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Author Topic: Can a person be exclude from the practice of law ........Felony conviction  (Read 13500 times)

grr766_Greg

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How to become a attorney if you have a Felony conviction……

This might look like a question that says; “Out of the Question” however, you can.......and there is some case law...
--
 A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U.S. 165 (1923). In In Re Application of Crossley,310 Ark. 435, 839 S.W.2d 1 (1992), this court recognized chemical addiction is a disease, and in terms of the good moral character and mental and emotional stability required for admission to practice law, noted that addiction raises the question of fitness as opposed to moral turpitude. This court continued, saying "nhappily, though, that conclusion on our part does not decide the matter, for our ultimate purpose in resolving admission questions is to assess an applicant's fitness to practice law and to protect the public's interest." Crossley, 310 Ark. at 441.
and
Maryland; 292 Md.378; 493 A.2d 1107......

My question is this, What do you think should a person be given the chance and if so do you think there should be stipulations for that person ……I am looking to publish this paper, and would like to hear from outside the box……

one link to look at also....... http://www.law.upenn.edu/conlaw/issues/vol6/num4/keeley.pdf

Thanks Everyone for your help..... :-) 
 

"Whereas the law is passionless, passion must ever sway the heart of man." - Aristotle

grr766_Greg

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You have made some very good points

That is the impression I believe that most people have about a felony conviction.
In the state of Missouri (and other states) a felon can vote under RSMO 115.133, 115.135, and 115.425 only after finally discharged from probation or parole.
  Qualifications to Vote:
•   U.S. citizen and a Missouri resident
•   be at least 18 years old by the election date
•   cannot be adjudged incapacitated
•   cannot be confined under sentence of imprisonment
•   cannot be on probation or parole after conviction of a felony until finally discharged
•   cannot be a person after conviction of a felony or misdemeanor connected with the right of suffrage (RSMo 115.133)


Now I would have to look at ever state to see the civil rights for voting……

I want to go to the point about something you said: “I thought a felony conviction pretty much places someone in a different category altogether, and certain "rights" that are enjoyed by others are not enjoyed by the convicted felon”

I will try to enlighten you from this point; maybe we need to look at “civil rights” and how a felon can have them restored, if it is a federal crime one can get a Presidential pardon for state crimes a Governors pardon is giving to restored civil liberties -- again in Missouri there is 3 kinds of pardons 1st view holds that a pardon obliterated both conviction and guilt, which places the offender in a position as if he has not committed the offense in the first place. The 2nd view is that the conviction is obliterated BUT GUILT REMAINS.  The 3rd view is the neither the conviction nor guilt is obliterated.

Now for the point about being able to hold a professional license I.e. Law, here again I will show how it looks for Missouri;

Missouri Supreme Court Rule 8: Admission to the Missouri Bar

8.04 INELIGIBILITY
(a) Any person, whether sentence is imposed or not, who has pleaded guilty or nolo contendere to or been found guilty of any felony of the United States, this state, any other state or any United States territory is not eligible to apply for admission to the bar of this state until five years after the date of successful completion of any sentence or period of probation as a result of the conviction, plea, or finding of guilt.
(b) Any application for admission to the bar from a person who has pleaded guilty or nolo contendere to or been found guilty as specified in Rule 8.04(a) shall show affirmatively, in addition to the other requirements of the application, that:
(1) Any sentence or period of probation was completed at least five years ago;
(2) The cause has abated;
(3) Any person injured as a result of the conduct of the applicant has received restitution, the claims have been discharged by operation of law, or that the person has been notified at least ten days, but not more than ninety days, in advance of the filing of the application;
(4) All special conditions, if any, imposed have been accomplished; and
(5) The best interest of the public will be served if the applicant receives a license.
(c) A person whose application has been denied, except as provided by Rule 8.04(a), is not eligible to apply for admission to the bar for a period of five years from the date the Board recommends denial of the application, unless the Board or this Court on appeal specifies a shorter period.
(d) A person having a complaint pending before the licensing authority of any other state or territory or who has been suspended or disbarred from the practice of law by the licensing authority of any state or territory is not eligible to apply for admission to the bar of this state during the time the complaint is pending or the period of such suspension or disbarment. In no instance shall any such person be eligible for admission until the person has been fully reinstated by such authority or otherwise exonerated. Favorable resolution or termination of a complaint or reinstatement shall not bar or in any way prohibit the Board from making an adverse determination as to character and fitness.
Regulations of the Board of Law Examiners
(1) A felony conviction as described in Rule 8.04(a) is a per se disqualification to file an application for admission under Rule 8.07, Rule 8.10 or Rule 8.105 until after the period of ineligibility imposed by Rule 8.04(a) has expired. Once the Rule 8.04(a) period of ineligibility has expired, the Board will consider the felony in reaching a determination as to the applicant’s character and fitness.
(2) As part of its character and fitness determination, the Board considers any criminal conduct not within Rule 8.04(a).

 Now that this is all said most states do have determination as to the applicant’s character and fitness. However, the U.S. Supreme Court I.e. SCHWARE v. BOARD OF BAR EXAMINERS, 353 U.S. 232 (1957) is following state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process Clause of the Fourteenth Amendment.

And there is a case from Maryland G.L.S., 292 Md. 378, where this person was aloud to become a member of the Maryland Bar……this person was convicted of a federal crime of armed bank robbery ……you must read the case to see what this person has done to get where he is today.
I know that I did not hit on the person that was convicted of several crimes on separate and unrelated occasions, and these crimes are not exactly crimes that would raise an issue of character and fitness per se. Here is where my question comes to play; should a person be given the chance and if so do you think there should be stipulations for that person?? 
"Whereas the law is passionless, passion must ever sway the heart of man." - Aristotle

eray01

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What state is reckless driving a felony? In my state it's just a violation. If you get a serious enough speeding ticket, they bargain you down to a reckless driving with diversion (traffic school),and then it disappears from your driving record. Most things I can think of that are usually felonies are pretty inexcusable.

chaser

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This is certainly an interesting topic.

A landmark case that I would think would be at least tangentially relevant to an argument IN FAVOR of letting a convicted felon sit for the bar would be Johnson v. Avery; 393 U.S. 483.

This was the case that struck down a prohibition against so-called "jailhouse lawyers," i.e. prisoners helping other prisoners prepare petitions.

The theory is that it would be unconscionable from an Equal Protection standpoint to disallow an illiterate felon from getting assistance from a literate felon.

In other words, to me, the case is saying that "The smartest guy on Cellblock D"--who is not necessarily a lawyer or ex-lawyer--is better than no counsel at all.

If one were citing this case, a case would have to be made that the ex-felon planned on doing a lot of pro bono and community service work--perhaps planned on becoming a public defender.

A side-note in this case, I believe, was that the judge felt that prisoners doing research and writing petitions was much more constructive than some of the alternative things they COULD be doing.

You could make the tangential argument that lawyering has a rehabilitative quality on the ex-felon, by conjecture.  (And not many batteries occur where the weapon of choice is a Black's Law Dictionary.)

In my opinion, since we let convicts become undercover cops--where they can have legal authority to restrain a citizen--we should surely CONSIDER whether they can become lawyers.

(In jurisdictions which allow it; I would think it would be a factor whether the violation was a MALUM PROHIBITUM or a MALUM IN SE.  For instance, marijuana was not even illegal in the US until 1931.  Lincoln could have smoked marijuana in his law office, and not gotten disbarred.  Should felony possession of marijuana be a total block to bar membership?  Clearly, that's a MALUM PROHIBITUM.

"Aggravated assault," on the other hand, has been a MALUM IN SE since the inception of common law.)

FOOTNOTE: A famous attorney who was disbarred and then re-instated is obviously Frank Ragano:

http://www.spartacus.schoolnet.co.uk/JFKraganoF.htm

(Note: I do not necessarily subscribe to the JFK conspiracy theories on the above page.)

Ragano, of course, is evidence of my "MALUM PROHIBITUM"-theory; to wit, alleged income tax evasion is a "malum prohibitum," since the US did not have income tax--and somehow survived--until the early 20th Century.  (That's a century and a half of "Republic" without the "malum prohibitum.")

"Civilization is the process of reducing the infinite to the finite."  Oliver Wendell Holmes

futurecatchesme

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Here we go again!!!  Anyone who cites "Schware," obviously has no business writing on this topic. I have been working in this area for sometime now and the mere presence of a felony is practically meaningless.  Most of the felonies that come up pertain to drug possession.  Many, many more individuals continuously use drugs, even during law school, but just happen not to get caught.  I guess you possess "moral turpitude" if you are the unlucky who are apprehended.  Not only do you have to deal with the problem when it occurs, i.e., parents, shame, financial loss, etc., you get "smacked down" again many years later.  Read the case about Jeffrey Greeneberg from Alabama for a good laugh.  Also read Deborah Rhode's work - she has written extensively about your topic.  There is no "pattern" to this process.  Basically, Boards pick a few individuals yearly to deny to show that they are protecting the public.  Most importantly, the majority of the individuals that have problems with bar admission are undoubtedly moral individuals who would make fantastic attorneys.  Unfortunately, some events in the past result in the loss of their dreams, financial freedom (bankrupticies typically result following denial), and broken relationships with significant others.  Thank you.


am

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What is it that you've been convicted about? What's the name of your felony?

Jackie110

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I know I'm late but I googled this topic and I'd like to share my situation, maybe get some other views.
I'm 21 years old and I have a pending felony (Poss/Man/Del Controlled or Counterfeit Subs w/int Man/Del). Allegedly I sold cocaine to an undercover cop last year. I was picked out of an array of photos by the cop as the person who sold it to her. If I had $5000 to pay for a trial I could more than likely beat the case, but since I don't have the money yet it may have to go on my record. I've made mistakes in my past, but now I'm turning over a new leaf. I've been in school for the last year, and working steadily. So if I continue to succeed and stay away from trouble, why shouldnt I be allowed to practice law a few years from now?

fortook

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Six years late isn't a little late, it's real late.  Anyways, I agree with you on your situation, but your speaking in terms of values not facts.  Most states "allow" the practice of law with a felony conviction.  Meaning a felony conviction is not a bar to practice, the local bar examiners make a case by case decision.  Two states have an automatic bar with a felony conviction, TX and DE (I think).

That said, it is incredibly difficult to get approved by the examiners in most states.  It is possible, however.  I'm not down with our criminal records system either, it's a way of branding people for their entire lives.  The way that used to be done, was an actual branding into the flesh. The modern way is less messy (which some people seem to think means civilized, it doesn't), but just as crippling.  People who have never been through it are quick to judge, I've noticed the same type of attitudes of vindictive ignorance when rich people criticize poor people. If your working for 8$/hr, you kind of need the 8$; regardless of your actual innocence or guilt.

Some felonies are egregious, but some things you would be amazed are felonies.  If you can't get a public defender, sell everything you own, borrow every single cent you can and hire an attorney.  A felony will ruin your life. 

One other thing, you know that any drug conviction- misdemeanor or felony- bars you from getting federal student loans.  It's messed up, I know.  One simple possession conviction and boom no college, no upward mobility, no decent job, no decent salary and the cycle continues.  So there is another round about way the system will try to bind you.

I used to work in a courthouse where so many of the defendants did not care if they were innocent or guilty, they just wanted to go home as quickly as possible.  The end result of a conviction brands you and makes your chances of succeeding in life exponentially more difficult.  Regardless, good luck.
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justanothersucker

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every now and then you hear about a "innercity kid" who "was in a gang and did drugs, went to prison, get GED, now in lawschool".

I think you just have to appeal to Obama voters and you'll be ok.

If they turn you down then you can call Al Sharpton. He'll make sure you get licensed(unless you don't look like him, then he dosn't care)