A News Article To Read For The Next Harvey Spector

8 Mins

What Has Happened?

On 22nd January 2022 the esteemed New York State Bar Association voted in favour of a Proposal to relax the checks and balances for the admission of potential lawyers into the profession.

What Does It Mean?

In essence in the jurisdiction of New York will soon no longer be necessary for law graduates who strive for a career in the legal profession to notify the authorities of personal incidents involving the police which did not result in a criminal conviction. The change of approach is being introduced due to supposed persistent racial disparities in criminal justice.

By way of deeper analysis, the New York State Bar Association have made no secret of its intention to remove question 26 from the New York State Bar Examination Admission Application and has promulgated some recommendations. At present budding lawyers are asked to disclose if they have an antecedence for being arrested, taken to a place of custody, convicted, charged, indicted or pleaded guilty to a criminal offence.

The question has faced an onslaught of criticism from many quarters. Many seemingly struggling to understand how the Association is allowing this question to continue unopposed. The critics have put forward the case that it is unlawful due to being out of step with equality and diversity.

In terms of next steps, the decision by the New York State Bar Association will be put forward to a leading and respected panel of judges for a final decision on whether to introduce the proposed rules.

What Impact May It Have On The Legal Profession?

This article is not written with the purpose of commenting on whether this is a good decision or not. This will be discovered in the fullness of time. However, this article is an interesting empirical case study which seeks to compare the approaches taken between the Solicitors Regulation Authority in the jurisdiction of England and Wales and the proposed strategy being promulgated in the jurisdiction of New York.

This decision is potentially a revolutionary moment in United States legal history. If the recommendations are introduced, it would mean that when it was making crucial decisions about the characters of people being considered for admission into the prestigious profession would only be judged on their convictions for offences committed when they are over the age of majority and into adulthood. Future affected candidates would be exempt from judgment if their respective conviction was found to be under this age.  David Marshall from St John’s University School of Law is of the opinion that this decision could have large reverberations around the justice system in the United States of America.

Turning briefly to the contrasting situation in the jurisdiction of England and Wales where applicants for admission are held to a high standard of behaviour and are judged on past behaviour. Candidates are sanctioned if there is evidence that they have acted violently, dishonestly or if they have discriminated against someone on the basis of a protected characteristic. There are also sanctions for abusing a position of trust where a vulnerable person is involved or so doing with a view to using such relationships to gain a financial advantage.

The Solicitors Regulation Authority seemingly in stark contrast to the New York State Bar holds the principles of Honesty and integrity as crucial tenets to the legal profession. The SRA is lenient towards a solicitor falling foul of the rules if there is evidence of remorse, the event being in the distant past or if the behaviour was reasonable unlikely to have caused harm to others.

While some argue this ensures the highest level of integrity in the legal profession, it overlooks perhaps intangible personal growth. It will be interesting to see how the judge decision goes and anyone interested should keep their eyes peeled for more developments.

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Sources Used When Writing This Article

[SOURCE 1] Skolnik, Sam – New York Bar Votes to ease Police Checks for Would-Be Lawyers – 22 January 2022 – Bloomberg Law - New York Bar Votes to Ease Police Checks for Would-Be Lawyers (bloomberglaw.com)

[SOURCE 2] Clukey, Keisha – N.Y. to Ban Mental Heath Questions on State Bar Applications – Bloomberg Law – 26 February 2020 - N.Y. to Ban Mental Health Question on State Bar Application (1) (bloomberglaw.com)

[SOURCE 3] Marshall, David et al -New York Bar Association – Report and Recommendations of the Working Group on Question 26 of the New York State Bar Examination Admission Application – January 2022 - 1lE (aboutblaw.com)

[SOURCE 4] Principle 3 – Solicitors Code of Conduct - SRA | Principles | Solicitors Regulation Authority

[SOURCE 5] Principle 4 - Solicitors Code of Conduct - SRA | Principles | Solicitors Regulation Authority

Written by Jason Connolly