Proposed Amendments to the Rules of the State Bar Regarding Moral Character for Out-of-State Attorney Applicants and Examinations (Rules 4.41 and 4.62)

The State Bar seeks public comment on proposed amendments to modify rule 4.41, as it is currently a barrier to admission for out-of-state attorney applicants, and align rule 4.62 (the return of exam materials) with current practice.

Deadline: July 26, 2023, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.

Background

Moral Character
Applicants for admission to practice law in California must be of good moral character. (See section 6060(b)(1) and rule 4.40.) All applicants for admission to the State Bar are required to submit an application that allows the State Bar to assess whether the applicant possesses the requisite moral character. Currently, out-of-state attorney applicants who have been and remain disbarred, are suspended for disciplinary reasons, or are otherwise not in good standing for disciplinary reasons, may not submit an Application for Determination of Moral Character pursuant to rule 4.41.

Examinations
Admissions rule 4.62 requires that within 60 days of the release of exam results, exam answers to the written portion of the exam be returned to applicants who failed the California Bar Exam or passed or failed the First-Year Law Students’ Exam.

Discussion/proposal

Moral Character
Adoption of revised rule 4.41 would result in an increase in the number of moral character applications submitted. The amount of the increase is unknown but is anticipated to be small and absorbable within current resources.

Examinations
Currently, rule 4.41 creates a situation where out-of-state attorneys who are disbarred, suspended for disciplinary reasons, or otherwise not in good standing for disciplinary reasons may register with the Office of Admissions, sit for, and pass the California Bar Exam, but cannot be admitted to practice law unless they “cure” the issue in the other jurisdiction.

The proposed revision to rule 4.41 allows an attorney who is currently not in good standing for disciplinary reasons in another jurisdiction to submit an Application for Determination of Moral Character, while providing a rebuttable presumption that the person does not possess the requisite moral character. The rebuttable presumption is appropriate for public protection as the Supreme Court has held that an applicant, “having been disbarred in another state, stands in essentially identical circumstances to a disbarred California attorney seeking reinstatement, and the evidence of rehabilitation should therefore be evaluated under the same rigorous standards,” and that a disbarred applicant, “is not entitled to the benefit of the doubt if ‘equally reasonable inferences may be drawn from a proven fact’ [citation].” (In re Menna (1995) 11 Cal.4th 975, 986.) The rule revision will afford these attorneys the opportunity to submit an Application for Determination of Moral Character and rebut the presumption that they do not possess the requisite good moral character for admission.

Any fiscal/personnel impact

Moral Character
Adoption of revised rule 4.41 would result in an increase in the number of moral character applications submitted. The amount of the increase is unknown but is anticipated to be small and absorbable within current resources.

Examinations
None

Background material
  • From the Committee of Bar Examiners meeting March 24, 2023: Agenda Item O-202 Action on Revisions to the Grading Rules, Policy & Statute: Recommendation to Circulate State Bar Rule for Public Comment
  • From the Committee of Bar Examiners meeting March 24, 2023: Agenda Item O-501Action on Revision to Rule 4.41 of the Admissions Rules: Recommendation to Circulate for Public Comment
  • From the Committee of Bar Examiners meeting April 21, 2023: Agenda Item II.B. Revisions to the Grading Rules: Adjustment to the Public Comment Period
  • From the Board of Trustees meeting May 18—19, 2023: Agenda Item 702 Proposed Amendments to the Admissions Rules Regarding Examinations and Moral Character for Out-of-State Applicants (Rule 4.41 and 4.62): Request to Circulate for Public Comment
Source

Board of Trustees and Committee of Bar Examiners

Deadline

July 26, 2023, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.