Barbarian at the gates: Revisiting the case of Matthew F. Hale to reaffirm that character and fitness evaluations appropriately preclude racists from the practice of law

Sloane, Richard L

BACKGROUND

Matthew F. Hale is an outspoken racist. He makes no effort to hide this fact. To the contrary, he appears to be quite proud of it. Through the mouthpiece of the World Church of the Creator ("WCOTC"), an organization holding itself out to be a religion and devoted to white supremacy, Mr. Hale plays the role of the official spokesperson for the white race.' Mr. Hale is anything but shy regarding his beliefs. He considers himself to be on a mission. In what has been described as an "articulate and quite direct" approach, Mr. Hale has publicly stated that white people do not want to foster or support an America defined by diversity or multi-culturalism.2 Rather, according to Hale, white people "want a white community for themselves. Not an integrated cesspool.

Unfortunately, Hale's beliefs and comments are not new in America. Since its founding, America has struggled with the issue of race, and carries with it the scars of a "long and tragic history of race discrimination in this country."4

Were Hale simply an individual with offensive ideas, his statements would probably gain attention only from a few conscientious groups such as the Anti-Defamation League, the Southern Poverty Law Center, the Center for the Study of Hate & Extremism at California State University-San Bernardino, the Simon Wiesenthal Center, Human Rights Watch or Amnesty International.5 Most of America would simply write him off as a "kook" and part of the extreme fringe of the wide spectrum of opinions that must be tolerated in the name of democracy.6 Hale is not, however, the ordinary, run-of-the-mill, garden-variety racist. What makes Hale's opinions so dangerous is that he is a racist who wants a license to practice law.

Matthew Hale's beliefs call us to confront the question of the appropriate standards of "good moral character and general fitness to practice law." Is a lawyer held to these standards only while he or she is engaged in professional activities? Or, should lawyers be held to certain standards of behavior twentyfour hours a day, seven days a week, in the office as well as outside of the office? Should people who hate others solely on the basis of race or religion be admitted to the bar? What are challenges currently facing the legal profession regarding character and fitness examinations?

These are some of the questions addressed by this Note. Part One of this Note traces the history of the "good moral character" requirement for bar admission, and briefly discusses the other two factors that are generally required for bar admission - graduation from law school and a passing score on the written bar examination. As will be discussed, law school graduation and the written bar examination are considered the well-defined or "black and white" sections to the overall topic of bar admission. In contrast, the "good moral character" standard is the more subjective or "gray" part of the bar admission process. Further, this section traces the societal underpinnings and legal standards that combine to form the foundation of the "good moral character" standard.

Part Two of the Note focuses on the case of Matthew F. Hale and evaluates the decision by the Illinois Committee on Character and Fitness to reject Mr. Hale's application to become a member of the Illinois Bar on the grounds that Mr. Hale is an avowed racist and white supremacist. In this analysis, the Note discusses the events leading up to Hale's appeal to the Supreme Court of the United States, which ultimately resulted in the Court's denial of Hale's petition for a writ of certiorari. The Note summarizes the findings of a careful study of Hale's beliefs and opinions, based upon interviews, news reports and information listed on the website of the WCOTC. In summary, this Note will support the decision ordered by the Supreme Court of Illinois to deny Hale's petition for admission to the bar on the basis that Hale lacks the requisite moral character to be a lawyer in Illinois. In the opinion of the author, Hale lacks the requisite moral character to be a lawyer in any jurisdiction. It remains to be seen, however, if courts in states other than Illinois agree.

Mr. Hale vehemently argued that the First Amendment protects his right to hold his beliefs and enables him to practice law.9 It is well settled, however, that the First Amendment does not carry with it absolute freedom. l'o In Mr. Hale's case, and in cases involving extreme opinions similar to those held by Mr. Hale, the protection of the First Amendment must take a back seat to the integrity of the legal profession and the pursuit of justice. Simply, this Note argues that the melting pot of the American legal system simply is not big enough to accept racists among its ranks.

Part Three of the Note argues that the decision to deny bar membership to Matthew Hale was relatively clear-cut - even in light of the First Amendment claims raised by Hale." In the area of bar admission decisions on the basis of character and fitness, several cases present significantly more challenging and subtle issues than those raised in the Hale case. This section of the Note introduces two such cases and the related issues that each case introduces. The Note concludes by remarking on the state of character and fitness standards in the American legal professional community, as well as changes to these standards that could or should be made.

A final point by way of personal introduction: The research and writing invested in the creation of this Note have had a profound impact on me. I would argue that it is not uncommon for authors to choose a subject for investigation with a pre-determined conclusion in mind - that is, before writing the first word, the conclusion has already been cast in stone. Talented authors, like talented lawyers, are able to locate materials on a given topic to support most any position that they intend to prove.

I candidly admit that I was guilty of this temptation at the outset of this project. When I decided to write about Mr. Hale's case, my initial inclination - before delving into Mr. Hale's background and the operations of the WCOTC - was to conclude that Mr. Hale should be admitted to the bar and be licensed to practice law. After all, he had graduated from law school and passed the written bar examination. Likewise, the First Amendment constantly stared me in the face. "Couldn't the legal profession tolerate a racist?", I wondered. Society, after all, continues to operate with known racists among its ranks. What's the worst thing that could happen with an avowed racist in the bar? Wouldn't market efficiency ferret him out, leaving Mr. Hale with a few, equally crazy extremists as his clients? I believed that Mr. Hale, if admitted to practice law, would likely be ostracized by the vast majority of the legal profession, and left as an outcast on the fringe of the profession -just as he is on the fringe of civilized society.

Generally, I wondered, how much harm could he cause? Would his membership in the bar be so bad? Or, in the alternative, what if Mr. Hale truly could successfully and completely separate his personal racist beliefs from his professional responsibilities as a lawyer? What if he could operate as a successful and ethical attorney - though a hateful person? In that case, wouldn't his bar admission seem to be the only logical answer?

Then I began to dig. As I researched the issue, I learned a great deal about Mr. Hale's beliefs, thereby encountering some of the the most offensive and disturbing viewpoints I have ever come across. This process led me to conclude that Mr. Hale's beliefs definitively preclude him from being able to take and abide by the attorney's oath in good faith. As such, he is unable to execute the duties and responsibilities that weigh on every licensed attorney. With that finding, it was easy to support the denial of Mr. Hale's application for admission to practice law.

1. PART ONE

A. INTRODUCTION

In the 1996 decision In re Harvey Prager, regarding application for admission to the Massachusetts Bar, the Supreme Judicial Court of Massachusetts stated:

The right to practice law is not one of the inherent rights of every citizen, as is the right to carry on an ordinary trade or business. It is a peculiar privilege granted and continued only to those who demonstrate special fitness in intellectual attainment and in moral character. All may aspire to it on an absolutely equal basis, but not all will attain it. Elaborate machinery has been set up to test applicants by standards fair to all and to separate the fit from the unfit. Only those who pass the test are allowed to enter the profession, and only those who maintain the standards are allowed to remain in it.12

Similarly, on the federal level, the United States Supreme Court observed in Baird v. State Bar of Arizona that "[t]he practice of law is not a matter of grace, but of right for one who is qualified by his learning and his moral character."13 In Baird, the Court recognized that although academic study was required, it alone was not sufficient to qualify an applicant to practice law: moral character was a fundamental and necessary component as well.

With this background, two questions naturally follow: first, why does the legal profession maintain the requirement of "good moral character" for admission to the bar? Second, what are these qualifications of learning and moral character?

Generally, states have an interest in ensuring that lawyers admitted to practice possess high moral standards and are mentally and emotionally stable. 14 In recognizing the responsibility and authority that accompanies a license to practice law, it seems only reasonable to conclude that a license to practice law is neither an inherent right nor a "matter of grace."'5 Geoffrey Hazard's popular law school textbook reaffirms this fundamental principle. "Admission to a particular court carries with it the right of audience (i.e., to present matters on behalf of clients) in all courts of the jurisdiction, and to engage in law office practice."16 In order to earn these rights and responsibilities, applicants in a given jurisdiction are typically required to complete the curriculum at a law school approved by the American Bar Association, pass the written section of a bar examination, and satisfy a requirement of "good character.""For as long as the "good character" requirement has existed, though, a clear definition of the standard has remained unsettled.'8 Historically, "good character" was often interpreted to mean that the applicant was considered an acceptable addition to the local establishment of the bench and bar, i.e., that the applicant satisfied the local perception of "good character."19 Is it proper, however, to judge applicants to the bar according to the specific standards of the current, local legal community - essentially, evaluating only whether the applicant is "acceptable" to the local legal community? Or, is it preferable to hold applicants to a broader, universal standard of "good moral character" in determining whether to admit a particular applicant to the legal profession? Overall, while the preparatory process for entry into the legal profession admittedly leaves much to be desired, it has made great strides to "displace a system that was uneven, frequently indifferent to any matters of qualification and often discriminatory against newcomers in society.'O

B. THE "BLACK AND WHITE" PARTS: LAW SCHOOL AND THE BAR EXAMINATION

Of the three requisite factors for bar admission: graduation from law school, passage of the bar examination, and evaluation of character and fitness to practice law, graduation from law school and passage of the bar examination are more "clear cut" and definable standards than the character and fitness evaluation. Either candidates to the bar have completed the required curriculum for the Juris Doctor degree or they have not.2' There is no "middle ground."22 Similarly, with the bar examination, either applicants achieve a passing score or they do not. Once again, there is no "maybe" category.23 As the analysis in the upcoming section will illustrate, though, the same sense of clarity and predictability cannot be said of the "good character" standard.

One of the reasons that the law school educational system is arguably less subjective than the evaluation of character and fitness is that American law schools have three national organizations that set governing standards - the Section of Legal Education of the American Bar Association ("ABA"), the Association of American Law Schools ("AALS") and the Law School Admission Council ("LSAC"). As one of the three national organizations participating in setting the standards and procedures that govern law schools, the AALS has as its purpose "the improvement of the legal profession through legal education."24 There are a variety of requirements maintained by the ABA in order to maintain law school accreditation. These requirements cover curriculum, law library resources, classroom facilities and faculty.25 In the area of curricular standards, ABA-accreditation requires that all Juris Doctor program graduates receive "instruction in the duties and responsibilities of the legal profession."26

In addition to the successful completion of the required law school academic curriculum, with very limited exceptions, passing the bar exam is a second requirement for admission to practice law.27

C. THE "GRAY" PART. CHARACTER AND FITNESS EVALUATIONS

Where the law school educational system and bar examinations are, relatively speaking, "black and white," character and fitness evaluations are "gray" at best. Yet, while arriving at a consensus definition of "good moral character" is impossible, the legal profession is far better served with the character and fitness evaluation in place than without it. This should come as no surprise, as it is widely accepted that a "license to practice law confers great powers on lawyers to do good or wrong."28 With this recognition, it is necessary to have a screening mechanism to enforce and maintain high standards of professional behavior.29 Of course, while bars for decades have screened candidates on the basis of their character, the process has occasionally been controversial for a number of reasons inherent to the task, including:

[D]ifficulty in defining the standards of character thought to he minimal, the difficulty of ensuring fair application of any standards that may be agreed upon, the risk of either invasive inquiry or invidious application of standards under the claim of rigorous examination, and the overriding difficulty of predicting future professional conduct from a necessarily abbreviated personal history and the committee's access to such past activities as are sufficiently public to be checked.30

In what is widely recognized as the seminal piece regarding the relationship between moral character and the granting of professional credentials to practice law, Professor Deborah L. Rhode observes that, "[w]ithin the American bar, moral character requirements have been a fixed star in an otherwise unsettled regulatory universe. Educational standards came and went, but, at least after the colonial period, virtue remained a constant prerequisite, in form if not in fact."31 Yet, despite the lengthy historical requirement of certification of character as a prerequisite for practice, the content and implementation of these requirements have "attracted remarkably little scholarly interest."32 With the exception of "brief flutter[s] of interest during the McCarthy and Watergate eras, certification has provoked little debate."33 This relative disinterest is, indeed, surprising, especially in light of the longstanding (and, at least partially well-deserved) public concern regarding the morality of attorneys.34 According to Professor Rhode's research, this public concern dates back to the mid-seventeenth century, during which time a number of American colonies "attempted to ban the [legal] profession entirely, and in the post-Revolutionary period, animus against lawyers' `blood sucking' practices frequently ran high."35 There is no indication to suggest that this trend has abated, as "[m]ost Americans say they hate lawyers. In America, even some lawyers say they hate lawyers."36 With such extreme distaste for and distrust of legal practitioners, it is no wonder that, in the eighteenth century, Massachusetts imposed character requirements which demanded references from three ministers; Virginia required certification from a local judge; and New York and South Carolina provided for examination by the court to determine whether the applicant to the bar was "virtuous and of good fame" or represented "probity, honesty, and good demeanor."37 Sadly, much of this distaste for and distrust of lawyers has persisted (if not expanded) in the modern era.

Acknowledging that the admission to the legal profession carries with it significant rights, it appears clear that the standards for admission should be selective. As a means to achieving this end, evaluations to determine "good moral character" are a critical element to ensure (or, at very least, increase the likelihood) that admitted members to the profession will maintain the integrity of the profession. For all its faults, the character and fitness examination, far more often than not, performs admirably - both to the admission of candidates of "good moral character""38 and to the rejection of candidates lacking "good moral character." Of the character and fitness evaluation process, it can be said: admittedly gray - but essential.

D. SOCIETAL UNDERPINNINGS OF THE "GOOD MORAL CHARACTER" STANDARD

In making the character and fitness examination a requirement of every applicant to the bar, the legal profession recognizes the interrelatedness of the legal community, as well as the interconnectedness between the legal community and non-legal society.39 By requiring every applicant to meet a minimum standard of "good moral character" at the time of application, the governing body of the legal profession has plainly stated that even a few "bad apples" will not be tolerated among its ranks. As Martin Luther King, Jr. wrote in his famous Letter from a Birmingham Jail:

I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of deStiny.41

Just as the racism and segregation referenced by Reverend King tear at the fabric of the country, so, too, may the beliefs held by members of the legal profession. If law is but a means, and justice the end, then it is vital to maintain the "good moral character" requirement as a pre-requisite to admission to the bar. Although the standard has been criticized as subjective and difficult (if not impossible) to define, fundamentally, the "good character" requirement operates to ward off injustice - in the form of applicants who lack the requisite "good character" and might be more likely to engage in acts of injustice.

Requiring each applicant to satisfy the "good moral character and general fitness to practice law"42 standard is thoroughly consistent with the notion of lawyers being officers of the court.43 The Preamble to the Illinois Rules of

Professional Conduct states that, "[tlhe practice of law is a public trust."44 Similarly, the Massachusetts Bar Association Statement On Lawyer Professionalism offers a wealth of instructive standards.45 The following are some examples of the standards to which lawyers are held:

* Subsection H specifically discusses lawyers as officers of the court. Subsection 3 states that "[a] lawyer having knowledge that another lawyer has committed a violation of the disciplinary rules which raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority."46

* Similarly, under the section regarding lawyer public relations, Subsection A, Subsections 1 and 3, respectively states:

1. Lawyers should be mindful that the Disciplinary Rules (SJC Rules 3:07 and 3:08) mandate only minimum acceptable standards of conduct and that lawyers should endeavor to conform to the highest principles of professional conduct.

3. Lawyers should be sensitive to the legal profession's tradition of restraint in the area of self-promotion and should engage only in tasteful and honest promotion of legal services.47

Having established that the "character and fitness" requirement should be maintained as a prerequisite for entry into the legal profession, it is appropriate to examine the legal foundations for this requirement. This discussion focuses on a statement of the law and applicable policy pronouncements regarding admission to the bar. Section Two of the Note applies the gleanings from this discussion to present evidence in support of the conclusion that Matthew Hale lacks the requisite "good character" to become an attorney in Illinois.

E. LEGAL FOUNDATIONS GOVERNING ADMISSION TO THE BAR

The Restatement of the Law Governing Lawyers is introduced by a clear statement outlining the vision of the world of legal ethics: "Lawyers are regulated by moral, professional, and legal constraints in discharging their several responsibilities as representatives of clients, officers of the legal system, and public citizens having special responsibilities for the quality of justice."48 This sweeping pronouncement is followed by a broad policy statement as to the goal and purpose of requirements for admission to practice law: "In general, a jurisdiction's requirements for admission and for renewal of a license to practice law are best designed when directed primarily toward protecting prospective clients and the legal system against incompetent practitioners or those whose professional acts would predictably cause harm to clients, the legal system, or the public."49 The general guidelines of the Restatement governing admission to practice law are stated in Chapter 1, Section 2: "In order to become a lawyer and qualify to practice law in a jurisdiction of admission, a prospective lawyer must comply with requirements of the jurisdiction relating to such matters as education, other demonstration of competence such as success in a bar examination, and character."50

The standards for admission set by the ABA's Model Rules of Professional Conduct Rule 8.1 are consistent with and complement those of the Restatement, instructing that:

An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.51

Moreover, the standard set forth in Model Rule 8.1 is identical to the standard for bar admission and disciplinary matters laid out in The Lawyer's Deskbook on Professional Responsibility, promulgated by the American Bar Association's Center for Professional Responsibility.52

These stated standards reflect the usual bases upon which states examine an applicant's moral character. The central inquiry concerns the present ability and disposition of the applicant to practice law competently and honestly. Most "character-and-fitness" committees function mainly on the basis of personal questionnaires that must be completed by each candidate, sometimes supplemented by required affidavits or letters of reference from existing bar members or others verifying the candidate's good character, attestation of a lack of a significant disciplinary record by the administration of the candidate's law school (where formal discipline is extremely rare), and occasional checks of public records.53 Courts have imposed limitations on questions that seek information about political associations or that offend federal laws, such as those regarding disabilities. The effort in many states is coordinated through a national clearinghouse for general information about bar candidates, which detects some applications by lawyers suspended or disbarred in other jurisdictions. 54

The Illinois state version of Model Rule 8.1 (Illinois Rule 8.1(b)) provides that a lawyer "shall not further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education or any other relevant attribute."55 Like thirty-one other states, Illinois has determined that one of its top priorities in maintaining the integrity and professionalism of the bar is to include character and fitness standards as determining factors in admission to the bar.56 With this goal in mind, Rule 708 of the Illinois Supreme Court Rules establishes the Committee on Character and Fitness. It states that the Illinois Supreme Court shall appoint selected members of the bar to serve on a Committee on Character and Fitness in each of the judicial districts of the state, and the rule requires that each candidate for admission to the bar must be "passed upon" by the Committee in his or her district as to his or her "good moral character and general fitness to practice law."57 If the Committee requires additional review of a candidate, he or she can be asked to appear before the Committee and, at that point, may furnish the Committee with his or her own evidence of good moral character and general fitness to practice law."' Similarly, Illinois Supreme Court Rule 701(a) establishes the requirement of "good moral character and general fitness to practice law" for all applicants to the bar.59 Moreover, the Preamble to the Illinois Rules of Professional Conduct states, in pertinent part, that: "Lawyers... are responsible for the character, competence and integrity of the persons whom they assist in joining the profession."60 In October, 1991, the Illinois State Bar Association Board of Governors adopted the following Policy on Human Rights which states, in relevant part that:

The Illinois State Bar Association is opposed to discrimination, intolerance, and prejudice of any kind, both within the legal profession and beyond .... The Association continues to support legislation prohibiting discrimination and commits itself to work to create and maintain an atmosphere of mutual respect and tolerance within the Association, the legal profession, and society at large, so that all persons will have a fair opportunity to attain their full potential, to live in dignity and to enjoy the equal protection of the law, free of intolerance and discrimination of any kind.61

If it is not abundantly clear by this point in the discussion, it surely will be clarified following the discussion of the Hale case in Section Two - Matthew Hale stands diametrically opposed to the professional standards articulated by the Illinois State Bar Association.

F. WHAT IS "GOOD MORAL CHARACTER" ?

Bar admissions standards now and traditionally have called for something along the lines of "good moral character" in applicants.62 In recognizing the lengthy history of the "good moral character" standard, courts have consistently upheld the requirement against due process attacks for vagueness.63 It was Justice Frankfurter who said that moral character might include such items as "qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility."64

While definitions vary by jurisdiction, several efforts have been made to arrive at a universal definition of "good moral character" and "fitness" to practice law. Following a survey of several jurisdictions, the Supreme Court of Montana offers extremely clear and intelligible definitions, as follows:

(c) "Fitness" as used in these rules is the assessment of mental and emotional health and condition as it affects the competence of a prospective attorney. The purpose of requiring an applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, courts or the profession. An applicant may be of good moral character, but may be incapacitated from proper discharge of his or her duties as an attorney by such illness or condition. The fitness required is a present fitness, and prior mental or emotional illness or conditions are relevant only so far as they indicate the existence of a present lack of fitness.

(d) "Good Moral Character" as used in these rules refers to the qualities of fairness, discreetness, honesty, reasonableness, unquestionable integrity and ability and willingness to act in accordance with the standards set forth in the Montana Rules of Professional Conduct.65

Typically, a person's "morality" can be determined using one of four tests: two general tests, and two additional alternatives. The two general tests include: (1) a reference to private moral beliefs that individuals employ in guiding their conduct; or (2) a sense of public morality embodied in norms of behavior with which society as a whole commands that all persons comply.66 Of course, neither test is free of criticism. For example, as to the first option, if the bar admission committee relied on private moral instincts and guides to determine admission, the result would in all likelihood admit hardly anyone. This would be the absurd, yet the probable result of the "private moral instinct" test would require that the committee exclude all persons whose actions or beliefs would be viewed as "immoral" by any person's moral instincts or, more narrowly, by the instincts of any significant group of persons.67

A second option to manage the issue of the ongoing evaluation of "good moral character" is to structure the bar character committee such that only those moral beliefs held by a majority of people should be imposed.68 This approach, too, comes with myriad complications and problems, including: the seemingly impossible attempt to validate one's estimate of majority views on moral issues, keeping moral tables current as views change, dealing with persons excluded or included previously (depending on changing moral climates), and in determining whether a local or wider population should define the appropriate group of testing.69

A third alternative that has been investigated avoids the necessity to obtain agreement on the direction of an individual's moral compass to determine whether or not a particular candidate was deserving of admission to the legal profession. Under this approach, a small group of evaluators would impose their own moral views on bar applicants, possibly in the form of a bar character committee that would only be in charge of assessing "good moral character" without reference to anything except their own moral beliefs.70

A fourth possibility for bar admission committees to evaluate "good moral character" would be to admit all persons whose conduct, if questioned, would be regarded as moral by any significant group of people.7' This proposed approach has been referred to as the "lowest-common-denominator" standard because such a standard would admit to law practice anyone who could defend behavior by indicating any segment of the American pluralistic society that embraces, supports or even treats as legitimate the specific behavior in question.72

"As a general matter, the objective of assuring the good moral character of lawyers is unshakably appropriate."73 Of course, the choice of a standard from among these four approaches is by no means trivial. A particular committee on character and fitness makes a choice - either broad or narrow, local or global, inclusive or exclusive, personal or universal - as to the approach that they adopt regarding character standards for admission to the legal profession. This decision fundamentally defines the nature and composition of the legal profession in terms of membership, policy and viewpoints.

G. WHEN DOES "GOOD MORAL CHARACTER" APPLY?

What is substantially less controversial than the appropriate standard by which to evaluate applicants seeking admission to the bar regarding "good moral character" is the duration of these standards once they are applied. To the question of duration, the Massachusetts Bar Statement on Lawyer Professionalism offers instructive language outlining the scope of responsibility for professionalism:

Professionalism, as defined in these principles and in accordance with other relevant standards, is the responsibility of the individual lawyer, of his or her partners, associates and lawyer affiliates outside the organization and of non-lawyer staff personnel subject to the lawyer's supervision and/or guidance. . . . A lawyer's participation in community activities and in personal business and property transactions (apart from law practice) should also be guided by these principles.TM

In short, there is no "off-switch" to professional responsibility - it clearly governs a lawyer's professional life and, at least according to the Massachusetts Bar Association, it should govern a lawyer's participation in community activities as well as personal business dealings."

Finally, various factors traditionally have served as benchmarks for assessing good moral character and fitness to practice law. Of course, in determining if an applicant is suited to practice law, states are free to establish high standards. However, the Supreme Court has been clear in insisting that a state may not arbitrarily exclude a person from the practice of law. To the contrary, there must be a rational relationship between the reason for denial of a candidate and the applicant's fitness to practice law.76 While the list is by no means complete, an inventory of traits has emerged from cases in which committees and courts evaluate the character and fitness of applicants to the bar. In terms of traits sought in applicants by committees and courts, the list includes: "a disposition to be law abiding; a sense of fairness and honor in financial dealings; an attitude of responsibility that leads the person to fulfill commitments and obligations that have been undertaken or imposed; and a regard for truth and honesty."77 On the other side of this coin, topical areas that committees and courts have focused on to justify a decision to deny admission include: financial mismanagement (both personal and professional); criminal conviction; illegal or unpopular sexual practices; lack of veracity or suspect honesty; psychological problems; and various controversial political and ideological positions."

11. PART TWO "How it infuriates a bigot, when he is forced to drug out his dark convictions."79

A. THE CASE OF MATTHEW F. HALE

With the legal foundation having been laid regarding character and fitness evaluations, it is appropriate to apply this understanding to the case of avowed racist Matthew F. Hale. This analysis will confirm the decision by the Committee on Character and Fitness of the Illinois Supreme Court to deny Hale's application for admission based on a determination that Hale lacked the requisite moral character to be an attorney in Illinois.

B. BACKGROUND FACTS AND PROCEDURAL HISTORY

Mr. Hale attended undergraduate school at Bradley University in Peoria, Illinois, and received a Juris Doctor degree in 1998 from Southern Illinois University School of Law at Carbondale.88 Mr. Hale passed the Illinois bar examination in July of 1998.81 His application was then referred to the Committee on Character and Fitness of the Third District for what is typically a pro forma process.82 The Illinois Board of Admissions to the Bar states:

Every applicant to the Illinois Bar must receive approval from the character and fitness committee before being admitted to the Illinois Bar. The general rule is that bar applicants need not receive final approval from the character and fitness committee before sitting for the Illinois bar examination. HOWEVER, there are several exceptions to the general rule. The following categories of applicants must receive approval from the character and fitness committee BEFORE they may sit for an Illinois bar examination:

* Applicants previously convicted of a felony or a misdemeanor involving moral turpitude

* Applicants against whom are now pending indictments, criminal information, or criminal complaints charging felonies or misdemeanors involving moral turpitude

* Applicants who have been denied admission in another jurisdiction on a ground related to character and fitness

* Applicants admitted to practice in another jurisdiction who have been reprimanded, censured, disciplined, suspended or disbarred in such other jurisdiction

* Applicants against whom are pending disciplinary charges or proceedings in that jurisdiction.

An applicant for the February exam must have Character and Fitness approval by the end of April to be eligible for the admissions ceremony in May. An applicant for the July exam must have character and fitness approval by the end of October to be eligible for the admissions ceremony in November.83

While the Committee on Character and Fitness probes thoroughly for suspicious, questionable or troubling aspects of a candidate's background, including "dishonesty, criminal activity, academic misconduct or financial irresponsibility,"84 in 1998, all but twenty-five of more than 3,000 applicants to the bar in Illinois were approved at the initial review stage, with the majority of license denials involving applicants who had engaged in criminal conduct.85

In October 1995, Mr. Hale became (and continues to be) the head of an organization called the World Church of the Creator, which claims to be a religious organization.86 By Hale's frank admission, he is an avowed racist who, "since his teenage days, has been actively involved in promoting white supremacy through organizations and the distribution of literature."7 This literature, now widely visible on the Internet, portrays blacks, Jews, and other minorities in an extremely negative light."" Much can be learned about Hale's beliefs by reviewing materials contained on the website of the WCOTC as well as statements that he has made, as Hale relies heavily on the WCOTC as a springboard to profess racial and discriminatory teachings.

Hale's title as head of the WCOTC is Pontifex Maximus (Latin for "Supreme Leader").89 Hale has stated that "he would dedicate his life to Creativity," referring to the WCOTC, a "completely legal religious organization"90 that, according to its founder, Ben Klassen, has as one of its major tenets the hatred of Jews, blacks, and other minorities.91 The motto of this supposed faith is Rahowa (Racial Holy War).92 The WCOTC has as its emblem the "Simulacrum Candidus."93 According to the WCOTC's membership manual:

The "W" of our emblem stands, of course, for the WHITE RACE, which we regard as the most precious treasure on the face of the earth. The Crown signifies our Aristocratic position in Nature's scheme of things, indicating that we are the ELITE. The Halo indicates that we regard our race as being UNIQUE and SACRED above all other values. 94

Two of the most telling documents include the Church of the Creator Membership Manual and a piece entitled Facts that the Government and the Media Don't Want You to Know.95 As the Anti-Defamation League notes, Hale's writings "run the gamut of anti-Semitic accusations" - including allegations that there is Jewish control of electronic media and entertainment media, Jewish control of the print media (The New York Times, The Washington Post, and the Wall Street Journal), Jewish control of the slave trade, and Jewish control of the government.96 Furthermore, Hale asserts that there is a "Kosher Food Tax," which he defined using such terms as "heist" and "consumer fraud."9' The second half of Hale's Facts that the Government and the Media Don't Want You to Know is devoted to crude racism in the form of distorted statistics and a discussion of the "biological differences between the races."98

Hale's literature includes the slogan "Delenda Est Judiacia," meaning Judaism must be destroyed.99 This is boldly pronounced in the "Third Commandment" of the WCOTC which clearly states: "inferior mud races are our deadly enemies, and the most dangerous of all is the Jewish race. It is our immediate objective to .. keep shrinking our enemies."'00 Likewise, the "Sixth Commandment" of the WCOTC instructs Hale's followers that "Your first loyalty belongs to the White Race."'O' Similarly, the "Seventh Commandment" of Hale's religion requires members to show preferential treatment in business dealings to "members of your own race" - meaning whites.12 The "Seventh Commandment" continues: "Phase out all dealings with Jews as soon as possible. Do not employ niggers or other coloreds. Have social contacts only with members of your own racial family."103

Under a section of the WCOTC Membership Manual entitled "The Essence of a Creator," followers are instructed:

V. A CREATOR realizes that both love and hate, in order to be constructive, must be directed in the proper channels and to do otherwise is destructive and suicidal;

VI. A CREATOR therefore makes a careful distinction between his loved ones and his enemies. He loves, aids, and abets those of his own race and his own kind, and hates his enemies, namely Jews, niggers, and the mud races.14

According to the Response filed with the Illinois Supreme Court on behalf of the Committee of Character and Fitness, Hale's "Commandments" and other instructions to his followers were not merely words on paper. During the panel hearing, Hale elaborated when questioned about these beliefs. The Response notes that:

Hale considered the precept "all men are created equal" an "idiotic notion" since non-white races are inferior. [He] described the average black man as intellectually inferior to the average white man. . . . According to Hale, a self-professed Anti-Semite, Jews are "morally inferior," "morally bankrupt," and "orientals," who should be driven from power and sent "back to Israel." 105

A three-member Inquiry Panel refused to certify him for admission to the Illinois Bar in February of 1999 because, in the words of the majority opinion, While Matthew Hale has not yet threatened to exterminate anyone, history tells us the extermination is sometimes not far behind when government power is held by persons of his racial views. The Bar of Illinois cannot certify someone as having good moral character and general fitness to practice law who has dedicated his life to inciting racial hatred for the purpose of implementing those views.16

Hale appealed the decision, and on April 10, 1999, he was given the opportunity to testify and present evidence before the Third District Character and Fitness Committee's five-member panel. 107 Prior to ruling that it would not certify Hale's admission,108 the Committee panel posed questions of Hale and his friends, followers, and father for nearly two hours.109 The panel's intent was unmistakably clear - it was interested in ensuring that all relevant information had been examined.

The panel was thorough and methodical in its evaluation of Hale's record. In April of 1990, while Hale was an undergraduate student at Bradley University, he attended a prayer meeting against racism held at Bradley where he distributed material bearing the swastika symbol, urging membership in the American White Supremacist Party and listing his address as a point of reference. to Later in 1990, Hale was arrested for violating a city ordinance for burning a flag, although it was pointed out by Hale and one of his witnesses that the flag was an Israeli one, arguing that this was therefore not a crime in the United States."' Likewise, Hale has been found guilty and fined fifty dollars for distributing hand bills - a conviction that he did not include on his bar application."'

The panel also called attention to an incident in May of 1991 that included Hale's brother. Hale and his brother were carrying signs and chanting white supremacist slogans near the University of Peoria, where they were later threatened in their car by a group of African-Americans.l' 13 Hale's brother used a handgun in the car to threaten the group of men and then fled the scene, leaving Hale behind.114 Hale was apprehended by a police officer, with whom he refused to cooperate, instead lying about the event. Because this incident cast doubt on Hale's truthfulness, Hale's lie was troubling to the panel.115

Furthermore, Hale's past offenses included an arrest for assault and battery (for aggressively resisting a shopping mall security officer), disciplinary probation while at Bradley University (for violating two rules of the University's student policies with respect to the registration of student organizations and the use of University facilities, as well as conduct or action that threatens the educational process or the health or safety of any member of the University community), and an appearance before the Bradley University disciplinary body on the charge that he had called a member of the community a "Jew Boy" - another item not listed on his bar application.116

Certainly one of the most disturbing aspects of Hale's file was a letter Hale wrote in 1995 to a woman who had made published statements in the Peoria Journal Star in support of affirmative action. The panel focused on the following language from Hale's letter:

Your comments appearing in the Saturday, July 22nd issue of The Journal Star were as pathetic as they were asinine. When in the hell are people of your ilk going to face the fact that the nigger race is inferior in intellectual capacity. And I underline inferior. You have examples all around you, and yet you continue to cling to the misbegotten equality myth, which is not only destroying our universities but also our whole country. Is it going to take your rape at the hands of a nigger beast or your murder before you become aware of the problem.... I'm looking forward to the day when our people's eyes are opened and when people who believe in the equality myth no longer have any power to promote this garbage to others.117

The panel paid careful attention to the portion of Hale's letter asking whether it would take the rape and murder of the woman at the hands of a "nigger beast" to change her mind. The panel concluded: "This statement shows a monumental lack of judgment. . . . This lack of judgment will surely set the applicant, if admitted to the bar, on a collision course with the Rules of Professional Conduct."' 18 The panel further faulted Hale for not attributing the letter to youth or poor judgment during the hearing." 9 In responding to questions from the panel about his choice of language, Hale asserted that he did not consider the language insulting, though stating he would not write that letter today. But Hale used this incident to make the point that "the rules of professional responsibility... don't apply to a fellow in his own house writing his own letter to somebody, to something unrelated to the law. ,120 To be sure, Hale's position on this point that the rules of professional responsibility can somehow be turned "off" or "on" - demonstrate a clear lack of understanding of and appreciation for the rules.

The committee members, likewise, asked Mr. Hale whether he could take the oath to support the United States Constitution and the Constitution of the State of Illinois in good faith. 12 Hale "unhesitatingly answered that he would have no difficulty even though, based on his beliefs, he obviously would be in substantial disagreement with current interpretations of the constitutions."122 The Committee continued its questioning of Hale on this topic, presenting him with text from Article 1, Section 20 of the Constitution of the State of Illinois which condemns "communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or religious affiliation."123 The Committee pointed out that the Illinois Rules of Professional Conduct require an attorney to deal with others in a fair manner and forbid an attorney from taking any action to harass or maliciously injure another, from engaging in conduct prejudicial to the administration of justice, or from discriminating against others. 124 The Response of the Committee to the Illinois Supreme Court notes that Hale responded to this line of questioning by stating he did not feel as if he would be acting inconsistently by concurrently abiding by the Illinois Rules of Professional Conduct, while at the same time harboring his anti-Semitic and racist beliefs. 125 The Committee described Hale's response:

'when I go to the grocery store, I buy groceries; I don't call them nigger or anything else. I buy groceries and I'm on my way', attempting to show he could still work with people of a different race, regardless of his personal beliefs. 126

In its conclusion, the five-member panel looked towards Hale's comments, actions, and teachings to buttress their decision to deny him admittance to the Illinois Bar. Recognizing the anti-discrimination rule in the Illinois Rules of Professional Conduct, the panel concluded: "It is axiomatic that an applicant who will not or cannot abide by the Rules of Professional Conduct should not be admitted to the bar."127 The opinion of the Committee included a restatement of the commitment of the bar to certain fundamental truths, noting:

* All persons are possessed of individual dignity.

* As a result, every person is to be judged on the basis of his or her own individuality and conduct, not by reference to skin color, race, ethnicity, religion or national origin.

* The enforcement and application of these timeless values to specific cases have, by history and constitutional development, been entrusted to our courts and its officers - the lawyers - a trust that lies at the heart of our system of government.

* Therefore, the guardians of that trust - the judges and lawyers, or one or more of them - cannot have as their mission in life the incitement of racial hatred in order to destroy those values.128

The opinion of the majority ended with the statement: "The bar of Illinois cannot certify someone as having good moral character and general fitness to practice law a person who has dedicated his life to inciting racial hatred."129 Matthew Hale, by virtue of his unwavering convictions and dedication to certain beliefs, could not faithfully execute the requirements of the position of a lawyer as an officer of the court. With this recognition, it was completely appropriate and, in fact, necessary - for the Committee on Character and Fitness of the Supreme Court of Illinois to deny Mr. Hale's application for admission to the bar. In so concluding, the Committee was able to reflect on a wealth of evidence to support its decision against certifying Hale, satisfying the requirement that a denial of certification not be for arbitrary reasons.130

The decision of the panel was not unanimous. As the sole dissent, panel inquiry member Baxter argued on Hale's behalf, noting that it is plausible for Hale to hold racist views and practice law in accordance with his oath of office.131 In an eerie pre-cursor to the events that followed the Committee's decision, Baxter wrote that the actions of the Committee to deny Hale certification to practice law were based on speculation that Hale would violate his oath as an officer of the court.132 Unfortunately, the cautious instincts of the majority proved correct, and Baxter had been too generous with Hale in giving him the benefit of the doubt.

C. BENJAMIN SMITH AND THE VIOLENCE OF THE WCOTC

Bigotry and hatred are corrosive elements in any society, but especially in a country as diverse and open as ours. We need to make clear that a bigoted attack on one of us diminishes each of us, and it diminishes our nation. As a nation, we must say loudly and clearly that we will defend ourselves against such violence. 133

On June 30, 1999, the Illinois Committee on Character and Fitness issued its decision to deny Hale certification to practice law. The next day, Benjamin Smith, a former member of Hale's church, went on a vicious shooting spree. Smith began his rampage in West Rogers Park in Chicago by shooting six Orthodox Jewish men after they had attended an evening synagogue service.134 He then drove to Skokie, a suburb of Chicago, where he shot and killed former Northwestern University basketball coach Ricky Byrdsong.135 Later that night, Smith traveled to another Chicago suburb, where he shot at an Asian couple in their car.136 The following day, Smith injured an African-American man in Springfield, Illinois, and an African-American minister in Decatur, Illinois.137 Later that night, Smith fired at six Asian students from the University of Illinois, in Urbana, injuring one.138 The next day, Smith shot at a group of Koreans exiting church in Bloomington, Indiana, killing a 26-year old Korean graduate student named Won-Joon Yoon, who had been studying at Indiana University.139 In total, Smith shot at twenty minorities.140 Smith stole a car, which led to a police chase ending with Smith taking his own life." Nine people were wounded in these events, all of them Orthodox Jews or African-Americans.142

Following the incident, Hale cited the acts of his character witness Benjamin Smith as "an example of what happens when people at least perceive their freedom of speech is being disrupted."143 Similarly, following the issuance of the Findings and Conclusions of the Committee and the Smith shooting rampage, Hale was quoted as saying: "If people can't speak, violence automatically results in society."'44

Even in light of the Smith rampage, Hale has consistently argued that he is opposed to violence. In a "position statement" released two weeks after the Smith rampage, Hale said:

I have always opposed violence not because I wish to lay down like a dog and die in slavery. Instead I chose non-violence as my course because (as one member put it) "trading two dead muds for one good White man is not a very good trade." 145

Smith's rampage put an end to any credibility that Hale hoped to achieve in claiming a non-violent course. The Anti-Defamation League, which had supported granting a license to Hale to practice law on free speech grounds, changed its position following the Smith shooting spree.46 In the words of ADL general counsel Harlan Loeb, "Matt Hale has lit the match and he must accept responsibility for the ensuing fire."147

Long before the Smith shooting incident, though, there existed clear indicators to suggest that Hale himself participated in acts of violence, and that the teachings of the WCOTC advocated violence. To begin with, Mr. Hale's church admires Adolph Hitler.148 Previous discussion has been made in this Note of charges of assault and battery for aggressively resisting a shopping mall security guard, as well as the incident in which Hale and his brother threatened a group of African-Americans with a handgun. Further, an article in Illinois Issues magazine describes a conflict where Hale was involved in a physical altercation with a Jewish woman in which Hale allegedly beat the woman's head against the concrete. 149 This series of incidents is presented to demonstrate a pattern of behavior. Matthew Hale's efforts to present himself or his organization as peaceful are in vain. People who manifest hatred toward others in the way that Matthew Hale does are far more likely to break the law than to have any legitimate, well-founded intention of upholding it. When Hale likened the prospect of taking the oath to support the United States Constitution and the Constitution of the State of Illinois to that of a judge or jury whose duty it is to "follow the law even though they may disagree with it," the majority of the Committee panel was able to read the true writing on the wall. 150 Consider, likewise, Hale's followers. On the website of the WCOTC, contact information is listed for WCOTC representatives in nine countries outside the United States as well as several states. Of the representatives listed throughout the United States, at least nineteen local contacts are serving time in state or federal correctional institutions.'5? Likewise, the membership manual for the WCOTC contains a lengthy section entitled "Dealing with Law Enforcement."152 Quoted excerpts from this section are listed below:

It is almost odd to have a section of this manual cover dealing with law enforcement, but since the media has promoted such lies about the racial loyalist movement and many police officers and other law enforcement officers have unwittingly been duped by these lies, it is necessary that we address this issue.

As stated in the previous section, our Church is a completely legal religious organization. This means that we will obey all constitutional laws. Naturally then, we should not expect problems with law enforcement to occur in the promotion of our religion. However, should they occur due to the misinformation campaign on the part of our enemies, we should be ready to deal with it by using our heads and sound strategy.

[Followers of the WCOTC are advised

I. Never trust police, FBI, or other agents of the JOG ["Jewish Owned Government"]. However, retain a friendly, positive, respectful, and professional attitude at all times. Do not assume a belligerent attitude for this will inspire belligerence on the part of the officer.

11. Never allow them inside your home or your car without a search warrant. Always demand to see the warrant.

IV. If under arrest, refuse to answer any questions and demand to see a lawyer. However, never trust your lawyer if he advises you to break any of these basic legal self-defense principles.

VI. Be silent, suppress the urge to tell your "side of the story."

VII. Never plead guilty and never waive any of your legal rights.

IX. Never betray your comrades or the World Church of the Creator.

X. Remember, nothing great is won without great sacrifices. Persecution and suffering are the inevitable obstacles on our path to victory. We must overcome them through dedication and perseverance. Let the great vision of a Whiter and Brighter World inspire and lead you through all trials, sufferings, and deprivations.' 53

Likewise, there is disturbing evidence of acts of violence not only by members of the WCOTC, but by the organization's leadership as well. According to a report by the Anti-Defamation League:

The event, however, that pushed the organization into the national spotlight and led to its temporary undoing was the murder of Harold Mansfield Jr., an African-American Persian Gulf War veteran, in a Neptune Beach, Florida, parking lot. George Loeb, a WCOTC Reverend with a history of racist harassment, was arrested with his wife, Barbara, on June 6, 1991, in Poughkeepsie, New York, and charged with the crime. Barbara Loeb was later sentenced to one year in jail on weapons possession charges; she served nine months of her term in a New York State prison. George Loeb was extradited to Florida where he was convicted of first-degree murder on July 29, 1992. The following month, he received a life sentence with no chance of parole for 25 years. 154

Furthermore, there is recent evidence to suggest that the followers Hale attracts are inherently supporters of violence. In a recent meeting of the WCOTC held in Wallingford, Connecticut, there was one arrest for disorderly conduct, dozens of police offers were called in to maintain the peace, and a metal detector search of all meeting attendees produced a loaded and licensed .357 Magnum handgun and "an assortment of knives."155

D. FINAL JUDICIAL APPEALS

Hale appealed his case to the Illinois Supreme Court, which entered a summary order denying Hale's petition to review the earlier Character and Fitness Committee decision denying his certification to the Bar and rejecting his request for an oral argument. 156 At this point in the proceedings, Hale had exhausted all legal options that could have potentially entitled him to practice law in Illinois absent federal intervention. 157 There was a dissent to the Illinois Supreme Court's summary order by Justice James Dee Heiple. 158 The dissenting justice believed that the case presented significant constitutional issues worthy of judicial review. He noted:

The question also arises: If all of petitioner's statements identified by the Committee had been made after obtaining a license to practice law, would he then be subject to disbarment? That is to say, is there one standard for admission to practice and a different standard for continuing to practice? And, if the standard is the same, can already-licensed lawyers be disbarred for obnoxious speech?159

Hale then appealed to the United States Supreme Court, which denied his petition for writ of certiorari from the order of the Supreme Court of Illinois denying his petition for admission to the bar.16 Consequently, the avowed racist will not be entitled to practice law in Illinois.161 According to reports published in the summer of 2000, however, Hale may have his sights set on admission in another jurisdiction. "There's a possibility I'll be moving to Montana," Hale said. 162 "I'm looking at other states that have more of a 1st Amendment way of looking at things."163

E. CONCLUDING REMARKS ON THE CASE OF MATTHEW F. HALE

Were the decisions of the Committee on Character and Fitness, the Illinois Supreme Court and the United States Supreme Court justified? Were they well-founded? A majority (and, in some cases, a unanimity) of four, separate reviewing bodies thought they were. It is interesting to note how much attention the case of Matthew Hale has received. Most racists and anti-Semites do not attract as much media attention and public interest as has Mr. Hale. Then again, most racists and anti-Semites do not seek a law license. Certainly, the Hale case comes with legitimate controversy. Perhaps the most obvious and oft-cited controversy focuses on Hale's First Amendment rights.

1. THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.164

In its opinion, the Committee on Character and Fitness for the Third Appellate District of the Supreme Court of Illinois compares absolute protection of First Amendment rights versus a balancing test approach, whereby, in certain instances, competing values are found to trump the weight and effect of the First Amendment. 165 The discussion begins by recognizing that it would be the "easiest resolution" to the Hale debate to simply certify his application on First Amendment grounds, recalling the bar admission case of In Re Stolar, 401 U.S. 23, 28-29 (1971), in which the Supreme Court stated that the State cannot "penalize petitioner solely because he personally. . . `espouses illegal aims.' ,,166 Similarly, the Committee reviewing Hale's case cited Baird v. Arizona, decided in 1971, the year of the most recent Supreme Court decision relating to bar admissions.167 In Baird, the Court, in a five-to-four split decision, stated that "[t]he First Amendment's protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs."16" The Committee was conscious and cognizant of the First Amendment issues implicated.

Coming to Hale's support on First Amendment grounds were Illinois Supreme Court Justice James Heiple and Northwestern University Law School professor Steven Lubet. In his dissent filed on November 17, 1999, Justice Heiple argued that the "issues presented by Mr. Hale's petition are of such significant magnitude that they deserve a judicial review and determination by this court.,,169 Heiple takes issue with the conclusion of the Committee that "[t]his case is not about Mr. Hale's First Amendment rights."17 To the contrary, Heiple claims that Hale's case "clearly impacts both the [F]first [A]mendment to the federal Constitution and [A]rticle I, section 4, of the Illinois Constitution."171

Professor Steven Lubet agrees. In an editorial published shortly following the Benjamin Smith rampage, Lubet writes:

If Hale had anything to do with Smith's bloody attacks, he should be indicted and jailed, never mind whether he should practice law.

But if it turns out Hale had no direct connection to Smith's crimes, then, distasteful as it may be, he should not be denied a law license simply on the basis of his loathsome views. While every decent human impulse urges us to squelch Matt Hale in every possible way, we are ultimately better served by reaffirming the 1 st Amendment and reluctantly seeing him admitted to the bar. Racist ideas are ideas nonetheless, and once we begin penalizing people for their opinions it is impossible to predict where the process will stop. 172

While I understand the positions presented by both Justice Heiple and Professor Lubet, I must respectfully disagree with the conclusions reached by both of them. While the Smith shooting spree is deeply troubling, and I am able to assign principal-agent liability to Hale for the deaths and injuries caused by Smith, I would not deny Hale admission based solely on the Smith incident. 173 Rather, I would focus on the totality of the circumstances - Hale's beliefs, his record of violence, various lies, and concealment of material information. Clearly, the fact that Hale had Benjamin Smith testify on his behalf as a character witness, paired with Smith's subsequent shooting spree, does not help Hale's cause.

In the end, I agree with the conclusion reached by the Committee in Hale's case when it wrote:

Commencing with Jefferson's ringing declaration that all men are created equal, and continuing with the adoption of our Constitution, the Emancipation Proclamation and the Fourteenth Amendment, the moral, ethical and legal struggle for the precious values contained in those writings has been costly, difficult and long. The Bar and our courts, charged with the duty of preserving those values, cannot allow Mr. Hale or any other applicant the use of a law license to attempt their destruction.

Finally, and this is the heart of our analysis, the majority's judgment is that to the extent its decision limits the First Amendment activities of lawyers, the fundamental truths identified above are so basic to the legal profession that, in the context of this case, they must be preferred over the values found in the First Amendment. 174

According to Illinois Supreme Court Rules 708 and 709, Matthew Hale was required to establish "good moral character and general fitness to practice law" "by clear and convincing evidence."175 His core beliefs make that task unachievable.176 Therefore, the Illinois Supreme Court was left with no alternative other than to deny Hale's application for admission.

2. ECONOMIC EFFICIENCY

In addition to those arguing on behalf of the First Amendment, to a lesser degree, there are also those who assert that Hale should (or could) be admitted on the basis of an economic efficiency/market efficiency theory. Under this line of thinking, the marketplace would ferret Hale out, leaving him largely ostracized by the mainstream legal profession and its clientele.

As a practical matter, the economic efficiency argument quite possibly has some merit. For one thing, Hale's following is too small to pose any significant risk to the legal profession. 177 Regardless of the accurate figure as to membership, though, the real issue at hand is the message being sent. The risks associated with Hale's admission-risks to "all the interests of man that are comprised under the constitutional guarantees given to `life, liberty and property' [that] are in the professional keeping of lawyers" - are too precious to jeopardize.178 Admitting Hale to the bar and enabling him to practice law would send the message that his viewpoints and opinions are acceptable and are endorsed by the legal profession. Such a statement places those beliefs most basic to the American ethical fabric in jeopardy.

In the case of Matthew Hale, the fundamental truths of individual dignity, and the timeless value of judging people on the basis of individuality and conduct must be preferred over both the values found in the First Amendment as well as the efficiencies of the marketplace. 179

3. Is HALE MENTALLY ComPETENT? EXTREME RACISM AS MENTAL ILLNESS

Finally, a word about Hale's overall competency to practice law, implicating Model Rule 1.1.180 In the aftermath of a racially-motivated rampage similar to that of Benjamin Smith's, Alvin F. Poussaint, a professor of psychiatry at the Harvard Medical School and an active clinical practitioner, published an op-ed article in The New York Times. 181 In his piece, Doctor Poussaint argues that "[e]xtreme racism is a serious mental illness," and notes that one who believes that "non-whites and Jews are responsible for the world's troubles and must be eliminated . . . meets the criteria for delusional disorder."182 To further support the position held by Dr. Poussaint, The Sacramento Bee reported "[fln a courtroom filled with sobbing victims, White supremacist Buford 0. Furrow apologized and blamed mental illness for the 1999 shooting spree in which he killed a postal worker and wounded five people."183

Applying this to Hale's case, it is at least arguable that Hale suffers from mental illness, thereby making him unfit to practice law based on the standards set forth in Model Rule 1.1.

111. PART THREE: ToUGHER CASES

By many standards, the case of Matthew Hale is an easy case. One could argue that Matthew Hale is nothing more than a straw-man - the prototypical example of the underpinnings to the character and fitness review process. Mr. Hale is a veritable "poster child" for the clear and convincing need for such ethical standards for admission. Without such a test, maniacs and psychopaths might be granted a law license. The case of Matthew Hale reminds us of that important point and that the legal profession must be vigilant in protecting against such an occurrence.

Other cases, however, have proven more difficult to reconcile. What follows is a brief survey of two cases that constitute "closer calls" than the case of Matthew Hale. They are offered to illustrate the wide-ranging analysis in which courts engage in rendering a judgment regarding character and fitness to practice law.

A. IN RE HARVEY PRAGER

The case of Harvey Prager involved the standard of rehabilitation of a convicted felon required to establish the necessary "good moral character" for admission to the Massachusetts bar.184 A summa cum laude graduate of Bowdoin College and a member of Phi Beta Kappa, Prager attended Harvard University as a graduate student from 1971 to 1972, during which time he began smoking marijuana regularly. 185 Prager claimed that this lifestyle led him into the illegal sale and distribution of marijuana.186 Over a period of approximately six years, Prager organized and led a large-scale international drug smuggling operation.187 In 1983, Prager was indicted by a federal grand jury in Maine, and then fled the United States, living as a fugitive until he was extradited from Great Britain in 1987.188 In 1988, Prager was convicted of federal felonies relating to the smuggling of large quantities of marijuana into the United States.189

Prager received a suspended sentence with probation for five years."90 The terms of the sentence, which Prager helped to negotiate, contained special conditions of probation, including the requirement that Prager "volunteer a minimum of forty-five hours each week toward assisting those with acquired immune deficiency syndrome (AIDS), and to create and maintain a free-standing hospice unit for persons in the terminal stages of AIDS."' 9'

In 1991, after Prager had sought and received permission from federal court, he applied to and was admitted to the University of Maine School of Law.'92 During law school, Prager was named to the dean's list, was selected as a staff member on the Law Review, and worked for the Cumberland Legal Aid Clinic.193 Prager graduated summa cum laude from law school in 1994, at which point he began a judicial clerkship for Justice Howard H. Dana, Jr. of the Maine Supreme Court.'94

Prager's probationary period ended on October 10, 1993, and he applied for admission to the Massachusetts bar in June of 1994.195 Prager passed the written examination, and the character and fitness board recommended his admission, reporting that "Prager has so rehabilitated himself since the time of his criminal activities thirteen years ago that he is of present good moral character." 196

The Supreme Judicial Court of Massachusetts, however, denied Prager's application, adding the caveat that he could reapply in five years. 197 In their analysis, the court recognized that "[t]he primary purpose of character and fitness screening before admission to the bar is the protection of the public and the system of justice."'98 The court analyzed distinctions between applicants to the bar and attorneys seeking reinstatement after disbarment. Regarding reinstatement following disbarment, the court considered five critical factors in evaluating whether it is proper for a court to hold a person out as being trustworthy:

(1) the nature of the original offense for which the petitioner was disbarred; (2) the petitioner's character, maturity, and experience at the time of his disbarment, (3) the petitioner's occupations and conduct in the time since his disbarment; (4) the time elapsed since the disbarment; and (5) the petitioner's present competence in legal skills.' 99

The court applied comparable standards by which to evaluate the character and fitness of an applicant to the bar. In so doing, the court noted that a prior conviction is not an absolute bar to admission, as "no offense is so grave to preclude a showing of present moral fitness."" In focusing on the extent of rehabilitation of the candidate, a court looks for evidence of good moral character at the time of application to the bar whereby the applicant has so rehabilitated himself by "leading a sufficiently exemplary life to inspire public confidence once again, in spite of his previous actions."201 In reaching its conclusion regarding Prager, the court was "not surprised that Prager would carry out his functions [in working with AIDS patients] in a diligent manner, [and] with the utmost respect and care for his patients. This is precisely what was required of him by his sentence."222 The Court held that Prager, simply by fulfilling the requirements of his sentence, did not fulfill the requirement of positive action sufficient to demonstrate rehabilitation.23

B. IN RE APPLICATION OF ROGER L. ROOTS

Roger Roots graduated from the Roger Williams University School of Law in 1999 and passed the Rhode Island bar examination.204 The Rhode Island Supreme Court's Committee on Character and Fitness reviewed his record, interviewed him, and voted five in favor of his admission and two opposed.25 In a unanimous decision, however, the Rhode Island Supreme Court focused on three major areas of concern in supporting its decision to deny Roots's application for admission: (1) his criminal record; (2) his candor and veracity; and (3) his ability to take and abide by the attorney's oath.26

When Roots was eighteen years old, he was charged with and convicted of shoplifting in Florida.207 Furthermore, Roots stated in his bar application that, following his arrest for this crime, he "failed to appear at his scheduled hearing on the matter."208

As to Roots's lack of candor and truthfulness, he was not truthful in applying for the purchase of firearms.209 Moreover, Roots was not truthful in answering a question on the bar application about the use of aliases, which Roots asserted were used for the purpose of attending school, writing, and telephone fundraising. 210

Finally, regarding Roots's inability to abide by the attorney's oath, the court noted that Roots had published a number of articles that "express explicit racial and ethnic bias as well as contempt and disdain for the federal government as a `Zionist Occupation Government.' "211 The court recognized that the United States Supreme Court has stated that "citizens have a right under our constitutional system to criticize government officials and agencies."212 With this recognition, though, recent publications and comments made by Roots disavowing the legitimacy of the federal government, especially in light of his criminal record and history of other misconduct, gave the court "pause in accepting his avowal to us that he can now in good faith take and abide by the requisite attorney's oath."213

The court called attention to Article II, Rule 8 of the Rhode Island Supreme Court Rules which states that

[e]very person who is admitted as attorney and counselor at law shall take in open court the following engagement: `You solemnly swear that in the exercise of the office of attorney and counselor you will do no falsehood, nor consent to any being done; ... you will in all respects demean yourself as an attorney and counselor of this court and of all other courts before which you may practice uprightly and according to law, with fidelity as well to the court as to your client; and that you will support the constitution and laws of this state and the constitution and laws of the United States.,214

Further, the court noted Article II, Rule 3(f) of the Rhode Island Supreme Court Rules, stating "[a]ny person who seeks to practice law in the State of Rhode Island shall at all times have the burden of proving his or her good moral character before the Committee on Character and Fitness and the Supreme Court of Rhode Island."215 Confirming the standard of review in such a case, the Roots court acknowledged that it would not overturn a recommendation of the Committee on Character and Fitness unless it had "abused its discretion or its decision was clearly wrong."216 In so noting, it is clear that great discretion is afforded the judgment of the Committee on Character and Fitness and that actions to reverse those decisions are only taken in extreme instances.

Despite Roots' protests to the contrary, the court concluded that the applicant was incapable of taking the requisite attorney's oath in good faith in view of several published essays in which he had recently attacked the legitimacy of the federal government and suggested that African-Americans were inherently inferior to whites.217 While the court acknowledged that the First Amendment inhibits both the character and fitness committee and the court from denying bar membership to a candidate on the basis of "unorthodox" political beliefs, the court did state that such beliefs "may be relevant" when assessing whether a candidate is capable of professing sincerely and in good faith a willingness to take and abide by the attorney's oath.218 The court was clear in its conclusion, reasoning that the applicant's dishonesty, deceptive statements on his bar application form, and past criminal misconduct were inconsistent with the character and fitness requirements. Interestingly, however, the court left open the possibility that Roots could be admitted after a two-year hiatus, provided that he proved rehabilitation.

CONCLUSION

This Note began by posing two questions: first, why does the legal profession maintain the requirement of "good moral character" for admission to the bar? Second, what are these qualifications of learning and moral character?

There are other questions of vital importance that need to be asked. For example, are the standards currently in place to judge character and fitness appropriate? If not, what changes could or should be made to evaluate good moral character and general fitness to practice law? Overall, what is the current state of "good moral character" in the American legal system?

Suggestions have been made, for example, to create a uniform national standard to govern the good character requirement.219 Such a system creates a greater likelihood of consistent, predictable and uniform determinations of the character and fitness of applicants to the bar. Such recommendations are valuable and should be afforded additional study to determine their feasibility and methods for implementation.

However, the mere suggestion of a uniform national standard to govern the good moral character requirement is but a first step - standing alone, it does not go far enough. A proposal for a national standard to interpret and apply character and fitness standards requires additional definition and detail so as to achieve consistent interpretation and enforcement. Without such definition, applicants to the bar, bar admission examiners, judges, and the entire legal profession are left to wonder, for example, why Hale was denied admission outright, Prager was denied admission with the opportunity to reapply following five years, and Roots was denied admission with the opportunity to reapply after only two years. Is a vocal racist worse than a large-scale drug smuggler? If so, how? Likewise, is someone who calls for the overthrow of the government, believes that one race is inherently inferior to another, and was untruthful in an application to purchase firearms more deserving of a license to practice law than someone who was previously convicted on drug smuggling, though a summa cum laude graduate, a member of Phi Beta Kappa, a member of law review, a judicial clerk, and who worked for legal aid as well as with AIDS patients? Evidence of rehabilitation of the applicant - or, in some cases, arguments supporting that an opportunity be made to prove rehabilitation - is only a component of the equation. Rehabilitation is a necessary element, but alone it is not sufficient to respond fully to the issue of the proper standards for admission as they relate to character and fitness.

One answer might be to grant additional authority and responsibility to the American Bar Association, or a comparable organization with broad-based membership and support, to set substantive governing standards. Those in charge of this project could rely, for example, on the Federal Sentencing Guidelines to establish distinctions in grades of offense, thresholds for a determination of admission or denial, as well as the appropriate duration of a waiting period prior to reapplication for admission. This "grading" system could add some muchneeded clarity to justify the inconsistent decisions discussed above.22

This Note has sought to provide the reader with a close look at the "good moral character" requirement standard and process. The evaluation and analysis of the case of Matthew Hale-as well as those involving Prager and Roots-have been presented to raise related and relevant issues on the topic of good moral character. As discussed throughout this Note, it is difficult to arrive at a clear and consistent definitional standard for "good character." What can be agreed upon, though, is that whichever of the competing definitions is used, Matthew Hale fails to meet the standard.

It is interesting to note that, regarding standards for admission to the bar, a subject that clearly carries with it such gravity and import, relatively little has been written. This is a curious fact, indeed, as the standards employed to determine admission to the bar, by definition, will determine the nature and composition of the legal profession. More generally, such standards will define the enforcement of law and administration of justice.

The introductory note to the Restatement (Third) of the Law Governing Lawyers recognizes the vital importance of admission standards, observing:

[i]n general, a jurisdiction's requirements for admission and for renewal of a license to practice law are best designed when directed primarily toward protecting prospective clients and the legal system against incompetent practitioners or those whose professional acts would predictably cause harm to clients, the legal system, or the public.221

In establishing the standards for admission to the bar, the Restatement notes:

In order to become a lawyer and qualify to practice law in a jurisdiction of admission, a prospective lawyer must comply with requirements of the jurisdiction relating to such matters as education, other demonstration of competence such as success in a bar examination, and character.

Admission to practice and maintenance of a license to practice law in a condition of good standing authorizes a lawyer to perform all functions of other lawyers so admitted, both in the law office and in all of the courts of the state.222

The Restatement underscores the fact that a license to practice law confers great power on lawyers - enabling lawyers to help as well as to harm. After all, in the course of law enforcement, lawyers and judges have the authority to place severe limitations on a person's liberty, and in extreme cases, the authority of judicial members of the bar can take a life. On a more routine, though in no way insignificant level, lawyers enforce contracts, act as fiduciaries, and can compel or enjoin certain behavior. With such important rights and responsibilities, it is essential to preface the grant of a law license with a character and fitness examination. What is widely agreed upon, though, is that much work remains to clearly define appropriate standards for good moral character and fitness to practice law. A uniform national standard very well could be an important step in the process of achieving consistent evaluations and an even-handed application of the agreed upon definitions.

1. David Person, Matthew Hale: Racist and Proud ofIt, available at http://www.al.com/columnists/huntsville! dperson/09172000-e28026.html (last visited Mar. 6, 2002).

2. Id

3. Id. Hale made these comments at a Newsweek/MSNBC town hall meeting on race relations entitled "Shades of Progress ... Shadows of Hate," an event he was invited to attend, along with such figures as the Reverend Al Sharpton. (MSNBC television broadcast, Sept. 12, 2000); see also Person, supra note 1.

4. These were the comments of U.S. District Judge Bernard Friedman in ruling that the use of race in admissions at the University of Michigan Law School was unconstitutional. See Grutter v. Bollinger, 137 F Supp. 2d 821 (E.D. Mich. Mar. 27, 2001). Judge Friedman stated that the law school's goal of achieving a racially diverse student body is not a compelling state interest- and even if it were, the school has not narrowly tailored its use of race to achieve that goal. "Whatever solution the law school elects to pursue, it must be race-neutral," stated Judge Friedman. "The focus must be upon the merit of individual applicants, not upon characteristics of racial groups," he continued. Id.

5. These and other organizations are devoted to the promotion of human and civil rights. Interestingly, one comparable organization, a web page called Hate Watch, recently ceased its operations, going "off line" in January 2001. Hate Watch existed for six years, and was dedicated to monitoring online hate groups, educating the online community about bigotry on the Internet, and providing tools for combating it. See http:// www.hatewatch.org (providing more information about Hate Watch and similar organizations) (on file with Georgetown Journal of Legal Ethics).

6. See GEOFFREY C. HAZARD, JR., SUSAN P. KONIAK & ROGER C. CRAMPTON, THE LAW AND ETHICS OF LAWYERING 883 (3d ed. 1999). In the conclusion to the analysis by the Committee on Character and Fitness for the Third Appellate District of the Supreme Court of Illinois, Judge McClintock's opinion reads:

If the civilized world had no experience with Hitler, Matthew Hale might be dismissed as a harmless `crackpot.' However, history teaches us a different lesson. . . . While Matthew Hale has not yet threatened to exterminate anyone, history tells us that extermination is sometimes not far behind when governmental power is held by persons of his racial views.

Id.

7. The Multistate Professional Responsibility Exam (MPRE) is an additional requirement for bar admission in the vast majority of American jurisdictions. The MPRE is required for admission to the bar in all but three jurisdictions, although passing scores vary widely throughout jurisdictions. Additional information regarding the MPRE is available at the website of the National Conference of Bar Examiners. See National Conference of Bar Examiners, available at http://www.ncbex.org/tests.htm.

8. "In most states, initial admission to practice as a lawyer results from successful completion of a process of college and legal education, bar examination, submission of a bar application with supporting indications of compliance with the state's requirements, including good moral character, and scrutiny by a committee on admission. Formal admission to practice customarily takes the form in most states of a swearing-in ceremony before the state's highest court." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, 1.2.A., Introductory Note (2000) [hereinafter RESTATEMENT].

9. The First Amendment states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof- or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CoNsT. amend 1.

10. First Amendment issues often involve a balancing test with competing values, such as national security or public health, welfare and safety. The application of a balancing test in the First Amendment arena stands opposed to absolute First Amendment rights. For example, the most common explanation of this principle is that an individual who screamed "Fire!" in a crowded theater or talked about killing the President while touring the

White House would clearly not be able to hide behind the protections of the First Amendment to escape liability. See, e.g., Schenck v. United States, 249 U.S. 47 (1919). Furthermore, and more directly relevant to Mr. Hale's case, in no way does the Constitution guarantee the right to practice law. See infra text accompanying note 15.

11. The Hale decision was relatively clear-cut, although the decision of the Supreme Court of Illinois was not unanimous. Illinois Supreme Court Justice James Heiple dissented. See Douglas Lee, Illinois Justice Goes Out on a Limb for First Amendment, Matthew Hale, at http://www.freedomforum.org/speech/1999/12/61ee.asp (last visited Apr. 16, 2001).

12. In re Harvey.Prager, 661 N.E.2d 84, 95 (Mass. 1996) (quoting Matter of Keenan, 50 N.E.2d 785 (Mass. 1943)).

13. Baird v. State Bar of Ariz., 401 U.S. 1, 13 (1971); Marcus Ratcliff, The Good Character Requirement: A Proposal for A Uniform National Standard, 36 TuLsA L.J. 487, 487 (2000).

14. See RESTATEMENT, supra note 8, at Introductory Note to Chapter 1, Topic Two, Title A. Comparable interests and standards regarding the health and overall fitness to practice exist in several other professions, with the medical profession serving as one of the most frequently cited examples. For example, New Jersey has compiled the Guide to Statutes and Regulations, State Board of Medical Examiners Statutes, available at http://www.state.nj.us/lps/ca/rule.pdf (last visited Mar. 5, 2002). These statutes govern, for example, license requirements to practice medicine or surgery ( 45:9-6), annual registration fees ( 45:9-6.1), and additional educational requirements ( 45:9-7). To the question of education, applicants to practice medicine are required to have graduated from a recognized medical college ( 45:9-8.1), not unlike an ABA-certified law school. Comparable to the bar examination, there are national medical boards, detailed in 45:9-12 and 45:9-13. Section 45:9-16, entitled "Refusal to grant, suspension or revocation of license, or registration of certificate or diploma; grounds; procedure; relicense," is the analogous section to Rule 8.1 of the ABA's Model Rules of Professional Conduct (as well as disciplinary regulation after admission covered in ABA Model Rule 8.4) found in the legal profession. The analogous regulations in the medical profession governing admission, suspension or revocation of a license are numerous, and include the following examples: "preponderance of the credible evidence that the holder of such license (a) has been adjudicated insane, or (b) has demonstrated any physical, mental or emotional condition or drug or alcohol use which impairs his ability to practice with reasonable skill or safety, or (c) has practiced criminal abortion, . . . or has been convicted of crime involving moral turpitude . . . , or (e) knowingly becomes employed by any physician, surgeon, homeopath, eclectic, osteopath, or doctor who advertises... or (h) has been guilty of gross malpractice or gross neglect in the practice of medicine which has endangered the health or life of any person, or (i) has been demonstrated professionally incompetent to practice medicine ." Additionally, subsection J establishes strict guidelines regarding the use of advertising in the medical profession.

15. See Baird v. State Bar of Ariz., 401 U.S. at 13. 16. See HARD, supra note 6, at 869.

17. See id. at 870. The "good character" standard is also regularly referred to as the "good moral character" standard.

18. The troubling aspect in arriving at a clear definition of the "good moral character" standard is that all aspects of an applicant's past conduct (as well as, in some cases, propensities to act) are subject to review and scrutiny. This approach to evaluating one's moral character stresses that the totality of an applicant's past conduct reflects on an applicant's honesty and integrity. An applicant's criminal conduct and other acts constituting moral turpitude (including, for example, fraud and concealment of past conduct) are grounds for the denial of an applicant's application for admission to the bar. Interestingly, the committee on character and fitness may consider any conduct or charges against the applicant - including charges on which the applicant was acquitted as well as any litigation to which the applicant was a party. By the same token, in some cases, evidence of the applicant's rehabilitation will be considered. It is relevant to note that an applicant's mere membership in an organization such as the Communist Party (absent an indication that an applicant advocated the violent

overthrow of the government) has been shown to be insufficient to demonstrate lack of moral character. See Ruth Bader Ginsburg, Supreme Court Discourse on the Good Behavior of Lawyers: Leeway Within Limits, 44 DRAKE L. REv 183, 189 n.28 (1996).

19. See HAzARD, supra note 6, at 870. 20. Id.

21. Prior to earning a law degree, all aspiring American lawyers must apply to law school. Depending on the application requirements of the particular law school, the applicant will be required to respond to a variety of questions that evaluate certain portions of the individual's character. There is a relatively wide range of required questions throughout law school applications - ranging from a few questions to several. For example, on the application for admission to the Southern Illinois University School of Law, the law school from which Matthew Hale received his law degree, Section VII of the application requires the applicant to respond to several questions regarding Academic and other misconduct:

(1) Have you ever been reprimanded, placed on probation, disciplined, suspended, sanctioned or dismissed from any college, university, professional organization or licensing agency for any reason?...

(2) Have you ever, as an adult or as a minor, been arrested for, charged with, plead guilty to, been convicted of or adjudicated guilty of... any violation of any criminal or military law? ...

Have you ever, as an adult or as a minor, been convicted of, pled guilty to, been adjudicated guilty of or paid any fines or penalties as a result of: any violation of any law, ordinance, or military law dealing with driving under the influence of drugs or alcohol, the use of force or physical violence against another person, or theft, fraud, deceit or misrepresentation? ...

(3) Have you ever been accused or charged in a court-martial proceeding or received a less than honorable discharge from any branch of the armed services of the United States of America? ...

See Southern Illinois University School of Law, Application for Admission 2002, available at http:// www.law.siu.edu/admissions/app-form.pdf (last visited Mar. 6, 2002).

The topic of admission to the bar is inextricably linked to the topic of admission to law school; without admission to law school, it is impossible to be admitted eventually to the bar. This, then, raises the related topic of calling for a fundamental overhaul of the law school admission process - requiring, for example, interviews of law school applicants. Treating law schools as professional schools, the argument could be made that it is a gross injustice to admit to law school an applicant of controversial character and fitness to practice law if this candidate will only be rejected by a character and fitness committee after having gone through law school. See HAZARD, supra note 6, at 877 n.18 (discussing the intrusive nature of questioning in the bar admissions process).

22. Note, however, that one caveat to the statement that there is no "middle ground" to successful completion of the Juris Doctor (J.D.) curriculum is the question of whether or not the applicant has graduated from a law school accredited by the American Bar Association. There were 183 ABA-approved J.D.-granting law schools in 1999. See HAZARD, supra note 6, at 870-71.

23. These comments, however, should not be interpreted to assert that the law school education system or that state bar examinations are free from critics. To the contrary, vigorous criticisms have been levied against the general subjectivity found in law school and the bar examination. State bar exams have encountered legal challenges dealing with allegations of subjective exam grading producing arbitrary results. Additionally, vocal advocates assert that bar exam results are systematically adverse to African-Americans, Hispanic-Americans and other racial minorities. In the 1930's, claims were made in several states alleging that the general "fail" rate on the bar exam has been raised in order to restrain competitive entry into the legal profession. Similar claims arose in California in the 1950's and in Arizona in the 1970's. See, e.g., Hoover v. Ronwin, 466 U.S. 558 (1984) (rejecting contention that Arizona's bar admissions committee had reduced the pass rate to restrain competition); see also HAZARD, supra note 6, at 872. However, for all their shortcomings, both the law school educational systems and state bar examinations are less fraught with allegations of subjectivity and unpredictability than is the character and fitness evaluation.

24. HAZARD, supra note 6, at 870. 25. Id. at 871.

26. See Roger C. Cramton & Susan P. Koniak, Rule, Story, and Commitment in the Teaching of Legal Ethics, 38 Wm. & MARY L. REV. 145, 148 (1996).

27. Several states recognize a "diploma privilege," whereby graduation from a law school in the state fulfills the requirement of legal knowledge. Under such programs, the bar examination is not required. Similarly, in response to arguments that the bar examinations are plagued by subjective grading and are systematically adverse to racial minorities, a number of ideas have been discussed as alternatives to the bar examination. These ideas include an interview system (placing significant emphasis on personal identity of the applicant), an apprenticeship system (where graduates of law school would be mentored by practicing attorneys), or, perhaps most radical of all, the suggestion that there be no qualification test at all. See HAZARD, supra note 6, at 872.

28. RESTATEMENT, supra note 8, at 2, cmt. d.

29. This position presents the "floodgate argument" regarding standards for admission to practice law holding that it requires more effort administratively to disbar a licensed attorney than to deny the application of a candidate before the bar. Put simply, it is easier to keep applicants lacking in moral character out of the profession than to remove licensed attorneys who have committed violations of professional conduct.

30. RESTATEMENT, supra note 8, 2, cmt. d.

31. Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L. 1491, 496 (1985).

32. U 493.

33, Id Th"Wb, of comm. hoe fact n-bow red as the twA of orovi u pp;am to the bar swh arch Warning! OCR inputs differ greatly 34,. lick tic 496. Warning! OCR inputs differ greatly 35. lit

36. Leaders: Tort on Stilts, THE ECONOMIST, Mar. 24, 2001, at 23. 37. Rhode, supra note 31, at 496-97.

38. Clearly, with the hundreds and thousands of cases each year of attorney discipline, the character and fitness examination is by no means a flawless tool to predict who is of "good character." Furthermore, there exists no guarantee that the prediction will necessarily be accurate for the length of an attorney's career. However, because character and fitness committees deny applicants in so few instances, reserving this measure only for extreme cases, it is reasonable to conclude that the character and fitness evaluation is a solid test to identify applicants lacking requisite "good moral character" at the time of application for admission. This component of the self-policing policy in the legal profession is vitally important to preserving and enhancing the integrity of the profession.

39. Nearly every state requires bar applicants to meet specified standards for "character in fitness." See, e.g., N.Y. COMP. CODES R. & REGS., tit. 22, 602.1(b) (1988) (providing that "[e]very completed application shall be referred for investigation of the applicant's character and fitness to a committee on character and fitness. . ."). In Illinois, the state in which Matthew Hale applied to practice law, 22 of the Illinois Attorney Act provides that no person shall be entitled to receive a law license "until he shall have obtained a certificate of good moral character from a circuit court." 705 ILL. COMP. STAT. ANN. 205/2 (West 1999). Interestingly, neither New York nor Illinois has adopted written standards defining good character. See STEPHEN GILLERS & RoY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 414 (2000).

40. Likewise, in addition to the "good character" required at the time of bar admission, such standards are upheld and enforced throughout an attorney's career - as demonstrated by myriad attorney discipline cases.

41. MARTIN LUTHER KING, JR., I HAVE A DREAM: WRITINGS AND SPEECHES THAT CHANGED THE WORLD 85

(James Melvin Washington ed. 1992).

42. ILL. SUP. CT. R. 701(a) (1993); see also the amicus brief of the Illinois State Bar Association (ISBA) filed in the matter of The Application for Admission to the Bar of Matthew F. Hale, available at http:// www.illinoisbar.org/amicus2.htm [hereinafter ISBA Amicus Brief].

43. The theoretical approach, which emphasizes the lawyer's role as an officer of the court, is often referred to as the regulatory approach. Under this model, a lawyer is responsible for facilitating informed resolution of substantive legal issues by the officers of the court. In this regard, the regulatory approach prioritizes substance

over procedure. See William H. Simon, Ethical Discretion in Lawyering, 101 HARv. L. REv. 1083, 1083-86 (1988).

44. See Hale, Committee on Character and Fitness for the Third Appellate District of the Supreme Court of Illinois, n.10 (1998), reprinted in HAZARD, supra note 6, at 881. The Preamble later refers to lawyers as "officers of the court." Id. Both of these concepts - those of public trust and officers of the court - appear in numerous Illinois Supreme Court cases. See, e.g., People v. Payson, 74 N.E. 383 (111. 1905); In re Both, 33 N.E.2d 213 (Ill. 1941).

45. Massachusetts Bar Association Statement on Lawyer Professionalism, available at http://www.law. Stetson.edu/excellence/litethics.massbar.htm (last visited Mar. 6, 2002). These are only minimum acceptable standards.

46. Id.

47. Id. Similarly, subsection 3 to section 5 of the Restatement of the Law Governing Lawyers states that "A lawyer who knows of another lawyer's violation of applicable rules of professional conduct raising a substantial question of the lawyer's honesty or trustworthiness or the lawyer's fitness as a lawyer in some other respect must report that information to appropriate disciplinary authorities." See also RESTATEMENT, supra note 8, at 5 cmt. b (discussing generally the grounds for lawyer discipline). In this comment, it is clear that an attorney must be vigilant to maintain the traditional standard measuring the propriety of lawyer's conduct - this standard demands that the attorney avoid "conduct unbecoming a lawyer." Id.

48. RESTATEmENT, supra note 8, at Introductory Note to Chapter 1, Topic 2, Title A. 49. Id.

50. Id. at 2 (2000).

51. GILLERS & SIMON, REGULATION OF LAwYERs, supra note 39, at 412-14.

52. See RONALD D. ROTUNDA, LEGAL ETHics: THE LAWYER'S DESKBOOK ON PROFESSIONAL RESPONSIBILITY, Chapter 52, Rule 8.1 Bar Admission and Disciplinary Matters, 707 (2000). See also MODEL RULES OF PROFESSIONAL CoNDucr Rule 8.1 [hereinafter MODEL RULES].

53. For example, the State of Connecticut requires that applicants to the bar submit reference letters. This process requires applicants to have three individuals familiar with the applicant's character complete and submit a form that reads, in pertinent part, as follows:

To your knowledge has the applicant ever been: Arrested or convicted of a crime; Accused of a violation of trust; Dropped, suspended from, disciplined or placed on probation by an educational institution; A party to a law suit (including bankruptcy); Addicted to or treated for the use of drugs, narcotics or alcohol; Denied admission to the bar of any jurisdiction; Delinquent in any financial obligation; Currently suffering from a disability which would impair the applicant's ability to practice law.

CT Bar Examining Committee, Form: Feb. 2001 Reference Letters (on file with Georgetown Journal of Legal Ethics). Overall, bar application questions seem to have become "increasingly intrusive; at least one state, Georgia, asks all applicants to waive all privacy rights to all medical records and any and all claims of physician-patient privilege, and a number of others ask all applicants to answer detailed questions about medical history." See HAZARD, supra note 6, at 874 n. 18.

54. . RESTATEMENT, supra note 8, at 2.

55. GILLERS & SIMON, supra note 39, at 414. It is interesting to note that the language of the Illinois rule offers significant discretion to the Committee on Character and Fitness, whereby the Committee shall not admit any applicant found to be unqualified "with respect to character, education, or any other relevant attribute." (emphasis added.) The phrase "any other relevant attribute" serves as a potentially massive "catch-all," and is left to the discretion of the Committee to define.

56. See Molly McDonough, Avowed Racist Hale Again Seeks Admission to Bar, CHI. DAILY L. BULL., July 29, 1999, at 1 (stating that Illinois is among thirty-two states that have character and fitness standards).

57. ILL. SUP. CT. R. 708. The applicant must establish "good moral character and general fitness to practice law."

58. Id. Additionally, Rule 708 provides for an appeal process to the Illinois Supreme Court for candidates who have been rejected by the Committee on Character and Fitness.

59. See supra note 42 and accompanying text; ILL. SUP. CT. R. 701(a).

60. ILL. Sup. Or. R, Art. VIII, Preamble (as cited in ISBA Amicus Brief, supra note 42).

61. See ISBA Amicus Brief, supra note 42. See also supra note 42. See also supra note 59. Some ten years prior to the addition of this policy on human rights, the Charter of the Illinois State Bar Association, Part 2 (as amended Nov. 14, 1981) states in part that "[t]he object of the Association shall be to establish and maintain the honor, standards and dignity of the legal profession. . . ." Based on these obligations, the Committee on Character and Fitness was, in essence, compelled to oppose Hale's application.

62. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 859 (1986).

63. See, e.g., Konigsberg v. State Bar, 353 U.S. 252, 262-63 (1957). Interestingly, the Supreme Court noted in Konigsberg: "The term `good moral character' has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Id.

64. Schware v. Board of Bar Exam. of N.M., 353 U.S. 232, 247 (1957) (Frankfurter, J., concurring).

65. RuLES OF PROCEDURE OF THE COMMISSION ON CHARACTER AND FITNESS OF THE SUPREME COURT OF MONTANA, effective Nov. 17, 1998 (amended by Supreme Court order on Mar. 23, 2000) available at http://www.montanabar.org/admission/characterfitness.html (last visited Mar. 6, 2002).

66. WOLFRAM, supra note 62, at 859.

67. Id. Clearly, such a broad application of the personal belief standard would lead to an absurd result. Essentially, under such a system, practically everyone could be denied admission to the bar for one reason or another -- depending on the beliefs of the specific evaluators.

68. Id. at 860.

69. Id. See also HAZARD, supra note 6, at 870 (asserting that historically, "good character" was often interpreted to mean that the applicant was acceptable to the local establishment in the bench and bar.).

70. Cf. In re Anastapalo, 366 U.S. 82, 102 (1961) (Black, J., dissenting) (citing statement of member of character committee that applicant's "belief in the Deity ... has a substantial bearing upon his fitness to practice law."). Professor Rhode's empirical survey of the operation of character committees has revealed a fascinating array of idiosyncratic determinations. In Michigan, for example, one candidate was initially denied admission by the committee (he was later admitted by the court) because of violating a fishing license statute ten years earlier, but other candidates were admitted who had been convicted of child molesting and conspiring to bomb a public building. Rhode, supra note 31, at 538.

71. Cf. In re Brodie, 394 F. Supp. 1208, 1211 (D. Or. 1975) (stating that homosexual behavior does not involve conduct inconsistent with "good moral character" requirement of the Immigration and Nationality Act because several government groups no longer prohibit public employment to homosexuals and the American Psychiatric Association no longer regards homosexuality as mental illness.).

72. WOLFRAM, supra note 62, at 860.

73. Id. at 863.

74. Massachusetts Bar Association Statement on Lawyer Professionalism, Section V, Scope of Responsibility for Professionalism, available at http://www.law.stetson.edu/litethics/massbar.htm.

75. See W. William Hodes, Accepting and Rejecting Clients - The Moral Autonomy of the Second-to-theLast Lawyer in Town, 48 KAN. L. REv. 977, 980 (2000) (discussing formal codes of professional ethics, such as the Model Code of Professional Responsibility and the newer Model Rules of Professional Conduct as guiding traditions in the legal profession). A classic approach to lawyering is captured by the phrase "zealousness within the bounds of law," though Hodes prefers to think of it as "playing hardball according to the rules." Moral screening, then, is an essential component to the certification process so as to ensure that lawyers will play according to appropriate rules and standards. Id.

76. WOLFRAM, supra note 62, at 860; see also Schware, 353 U.S. at 239 n.5. ("We need not enter into a discussion whether the practice of law is a 'right' or `privilege.' Regardless of how the State's grant of permission to engage in this occupation is characterized, it is sufficient to say that a person cannot be prevented from practicing except for valid reasons.").

77. WOLFRAM, supra note 62, at 861.

78. See id. at 861-63; see also Robert N. Wilentz, C.J., Amendments to the Regulations Governing the Committee on Character, NJ.LT, Mar. 25, 1996 (noting that regulation 202:4 states that each candidate to the New Jersey Bar must certify that that he or she does not have any child support obligations, or that, if he or she does have such obligations, they are not past due). This was an important expansion to the definition of fiscal responsibility as a requirement of bar applicants. Along these lines, the following examples of conduct are considered significant but not decisive in character and fitness inquiries: drug or alcohol abuse, repeated traffic offenses, plagiarism and other cheating in school, unauthorized practice of law, nondisclosure or false statements on the bar application questionnaire. See HAzARD, supra note 6, at 874.

79. The observation of essayist Logan Pearsall Smith in a statement that has served as Hate Watch's motto since its inception. See Hate Watch website, supra note 5.

80. See Hale, Committee on Character and Fitness for the Third Appellate District of the Supreme Court of Illinois (1998), reprinted in HAZARD, supra note 6, at 876.

81. See Mark Schauerte, Illinois Seeks to Deny a Law License to Vocal Racist, ST. Louis PosT-DISPATCH, Feb. 22, 1999, at Al.

82. See Hale, Committee on Character and Fitness for the Third Appellate District of the Supreme Court of Illinois (1998), reprinted in HAZARD, supra note 6, at 876; see also Emelie E. East, The Case of Matthew E Hale: Implications for First Amendment Rights, Social Mores and the Direction of Bar Examiners in an Era of Intolerance of Hatred, 13 GEO. J. LEGAL ETHics 741, 741-43 (2000).

83. See the website of the Illinois Board of Admissions to the Bar, at http://www.ibaby.org/ character_fitness.html (last visited Mar. 6, 2002).

84. See Chris Demo, Bigot Probably Will Be Admitted to the Bar, Says Law Expert, ST. J. REG. (Springfield, Ill.), Mar. 14, 1999, at 1.

85. See id; see also Schauerte, supra note 81, at Al. 86. See HAZARD, supra note 6, at 876-77.

87. HAzARD, supra note 6, at 876.

88. See id. See also WCOTC website, available at http://www.creator.org (last visited Feb. 20, 2002).

89. Id.; see HAzARD, supra note 6, at 876; see also World Church of the Creator Membership Manual, available at http:/www.creator.org/manual.html at 2, 26, 31 [hereinafter WCOTC Manual] (last visited Mar. 6, 2002).

90. WCOTC Manual, supra note 89, at 10. 91. HAzARD, supra note 6, at 876.

92. See WCOTC Manual, supra note 89; see also Current Developments of the National Organization of Bar Counsel, available at http://www.nobc.org/Atlanta_Aug-99/cdOlau99.html (last visited Mar. 6, 2002).

93. See WCOTC Manual, supra note 89, at 3. 94. Id.

95. See generally Facts that the Government and the Media Don't Want You to Know, available at http://www.creator.org/factsprint.html [hereinafter Facts] (last visited Mar. 6, 2002); WCOTC Manual, supra note 89.

96. Recurring Hate: Matt Hale and the World Church of the Creator, available at http://www.adl.org/ special-reports/wcotc/wcotc-new-lease.html (last visited Sept. 21, 2001) (on file with Georgetown Journal of Legal Ethics) [hereinafter Recurring Hate]; see also Facts, supra note 95.

97. Facts, supra note 95. It is important to note the technical inaccuracies in Hale's misguided analysis of the mythical "The Kosher Food Tax." In his discussion of label certification of kosher foods, for example, Hale erroneously defines basic certifications such as the symbol "K" found on many kosher foods products. Contrary to Hale's misguided belief, "K" is a letter in the alphabet. According to the website of the Union of Orthodox Jewish Congregations of America, the letter "K" cannot be copyrighted and the consumer generally does not know which, if any supervising agency is providing the supervision. Consumers who look for reliable supervision will not rely on the unknown certification of a "K" symbol. See Union of Orthodox Jewish Congregations of America, at http://www.ou.org/kosher/default.htm (last visited Mar. 6, 2002).

98. Facts, supra note 95.

99. See The Committee on Character and Fitness' Response in Opposition To Matthew F. Hale's Petition for Review, In re: The Application to the Bar of Matthew F. Hale (No. M.R. 16075) [hereinafter Committee Response] at 8 (quoting Panel Record at 220).

100. WCOTC Manual, supra note 89, at 5. To provide additional background insight into Hale's views on wide-ranging topics, the WCOTC Membership Manual contains a "Definitions" section. In it, the following definitions appear: "White Race: Nature's Finest Creatures; those whose genetic make-up is wholly or predominantly that of the people indigenous to the European continent, the collection of traits of which are readily distinguishable from other races; mud races: those not of the White Race; races typified by yellow, brown or black skin and little social, cultural or intellectual progression; Jew: a follower of the Talmud; a co-conspirator in the vicious program to destroy the White Race, generally of Semitic (mongrel) ancestry; the human parasite; democracy: a system of government whereby our White people are fragmented into various factions for the benefit of the Jews; a system of government which facilitates rule by the most conniving." Id. at 31-33.

101. Id. at 6.

102. Id. 103. Id.

104. Id. at 3; see also Recurring Hate, supra note 96.

105. See Committee Response, supra note 99, at 12 (quoting Panel Record at 189-90, 194, 207, 179, 234, 187, 193, 196-7).

106. See Matthew F. Hale, Committee on Character and Fitness, Third Judicial District (Ill., June 23, 1999); see also Current Developments of the National Organization of Bar Counsel, available at http://www.nobc.org/ Atlanta_Aug_99/cdO lau99/cdO I au99.html.

107. See Molly McDonough, St. Louis Lawyer Can Represent Racist Before High Court: Justices, CHI. DAILY L. BULL., Aug. 3, 1999, at 3; see also Molly McDonough, Avowed Racist Hale Again Seeks Admission to Bar, CHI. DAILY L. BULL., July 29, 1999, at 1.

108. See Matthew F. Hale, Committee on Character and Fitness, Third Judicial District (Ill., June 23, 1999); see also Current Developments of the National Organization of Bar Counsel, available at http://www.nobc.org/ Atlanta_Aug_99/cdOlau99/cdO au99.html.

109. See Molly McDonough, Third Try No Charm For Would-be Lawyer, CHI. DAILY L. BULL., July 2, 1999, at 1.

110. See Committee Response, supra note 99, at 3 (quoting Panel Record at 199, 227-28).

111. See id. at 3-4 (quoting Panel Record at 105, 223). Note further that on the introductory page to the Church of the Creator Membership Manual, there is a picture of Hale, saluting, seated in a chair with the Israeli flag beneath his feet. See WCOTC Manual, supra note 89.

112. See Committee Response, supra note 99 at 4 (quoting Panel Record at 221-24). 113. See id. (quoting Panel Record at 182-83).

114. See id. (quoting Panel Record at 182-86).

115. See id, at 4-5 (quoting Panel Record at 183-86).

116. See id. at 5 (quoting Panel Record at 221-23, 225-26, and 246). 117. See id. at 6 (quoting Panel Record at 216-217).

118. See Molly McDonough, Spree Shooter, Would-be Lawyer Shared Racist Goal, CHI. DAILY L. BULL., July 6, 1999, at 1.

119. See McDonough, supra note 109, at 1.

120. See Committee Response, supra note 99, at 6 (quoting Panel Record at 244, 249). 121. See HAZARD, supra note 6, at 876.

122. Id.

123. Id. at 877.

124. See Committee Response, supra note 99, at 12 (quoting Panel Record at 259-61); see also ILL. SUP. CT. R. 1.2(f)(l) and 8.4(a)(5). Rule 8.4(a)(5) states, in pertinent part, that a lawyer shall not "engage in conduct that is prejudicial to the administration of justice. In relation thereto, a lawyer shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, or national origin."

125. See Committee Response, supra note 99, at 13 (quoting Panel Record at 268-69). 126. See id. (quoting Panel Record at 261).

127. See Matthew F. Hale, Committee on Character and Fitness, Third Judicial District (Ill., June 23, 1999); see also Current Developments of the National Organization of Bar Counsel, available at http://www.nobc.org/ Atlanta_Aug_99/cdOl au99/cdO Iau99.html.

128. HAZARD, supra note 6, at 881. 129. Id. at 883-84.

130. See In re Matter of an Applicant for Admission to the Bar of the Commonwealth, 378 Mass. 795, 796 (1979), cert. denied 444 U.S. 1046 (1980) ("[The] license to practice law may not be withheld arbitrarily or discriminatorily."); see also Schware, 353 U.S. at 239 n.5 .

131. Despite Hale's statements to the contrary, it is arguable that Hale's views make it impossible to take the required oath "in good conscience." See, eg., In re Anastapalo, 121 N.E.2d at 826.

132. See HAZARD, supra note 6, at 884.

133. Kristen M. Jasket, Racists, Skinheads and Gay-Bashers Beware: Congress Joins the Battle Against Hate Crimes By Proposing The Hate Crimes Prevention Act of 1999, 24 SETON HALL LEGIS. 1509, 509 (2000)

(quoting 145 Cong Rec. S2624-02 (statement of Patrick Leahy (D-VT) in favor of the Hate Crimes Prevention Act of 1999)).

134. Id at 517.

135. Id

136. Id The couple was not injured.

137. Id

138. Id

139. Id.; see also ADL Changes Position on Matthew Hale, UPI Newswire, July 8, 1999, available at http://www.nizkor.org/ftp.cgi/people/ftp.py?people//h/hale.matthew/ADL-reverses-stance [hereinafter ADL Changes Position, UPI Newswire].

140. ADL Changes Position, UPI Newswire, supra note 139. 141. Jasket, supra note 133, at 518.

142. ADL Changes Position, UPI Newswire, supra note 139.

143. McDonough, supra note 118, at 1. Smith testified as a witness on Hale's behalf during the course of the character and fitness hearing. See East, supra note 82, at 750.

144. Kirsten Schamberg, FBI Agents Quiz Church Leader Over Rampage, CmCAGO TRIBuNE, June 8, 1999, at 1.

145. ISBA Amicus Brief, supra note 42.

146. See ADL Changes Position, UPI Newswire, supra note 139.

147. Id. By way of the principal-agent theory of liability, Smith's actions are perhaps sufficient to justify the denial of certification for Hale to practice law. Arguably, Smith went on his shooting spree because of (or on account of) Hale and the WCOTC, which is a sufficient basis to deny Hale's application.

148. HAZARD, supra note 6, at 876.

149. See Matt Hale, ILLiNOIS IssuEs, July/August, 1999, at 30. 150. HAZARD, supra note 6, at 877.

151. See Churches of Creativity, at http://www.creator.org/manual.html (describing doctrines of the WCOTC) (on file with Georgetown Journal of Legal Ethics).

in WCm amc Do 89. 153. 14

154. Recurring Hate, supra note 96.

155. Paul Zielbauer, Shouts and Scuffles at White Supremacy Rally, MY TImt*s, Mar. 11, 2001, at A40. During his "two-hour speech, [Hale] attacked everything from what he called the United States Border Patrol's coddling of illegal immigrants to the characterization of his movement by the `Jewish-controlled press.' " Id.

156. Current Developments of the National Organization of Bar Counsel, available at http://www.nobc.org/ Dallas_Feb_2000/cdOlfe0/cdOlfe0l.html (last visited Sept. 21, 2001) (on file with Georgetown Journal of Legal Ethics). A portion of Hale's case can be found at In re Matthew F. Hale, 723 N.E.2d 206 (Ill., 1999) (Heiple, J., dissenting).

157. See id. 158. Id.

159. Id. at 206.

160. Matthew F. Hale, 530 U.S. 1261 (June 26, 2000) (No. 99-1349). 161. Id.

162. Id. It is not clear that Montana would admit Hale. For a review of the character and fitness standard for admission to the Montana bar, see the Rules of Procedure of The Commission on Character and Fitness of The Supreme Court of Montana, effective Nov. 17, 1998 (Amended by Supreme Court order on Mar. 23, 2000 & Apr. 10, 2001), available at http://www.montanabar.org/admission/characterfitness.html (last visited Sept. 21, 2001) (on file with Georgetown Journal of Legal Ethics).

163. Id.

164. U.S. CONST. amend. I.

165. See HAZARD, supra note 6, at 879. 166. Id

167. HAZARD, supra note 6, at 880 (citing Baird v. Arizona, 401 U.S. 1 (1971)).

168. Baird, 401 U.S. at 6. The Court in Baird held that "a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes." Id at 7.

169. In re Hale, 723 N.E.2d at 206-07. 170. Id. at 206.

171. Id.

172. Steven Lubet, Can a Racist Be a Lawyer? CHI. TRIB., Aug. 3, 1999 at 11; see also Steven Lubet, The Law Profession Should Have a Place for White Supremacist, at http://www.freep.com/voices/columnists/ qelub22.htm (last visited Mar. 6, 2002).

173. For several supporters of First Amendment rights, including the ADL, the Smith shooting served as the final straw for Hale's application to practice law. Through this heinous and unforgivable act a line had been crossed. 174. HAZARD, supra note 6, at 881-82; For a review of this court's "fundamental truths," see supra note 127, and accompanying text.

175. ILL. SUP. CT. RULE 708; ILL. SuP. CT. RULE 709.

176. "Hale brandishes free speech as though it were a switchblade instead of the shield it is intended to provide." Stephen Anderson, Free-for-all Speech, 2000 ISBA Bar News 4, at http://www.illinoisbar.org/ association/0010%2D2d.htm (last visited Mar. 6, 2002); Hale "seeks to wrap himself in the American flag while [his] goal is to remove all color from that flag." Stephen Anderson, Flagging Character, 1999 ISBA Bar News 4, available at http:/www.illinoisbar.org/association/11%2d15c.htm (last visited Mar. 2, 2002).

177. According to an ADL report, "[w]hile estimates on the group's numbers are fuzzy, Hale claims that [WCOTC] now has almost 3,000 members. This figure, however, seems highly unlikely." Recurring Hate, supra note 96.

178. Schware, 353 U.S. at 247 (Frankfurter, J., concurring). 179. See HAzARD, supra note 6, at 881-82.

180. Model Rule 1.1 states "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." MODEL RuLEs Rule 1.1; see also GILLERs & SIMON, supra note 39, at 20. A lawyer's sanity and mental stability are necessary foundations to proving competence.

181. Alvin S. Poussaint They Hate. Kill. Are They Sane?, N.Y. TIMES, Aug. 26, 1999, at AIT 182. Id.; see also ISBA Amicus Brief, supra note 42.

183. White Supremacist Apologizes, Gets Life for 1999 Rampage, SACRAmENTO BEE, Mar. 27, 2001, Cal Report Section; see also Nation in Brief WASH. PosT, Apr. 28, 2001, at A22 (discussing case of Richard Baumhammers, who went on trial in Pittsburgh for shootings in the year 2000 that killed five people).

184. See In re Harvey Prager, 661 N.E.2d 84 (1996). 185. Id. at 86.

186. Id.

187. Id. at 87.

188. Id.

189. Id These felonies included, inter alia, "conspiracy to import into the United States a large quantity of marijuana, possession with intent to distribute a large quantity of marijuana, aiding and abetting the commission of this crime, and conspiracy to possess with intent to distribute in excess of 1,000 pounds of marijuana."

190. See Prager, 661 N.E.2d at 84. 191. Id.

192. Id. at 88. 193. Id.

194. Id. 195. Id.

196. Prager, 661 N.E.2d at 89.

197. Id. at 86. Seven justices of the Massachusetts Supreme Judicial Court voted to deny Prager's application. One justice dissented. See id. at 85.

198. Id. at 93 (quoting ABA Code of Recommended Standards for Bar Examiners, Comprehensive Guide to Bar Admission Requirements (1995-96)).

199. Id. at 92; see also Keenan, 47 N.E.2d 12 (Mass. 1943) (Keenan I); In re Hiss, 333 N.E.2d 429 (Mass. 1975).

200. Prager, 661 N.E.2d at 89.

201. Id (quoting Hiss, 333 N.E.2d 429). 202. Id. at 93.

203. Id.; see also In re Cason, 294 S.E.2d 520, 522-23 (Ga. 1982). 204. Application of Roger I. Roots, 762 A.2d It 61, 1162 (R.I. 2000). 205. See id. at 1163.

206. See id.

207. See id. at 1164.

208. Id.

209. See id. at 1167.

210. Roots, 762 A.2d at 1167. 211. Id. at 1168-69.

212. Id. at 1169. 213. Id.

214. Id. at 1168.

215. R.I. SUP. CT. APT. II, Rule 3(f) (2001).

216. Roots, 762 A.2d at 1163 (quoting In re Application of Capace, 291 A.2d 632, 634 (R.I. 1972)). A court will overturn a recommendation of a character and fitness committee if "such recommendation is not well founded." In re Testa, 489 A.2d 331, 334 (R.I. 1985).

217. The U.S. Supreme Court has already decided that the requirement that an attorney be able to take and abide by the oath to uphold the constitution and the laws of the United States is constitutional. See Law Students Civil Rights Research Council, Inc., v. Wadmond, 401 U.S. 154, 161 (1971).

218. See Roots, 762 A.2d at 1170; see also Konigsberg v. State Bar, 353 U.S. 252 (1957).

219. See generally Marcus Ratcliff, The Good Character Requirement: A Proposal for a Uniform National Standard, 36 TULSA L.J. 487 (2000).

220. Hale demonstrates absolutely no rehabilitation, nor intent of so doing. By contrast, Prager had significantly rehabilitated himself, while Roots testified under oath that he no longer entertains extremist views about the legitimacy of the federal government and vowed not to discriminate based on race or ethnicity.

221. REsTA', supra note 8, at 1 (discussing professional wg"on and admission to practice law). 222. Id

RICHARD L. SLOANE*

* J.D., Georgetown University Law Center, May 2002 (expected); M.B.A., The Ohio State University; B.A., Brandeis University. I would like to thank several important people in my life, each of whom has taught me much about law, justice, ethics and the world in which these forces operate. Without the influence of these individuals, I would not be complete. They include: my wife, Leigh, for her perspective and love; my mother, Marcia, for her strength, judgment and support; my brother, David, for his wisdom, humor, and loyalty; and my aunt, Susie, for her courage, insight, and high standards. I also would like to thank my father, Joseph Robert Sloane, z "I, for having taught me countless lessons about the power of faith and hope. Though you left us too early, you live on in our hearts. This Note is dedicated to my grandmother, Fay B. Landau, my role model, my closest advisor, and my friend. Your boundless energy and encouragement motivate those who you touch. Your commitment to family and community are inspiring. Thank you - and I love you.

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