In Support of Changes to the Character and Fitness Process

Thoughts from one of the WSBA’s representatives on the Washington Bar Licensure Task Force

BY BRENT WILLIAMS-RUTH, GOVERNOR AT-LARGE

Tarra Simmons.¹1 With gratitude to now-friend and State Representative Tarra Simmons, who has granted me permission to share my journey via her character and fitness review; read her story in the July 2018 issue of Bar News at wabarnews.org/archive/. It really is just that simple. Her character and fitness review sparked my deep conviction to learn more, to step up to bar leadership, and, my ultimate goal, to author and advocate for changes that will provide for a clearer, more transparent admissions process rooted in modern research.

My journey of advocacy began in 2016 when I had just launched my own law firm and accepted a contract with Seattle University School of Law to evolve the Public Interest Law Foundation Auction from student focused to community focused. That task²2 A success that carries through today; please attend the Public Interest Law Foundation annual auction and dinner on Feb. 24, 2024:
law.seattleu.edu/student-life/community/student-activities/student-organizations/public-interest-law-foundation/. put me inside Sullivan Hall every day for nearly a year. During that time, I had the opportunity to meet Simmons, an extraordinary 3L with a colorful, legal-system-involved past. Because of this past, when she applied to sit for the Washington bar exam, she was referred to a hearing before the WSBA Character and Fitness Board, which denied her application. The result of that process—a successful appeal to the Washington Supreme Court in In re Simmons, 190 Wn.2d 374, 414 P.3d 1111 (2018)—has been widely discussed.

I am proud to say that I had subscribed to the amicus brief on behalf of Simmons and was in the Temple of Justice when oral arguments were heard. Beyond that, I felt a call to action to understand: What is the Character and Fitness Board? How could they come to such a different conclusion than the court? From incarceration to Skadden Fellow³3 www.skaddenfellowships.org/.—Simmons seems like the exact person we want as a member of the Bar.

Like everything in the law, the situation was vastly more complicated than it first appeared. Fortunately, I was appointed to join the Character and Fitness Board and in doing so became one of a super minority of people who know exactly what happens in those hearings and deliberations that lead to a recommendation to the Supreme Court. My tenure on the board was still fresh when I started asking questions about the process and rules by which character and fitness determinations are made. To summarize what I learned: I believe it would be easier to explain nuclear fusion than it would be to explain the analysis under the existing Admission and Practice Rules (APR). And that is a problem for prospective candidates who, at the very least, deserve a review process that is transparent and understandable.

Because it was considered inappropriate for members of the Character and Fitness Board to lobby the court to change the rules, I resigned and joined the WSBA Board of Governors, whereupon I immediately presented a proposal to open a conversation about how the process could be improved. It just so happened that at the same time I was pushing for this reform, a spirited conversation was emerging in the legal community about establishing alternative pathways to licensure. Then WSBA-President Kyle Sciuchetti approached me with the idea of wrapping my proposed task force into one that was being discussed by the Supreme Court that would look at the whole licensure process under one umbrella. I agreed and gladly accepted the nomination to represent the WSBA on the Washington Bar Licensure Task Force.

Over the past two years, I have chaired the task force’s Subcommittee on Ethics/Character & Fitness and have spent hundreds of hours talking with national scholars and leaders who have dedicated their professional lives to this topic (including reading sneak previews of books with cutting edge research on the issues raised). Our subcommittee heard from law schools that their students maintain a persistent but incorrect belief that seeking help for depression or mental illness will prevent them from sitting for the bar exam.This takes me back to my own time in law school, when there were 1,000 students in the building and seven were openly identifying as being LGBT. Although I never hid who I was, I also did my very best to code switch and present as “normal.”

I personally believe the entire character and fitness process should be abandoned as the research indicates to me that you cannot predict someone’s future conduct based upon their past behavior; however, our subcommittee understood that such a proposal at this time would be a non-starter. What we ultimately discovered is that there is room for significant improvement in the process with rules that could at least make the analysis less burdensome on the applicants, the members of the Character and Fitness Board tasked with upholding the rules, and even the court itself.

The proposals put forth are not set in stone. Our subcommittee comprises dedicated volunteers willing to dive into the process to produce in-depth proposals ready for implementation, but we understand the need to get a better sense of whether the court is open to such changes before we invest time in significant additional work. So our initial report lays out the reasons we believe the court should be open to our recommendations, which include:

• joining the nearly 30 other jurisdictions that have a provisional admission (like probation, but private);
• allowing for those with histories that might result in a character and fitness hearing to have that part of their life examined before incurring three years of law school debt;
• creating an ombudsperson-style contact to help applicants navigate the process if they are referred to a hearing; and
• most concretely, revising some of the rules themselves.

When I began my term on the Character and Fitness Board, I thought it was going to be easy. I would see the next Tarra Simmons and I would vote to recommend her admission. What I found was that each and every case is different. During my term, I never had another Tarra Simmons. I voted based on what I believed the rules required me to do in each case. There were times when the court agreed with and endorsed the recommendation of the board, and there were times when it did not. I don’t like the idea that we got it “wrong,” but sometimes that happens. The most frustrating outcome in these situations was that we had no clear explanation or reason why—we had nothing to help us avoid making the same mistake in analysis again. How could we ever improve? This is why are asking the court to consider improving the character and fitness process by adopting the recommendations of the Subcommittee on Ethics/Character & Fitness.

And to think—it all started with Tarra Simmons.  

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LEARN MORE

Read the full report, “A Proposal for the Future of Washington State Bar Admissions,” at
www.courts.wa.gov/appellate_ trial_courts/SupremeCourt/?fa= supremecourt.LicensureTaskForce.

NOTES         

1.    With gratitude to now-friend and State Representative Tarra Simmons, who has granted me permission to share my journey via her character and fitness review; read her story in the July 2018 issue of Bar News at wabarnews.org/archive/.

2.    A success that carries through today; please attend the Public Interest Law Foundation annual auction and dinner on Feb. 24, 2024:
law.seattleu.edu/student-life/community/student-activities/student-organizations/public-interest-law-foundation/.

3.    www.skaddenfellowships.org/.