The New York Bar Application and Racial Inequality
Current Requirement Conflicts with State Law that Protects Confidential and Sealed Information; Deepens Racial Inequity in the Legal Profession
The New York City Bar Association has sent a letter to the New York Administrative Board of the Courts, and to the New York State Board of Law Examiners, urging them to amend Question 26 of the Application for Admission to Practice as an Attorney and Counselor-at-law in the State of New York, which requires New York Bar applicants to disclose information about all arrests and convictions, including confidential and sealed information.
The letter recommends that the Administrative Board “cease asking about the six categories of juvenile and criminal arrests and prosecutions that are protected from inquiry by Section 380.1 of the Family Court Act and Section 296(16) of the Executive Law.” According to the letter, the only licensing bodies that maintain they are wholly exempt from these laws are weapons licensing agencies, which are explicitly exempt, and the Unified Court System, which licenses attorneys and is not exempt under any tenable reading of the law. The letter says “to our knowledge, every other State or local licensing agency—including those that license childcare workers, teachers, finance workers, doctors, and healthcare workers—maintains a policy of not inquiring about these protected records.” After reviewing the contents of these statutes, the letter states “it is concerning that, in vetting applicants’ suitability to join the legal profession, the Administrative Board of the Courts and the four Character and Fitness Committees have adopted a practice so squarely at odds with the spirit and the letter of New York law.”
“Not only does Question 26 contravene the spirit and letter of New York law, but it deepens the racial inequities endemic to the legal profession,” according to the letter. The letter further says that “lack of judicial diversity mirrors the significant lack of diversity in the legal profession generally.” It cites the figure that “today, 2.3 million New Yorkers have conviction records, and in both the criminal and juvenile legal systems, Black and brown communities are overrepresented due to decades of over-policing and prosecution of people of color. As such, any general inquiry by the Character and Fitness Committees into arrest and conviction information disproportionately burdens applicants of color, and might chill individuals of color from pursuing a legal education in the first place.”
The letter contends that “this is a matter of fairness for the thousands of New Yorkers whose criminal or juvenile cases are sealed or otherwise favorably resolved. By failing to comply with New York State law, [the Unified Court System] sends an unequivocal message to prospective and current lawyers that arrest and conviction records are always relevant, irrespective of how one’s case resolves or the legislature’s intent.”
“Amending Question 26 would bring the question into compliance with the letter and spirit of New York law and help address racial inequality in our profession. It is incumbent upon those in the legal profession, and its gatekeepers, to be proactive in the fight for racial equality,” the letter states.
Read the full letter here: https://bit.ly/3pjVmxW
