Good Character and Bad Regulation

Introduction
 On May 21, 2013 Matt Maurer posted on SLAW noting that the Law Society of Upper Canada had decided that Ryan Manilla was of sufficiently good character to be admitted as a member, reversing its prior decision that he lacked such character (here).

In this post I place the Manilla decision in the context of the broader application of the good character requirement for Law Society admission and, in particular, in the context of the Federation of Law Societies’ recommendations for reforming that requirement ((National Admissions Standards Phase 1 Report). My comments reflect my broader research on this topic (see, e.g., here)

My argument is this: the good character requirement as currently administered is ineffective, incoherent and unfair. It imposes significant costs while yielding insignificant or no benefits in terms of protecting the public interest. The proposals of the Federation would improve it, but a better approach would be to abandon the requirement altogether or (more realistically) to replace the good character requirement with blanket exclusionary rules.

The Good Character Requirement

The first thing to know about the good character requirement is that while it applies to every applicant for law society admission, it results in the exclusion of very few. Based on a review of the cases and data provided by law societies, about 6 applicants to Canadian law societies were denied admission on the basis of character from 2006-2012. The good character requirement imposes a regulatory cost – in Ontario, e.g., 575 applications raised issues of character in 2006-2012, and 24 hearings were held – but it does not significantly change the composition of the profession.

While good character decisions are now published by most Canadian law societies, much of the process is private. It is not known, for example, on what basis the Law Society of Upper Canada decided to conduct hearings in 24 of the 575 cases in which a character issue was raised. It is also the case that most Canadian law societies do not independently verify applicant character. Only a few law societies – Manitoba and Nova Scotia are two – have introduced mandatory criminal record checks.

Based on a review of the published decisions, the key factor in determining the outcome of a case is whether the applicant admits the misconduct that gave rise to the hearing. With the exception of two cases with unusual facts, applicants who acknowledged and repented their misconduct were admitted, even where the misconduct was serious, including bribing a public official, having 38 convictions for fraud-related offences (and other issues), drug smuggling, being struck off as a teacher for criminal harassment and committing sexual assault while intoxicated. By contrast, applicants who did not fully acknowledge their misconduct were denied admission, even where the misconduct was relatively minor, such as being charged but not tried on allegations related to a (fender bender) hit and run and impaired driving. In Manilla’s case, the initial determination that he was not of good character arose in significant part because he only admitted the full extent of his wrongdoing (sending a defamatory letter under a false name) five days before the hearing. That acknowledgement has now had longer to stick, and can be coupled with supportive evidence such as expert reports, which may partly explain the Law Society’s changed position.

Part of the reason that failing to acknowledge misconduct can be fatal to an application is that in the good character cases the burden of proof is on the applicant, and the rules of evidence do not apply. As a consequence, law societies will rely on hearsay (and sometimes incomplete) evidence from police reports and similar documents to prove the past misconduct. At the same time, an applicant who denies the allegations in whole or part will be subject to cross-examination by counsel for the law society. Perhaps not surprisingly, applicants subject to such a process have a difficult time proving the plausibility of their denial in relation to the hearsay documentation placed against it.

Law societies rely on the good character requirement to ensure the ethics of lawyers, maintain public confidence in the legal profession and to protect the public. They do so despite the evidence from behavioural psychology, which questions both the identifiability of character and its usefulness in predicting future conduct. That general evidence has recently been bolstered by research out of Connecticut which shows that there is no meaningful correlation between the types of matters scrutinized in character cases and future professional discipline (The Levin Report).

Fixing the Good Character Requirement

The Federation of Law Societies has suggested replacing character review with consideration of an applicant’s “suitability” for legal practice. Suitability review will consider whether an applicant has the “honesty, integrity and candour that members of the profession must possess”. The Federation’s approach has the advantage of removing some of the more obvious vagueness determining whether an applicant has “good character”. It properly focuses on what is necessary to ensure ethical legal practice. At the same time, however, “honesty, integrity and candour” are in fact key parts of the current definition of “character”, so it is not clear how much of a change suitability review would effect. In particular, it is not clear how suitability review will eliminate some of the problems with the current approach – e.g., the excessive reliance on applicants acknowledging their past misconduct. The Federation’s recommendations also do not address the process for assessing character, in which applicants must demonstrate their character in the face of hearsay evidence.

If continuing to impose non-academic requirements on applicants, a better approach would be to preclude admission under certain circumstances, such as where an applicant has been convicted of an indictable offence for which he has not received a pardon. This would ensure that people know prior to law school whether they will be able to become lawyers. It would send a more unambiguous message about professional standards than do the current character hearings, which result in the exclusion of so few applicants. It would be more consistent – applicants with similar histories would be treated the same. It would be more objective than assessing an applicant’s remorse in testimony. Blanket rules are in their own way capricious, and can result in unfairness in individual cases. But they are unlikely to be more capricious than the current system.

In the end, any regulatory requirement has to pass this test: its benefits must outweigh its costs. It is hard to see how the current approach to character review does so. Ryan Manilla has spent years responding to the law society’s position that he lacks good character. He was found not to be of good character. Now he has been found to be of good character, and is being admitted to the profession. Is Ryan Manilla a good man? Will he be a good lawyer? Do those two things (good man/good lawyer) have anything to do with each other? I don’t know. But I do know this: none of the many law society decisions about Ryan Manilla persuasively answered those questions, despite the expense and trouble for everyone involved.