Washington Law Review

Comment

Rules Versus Standards: A Moral Inquiry into Washington's Character & Fitness Hearing Process

June 01, 2020 | 95 Wash. L. Rev. 997

Abstract: Historically, moral character inquiries within the state bar admission process have led to the exclusion of diverse and important voices from the legal profession, both consequentially and at times by design. Washington does not keep statistics on the race, ethnicity, gender, or economic class of bar applicants who are referred to character and fitness hearings, nor on the outcomes of those hearings. Examining how implicit bias and disparate outcomes interact in other areas of discretionary adjudicative decision-making illustrates the potential impact that the character and fitness process has on underrepresented communities in the legal profession.

In a criminal justice reform context, well-intended shifts from discretionary standards to bright-line rules have increased disparate outcomes. Yet a recent Washington State Supreme Court case, In re Bar Application of Simmons, shed light on the opaque, discretionary nature of the character and fitness hearing process and led many to call for such clarity through rulemaking. Taking a lesson from twentieth-century criminal justice reform movements, Washington should refrain from developing any immediate, bright-line rules. Instead, reforms should first focus on the collection and review of comprehensive data regarding which applicants get referred for hearings and what outcomes result. Data-driven reforms to discretionary processes have a better chance at avoiding unintended outcomes. In another recent Washington State Supreme Court case, State v. Gregory, the court relied on a study quantifying the “statistical significance of the racial patterns” to overturn the death penalty. The Gregory opinion highlights why citable data is often essential to successful advocacy. More data is necessary to illuminate how the system currently operates. However, there is enough scholarship to support making certain reforms to the process immediately, including consideration of financial and behavioral health records.

This Comment is in conversation with current research regarding implicit bias in adjudicative processes. It opposes scholarship promoting further exclusion of bar applicants with prior convictions, or bright-line rules for admission absent supporting data.

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