The cover-up is always the problem

A recent comment to this blog asked, “What is your policy towards someone who has made some poor choices early in their life that resulted in a felony conviction?,” thus providing a perfect entrée for addressing a complex subject—and a subject about which I’ve been thinking a lot lately, because it’s That Time Of Year at law schools around the country. What time of year is that, you ask? The time of year where graduates start filling out their bar applications.

State bars ask a range of questions about applicants’ backgrounds, as part of a “character and fitness” check. The requirements vary from state to state, and sometimes the bar will ask about incidents of misconduct in a way that results in disclosure of something that was not disclosed on the law school application. Because state bars routinely get copies of the graduates’ law school applications, they note the different answers. And when they do, they want some assurance that the law school is copacetic with the situation.

Now, often the reason for non-disclosure is entirely non-problematic: the law school asks one set of questions (say, about convictions only, as Michigan Law does), and the bar asks an entirely different set (say, including arrests), and so of course the answer to the latter might not pertain to the former. When that occurs, the graduate meets with our dean of students and explains the situation; the dean of students contacts me, and I affirm that the graduate did nothing wrong; the dean of students drafts a little letter to the bar; and all is well.

Bonus points, by the way, to the clever folks who figure out the potential problem at the beginning of their law school career, by investigating the requirements of the bar to which they plan to apply. They get this matter all cleared away well in advance of bar study, avoiding incremental anxiety, however minor, during an already anxious time.

Sometimes the problem is slightly more touchy. Our misconduct question asks, “Have you ever been convicted of a crime, including misdemeanors and infractions, but excluding minor traffic violations”A drunk-driving conviction—to use the straightforward colloquial term, as opposed to one of the DUI, OUI, OWI, etc. possibilities that abound—sounds like a criminal matter, right? Well, not necessarily. Thanks to a conversation with a recent graduate, I now know of at least one state that treats the charge of “operating while intoxicated” as a civil traffic violation. The graduate had consulted a lawyer at the time of her law-school application, and been advised that the correct answer to our question was “no”—even though, the graduate conceded, an OWI conviction was a traffic violation that was certainly more than “minor,” the term we used as an example of what you don’t have to tell us about. So, this was a situation that is slightly less clearcut than my first example, because reasonable minds could differ about whether “no” was actually the correct answer to our question. That said—reasonable minds could differ, and therefore, it seemed reasonable that the graduate had answered as she had. Further, I was sure in this instance that had I known about the single OWI conviction at the time of this particular graduate’s application, I would have nonetheless admitted her. I mean, an OWI isn’t quite as easy a call as the misconduct explanation this year from the person who was disciplined at college for a noncompliant desk chair, but it was a single instance; it occurred in the fairly distant past; it was well-explained; there were no exacerbating circumstances. So, our dean of students was able to write a letter to the bar saying, in essence, “We think she should have told us about this at the time of her application, but we understand why she didn’t, and we would have admitted her had we known.” All will be fine for this graduate, but she probably would have preferred doing without the stress as she was first cracking the spine of her bar-review text.

These relatively benign instances of failing-to-disclose contrast sharply with the Really Bad Situation: where we haven’t been told about a conviction that quite clearly fell within our criteria. Sometimes the omission comes from pure boneheadedness. A friend of mine about to graduate from a different law school only recently realized that her pre-law-school plea of guilty to a drunk-driving charge was a “conviction.” Her pre-law-school self somehow drew a distinction between convictions arising from guilty pleas and convictions arising from jury trials, and she therefore answered “no” to the misconduct question on her law school applications. (After three years of law school, she had enough education to realize the error. A close friend of hers at the same law school, though, was convinced that the word “conviction” does not apply to the aftermath of a guilty plea. For the record, that friend is wrong. I admit that I wouldn’t have told this part of the story had the friend been a Michigan student.)

But sometimes, disturbingly, the omission arises from a plain-and-simple desire not to have the law school know about the conviction for fear the conviction will result in a denial decision. (Since people rarely admit to this sort of wrongdoing, of course, there is always a danger that a truthful explanation of boneheadedness fails to persuade a possibly cynical audience.) In this situation, we may decide we’re not able to write a letter that is entirely supportive of the graduate. Even if we think the covered-up incident was sufficiently minor that we would have made an offer, still, about the most we can say is something like this: “We are troubled that our student failed to declare this incident at the time of the application but nonetheless, had he done so, we think it likely that we would have admitted him.” Not exactly a ringing endorsement, and until (and unless) the graduate hears an affirmative response from the state bar, he is going to be extremely uncomfortable, as he contemplates the possibility that the last three years and attendant considerable expenditure was all for naught. For the record, these cases make the dean of students and me extremely uncomfortable too.

What about the worst-possible-case scenario, where the reason for not disclosing is not readily excusable AND the underlying misconduct is sufficiently serious that we are given real pause about whether we would, in fact, have made an offer had we known? It’s rare for misconduct to be so serious, but certainly not impossible (and different schools, to be sure, have different standards; my “youthful indiscretion” might be some other school’s hanging offense). I am happy to say that in my near-decade in admissions, I haven’t encountered that—so I can’t say with any certainty what the outcome would be. But I think it’s quite conceivable that people in this situation just aren’t allowed to sit for any bar.

That is obviously an outcome one wishes to avoid. How do you avoid it? Simple. Tell us what you did. Err, as we encourage in our instructions, on the side of full disclosure. If your past misconduct creates a serious problem for admission, however unfortunate that may be, there is nonetheless no question that you would rather know about it before you invest three years of your life and three years of tuition.

-Dean Z. Assistant Dean and Director of Admissions