focused on assisting formerly incarcerated individuals with reentry barriers. She was the first student from her university to be awarded a Skadden Foundation fellowship, a national fellowship awarded to junior lawyers who intend to practice public interest law. Ms. Simmons garnered written support from supervisors, faculty, and peers attesting to her consistent ethical behavior during her internships and volunteer work.

Although Ms. Simmons demonstrated a remarkable behavioral transformation postincarceration, her history led the WSBA to refer her application to the Character and Fitness Board for consideration of whether she met the burden of proof that she was of good moral character and fit to practice law. During a Board hearing in April 2017, Ms. Simmons, the youth policy director for the American Civil Liberties Union of Washington, an administrative law judge, and a superior court judge testified on Ms. Simmons' behalf. Following this hearing, the Board recommended denial of Ms. Simmons' application by a six-to-three vote. Because the Washington Supreme Court is the “exclusive authority” to decide bar applications, Ms. Simmons requested that the court review her application and the Board's recommendation.

Ruling and Reasoning

The question before the court was whether Ms. Simmons demonstrated by clear and convincing evidence that she was of good moral character and fit to practice law. After hearing oral arguments and reviewing Ms. Simmons' application and the Board's recommendation, the Washington Supreme Court unanimously granted her application.

Every state bar requires character and fitness qualifications for admission (see Standard 504, Qualification for Admission to the Bar, https://www.americanbar.org). Lawyers are entrusted to protect valuable client assets, and certification of character and fitness requirements safeguard the public and uphold professionalism and the ethical practice of law. The court asserted that standards used to assess moral character change with evolving societal norms and moral conventions. The court cited the Washington State Court Admission and Practice Rules (APR) (http://www.courts.wa.gov/court_rules) as guidance for the Board's recommendation and determined that the Board's recommendation was not conclusive, only advisory. The court therefore concluded that their standard of review for such inquiries was de novo.

The court concurred with the Board that Ms. Simmons bore the burden of proving that she was of “good moral character,” defined in APR 20(c) (2016) as “a record of conduct manifesting the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibilities, adherence to the law, and a respect for the rights of other persons and the judicial process.” She also bore the burden of proving that she was fit to practice law, defined in APR 20(d) (2016) as “a record of conduct that establishes that the applicant meets the essential eligibility requirements for the practice of law.” The Board concluded that Ms. Simmons met three of the five essential eligibility requirements as outlined in APR 20(e) (2016). Those three requirements centered on Ms. Simmons' ability to perform legal tasks and fulfill professional obligations, to competently execute essential legal skills, and to communicate clearly. The Board opined that Ms. Simmons failed to meet two requirements, which addressed her ability to exercise good judgment and “conduct oneself with a high degree of honesty, integrity, and trustworthiness in financial dealings, legal obligations, professional relationships and in one's professional business” and “in a manner that engenders respect for the law and adheres to the Washington Rules of Professional Conduct” (Simmons, p 1115). The court disagreed with the Board on those two findings.

The Washington Supreme Court said that Ms. Simmons was sufficiently rehabilitated from her previous conduct and demonstrated positive behaviors consistent with good moral character and fitness to practice law. The court declined to adopt a bright-line rule for the duration needed to determine adequate rehabilitation because of the individualized nature and complexity of recovery. The court contrasted this opinion to specific time-based restrictions for reinstatement after disbarment. It reasoned that new applicants have never violated public trust and their previous misconduct “rarely” provides irrefutable evidence of a lack of good moral character and fitness to practice law. The court stated that Ms. Simmons' six-year record of sobriety, financial stability, honesty, laudable behavior, and appropriate response to situations that might predispose her to relapse was sufficient to demonstrate that her recovery was of adequate duration. The court cited research that concluded that a substantial majority of substance abusers who remain abstinent for at least five years will not relapse. The court noted that Ms. Simmons had already reached a sufficient period of sobriety such that her behaviors were “about as likely as they ever will be” to represent lasting change (Simmons, p 1118). Finally, the court noted that Ms. Simmons was the first person in Washington to be awarded a “Certificate of Restoration of Opportunity,” a civil court order that prohibited many state licensing entities from denying eligible individuals an occupational license solely on the basis of a criminal record.

The court concluded that Ms. Simmons' “respect for the law” also demonstrated her good moral character and fitness to practice law. The court disagreed with the Board's conclusion that Ms. Simmons minimized her substance use history. The court concluded that the initial bar application could not lawfully require such a disclosure, in accordance with APR 22.1(e) (2016), and that Ms. Simmons voluntarily provided her medical records once there was specific justification to request such information. Further, the court concluded that Ms. Simmons' attitude toward the Board was not entitled or inappropriate. The court said that the Board erred in their adverse view of Ms. Simmons' publicity and pride in her accomplishments and contended that her publicity in the case was reasonable given her circumstances, and that, if anything, her publicity further held her accountable to maintain sobriety. The court reasoned that Ms. Simmons had attained achievements beyond those of an average law student and was right to take pride in her accomplishments. The court did not observe evidence that Ms. Simmons expected special treatment, but rather viewed her efforts to keep the decision to approve her application at the lowest adjudicatory level as appropriate for a burgeoning lawyer.