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By Samson Habte
A nurse who excelled in law school after a prison term for serious drug and weapons charges was wrongly denied the opportunity to take the bar exam, the Washington Supreme Court held April 5.
The ruling was a judicial rarity: a published decision that overturns a state bar’s determination that a prospective lawyer lacks the “character and fitness” necessary for admission.
“Today, we affirm the principles that for purposes of bar admission, a moral character inquiry is determined on an individualized basis and that there is no categorical exclusion of an applicant who has a criminal or substance abuse history,” Justice Mary I. Yu wrote.
Lawyers for Tarra Denelle Simmons, the applicant in this case, said the decision was significant for two reasons: because it cleared the path for a promising advocate who could be a credit to the profession, and because it clarifies how bar regulators should weigh the factors that guide character and fitness inquiries, which are covered by strict confidentiality rules and thus rarely the subject of written court rulings. Simmons waived those protections in this case over the objections of the bar.
The opinion said Simmons was born in poverty to parents who were drug addicts, and that she was a victim of sexual violence who racked up a checkered juvenile record and convictions for serious crimes as an adult. In 2013, she left prison after a 20-month stint for delivering Oxycodone, possession of marijuana, and a firearms offense.
Four years later, Simmons graduated from Seattle University School of Law with honors and became a vocal advocate for former incarcerated persons. That background allowed her to recruit a raft of prominent character witnesses during these proceedings, including sitting judges, an elected prosecutor, and numerous faculty at her alma mater.
Her case gained even more exposure when her legal team grew to include Shon R. Hopwood, who was described as “arguably the most successful jailhouse lawyer ever” in a 60 Minutes profile that charted his path from convicted bank robber to Georgetown law professor.
“Tarra had the most remarkable record of rehabilitation of any person I’ve ever seen, including me,” Hopwood told Bloomberg Law.
“This is a tremendously important decision,” said Leslie C. Levin, a University of Connecticut law professor who conducted one of the first empirical studies on the predictive value of character and fitness inquiries.
“The Washington Supreme Court did exactly what courts should do,” Levin said. “It looked closely at the empirical evidence to assess whether Ms. Simmons is likely to be a threat to the public in the future.”
Hopwood and his co-counsel, Seattle University law professor John A. Strait, said their client was not the only beneficiary of the court’s ruling.
Every jurisdiction has rules that govern character and fitness determinations, and those rules list factors that bar authorities should consider when conducting those inquiries.
The problem is that “there’s no guidance on how to weigh” those factors, Strait said, who noted that the court has not addressed the topic since 1984.
Hopwood said Washington’s admission rules list “something like 36 factors and subfactors” that are relevant to character and fitness determinations. “If you give lawyers 36 factors and no guidance on which ones to focus on, they can justify any decision.”
By providing some guidance here, the court produced an opinion that “will be doctrinally useful” for bar regulators across the country, Hopwood said.
The bar application process is confidential, and character and fitness inquires—the most sensitive component of the application process—are particularly shielded and thus not often the subject of written opinions.
That makes it difficult for courts to assess the consistency of recommendations from character and fitness boards, and it makes it hard for applicants to argue from authority when they challenge those recommendations with state supreme courts, which have the final say on bar admission.
Hopwood’s involvement in this case was a product of that difficulty. Strait, who had represented Simmons at the administrative level, wanted to show that the board treated his client differently than previous applicants who cleared the character and fitness hurdle even though they had similar histories of criminal and financial trouble.
So he reached out to one such applicant the board approved by an 11-0 vote: Hopwood, who agreed to waive confidentiality so that Simmons could use his character and fitness records in her briefs—and then agreed to join her legal team. Three other successful applicants also agreed to let Simmons refer to their records in her case.
In their notice of appeal, the lawyers said the board’s 6-3 vote against Simmons couldn’t be squared with the favorable recommendation they gave Hopwood—who, unlike Simmons, had no “significant mitigation history of trauma or reliance on addiction to self-medicate,” and who committed more serious crimes when he “walked into at least five banks and used a gun to demand money.”
One factor that distinguished the cases was the gender of the applicants. Simmons didn’t argue that the board’s decision in her case motivated by any gender bias—but the court suggested, without holding, that gender might explain some of the board’s assessment of Simmons’s attitude toward her prior conduct.
“Some of the attitudes she expressed in the record and at the hearing signal that her acquired fame has nurtured not integrity and honesty, but a sense of entitlement to privileges and recognition beyond the reach of others,” the board said.
“We cannot agree with the Board’s assessment,” the court said.
“Although every bar applicant is unique, we do not believe there is a sufficient basis on which to differentiate between Hopwood’s and Simmons’ respective attitudes toward their prior misconduct and the publicity they have received, except for their gender,” the court said.
The possibility the board may have been influenced by gender bias clearly rankled some members of the court.
During oral argument, Justice Sheryl Gordon McCloud pressed the WSBA’s counsel to explain why the board’s report—which, like most documents in the case, was sealed—emphasized the number of times that Simmons mentioned that she was the second student from a Washington law school to receive a prestigious Skadden Fellowship.
The board seemed to draw a negative inference from “her pride in her awards and her fellowship and her accomplishments,” McCloud said. “Has she been more or less prideful or boastful [than] the men have been?”
Yu later noted that the transcript of the board’s hearing showed that the “chair kept asking Ms. Simmons to speak up because she was speaking so softly.”
The court noted in its opinion that Simmons made no allegations of bias in this case. “We therefore do not explore potential indicators of bias, and note only that it is extremely important for the WSBA and the courts to ensure that they are sufficiently informed to make subjective judgments about applicants with histories of substance abuse, criminal convictions, and financial problems,” the court said.
Hopwood told Bloomberg Law that it was fitting that Yu authored the opinion. The justice, he noted, broke two barriers when she became the first openly gay and first Asian American member of the state’s highest court in 2014.
The case is In re Simmons , 2018 BL 120083, Wash., No. 201,671-5, 4/5/18 .
To contact the reporter on this story: Samson Habte in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Copyright © 2018 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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