In the Matter of the Bar Application of TARRA DENELLE SIMMONS.
moral character as a credential for practicing law has a long
and intriguing history. While lawyers may have more work to do
in regard to how the public perceives our contributions to
society, the evaluation of a bar applicant's character is
an important step toward building confidence in our legal
profession and our system of justice.
point in time, every state bar has some form of certification
of moral character as part of its admission process.
See Nat'l Conference of Bar Exam's & Am.
Bar Ass'n Section of Legal Educ. and Admissions to Bar,
Comprehensive Guide to Bar Admission Requirements (2018),
Concerned with the morality of an applicant, the inquiry
serves a legitimate interest in protecting the public and
preserving a certain degree of professionalism. Nonetheless,
we also know that throughout our history the standards used
to assess moral character have shifted as society's norms
and moral codes have changed. For example, categorical
exclusions of women or rejection of applicants based on race,
ethnicity, or sexual orientation were once generally
accepted. But just as we have evolved in our understanding of
humanity, we have also grown in our understanding of what
makes a bar applicant a person of good moral character worthy
of admission. Today, we affirm the principles that for
purposes of bar admission, a moral character inquiry is
determined on an individualized basis and that there is no
categorical exclusion of an applicant who has a criminal or
substance abuse history.
case concerns a recent law school graduate's application
to sit for the Washington State Bar Examination. Tarra
Denelle Simmons has a challenging social history, including
long-term substance abuse, multiple criminal convictions, and
two bankruptcies. However, in the approximately five and a
half years preceding her application to sit for the bar exam,
Simmons successfully engaged in treatment for her substance
abuse and childhood trauma. She has undisputedly maintained
her sobriety since September 2011 and has not been accused of
any criminal or unethical behavior since then.
was entirely candid about her past when she applied to sit
for the summer 2017 bar exam, and she readily provided
further information as requested by counsel for the
Washington State Bar Association (WSBA). Bar counsel referred
Simmons' application to the WSBA Character and Fitness
Board (Board), which recommended by a vote of six to three
that Simmons' application be denied. We then reviewed her
application and the Board's recommendation, heard oral
argument on November 16, 2017, and granted Simmons'
application in a unanimous order later that
Order, In re Simmons, No. 201, 671-5 (Wash. Nov. 16,
2017). We now explain the reasons for our decision.
was born to parents with substance abuse problems, and she
grew up in poverty, surrounded by crime. She was the victim
of many acts of sexual violence during her childhood and
adolescence, and endured sporadic periods of homelessness
beginning when she ran away at age 13. As a juvenile, Simmons
was adjudicated for theft, possession of stolen property, and
second degree assault.
struggled with addiction for years, and her adult history
includes a 2001 conviction for second degree assault and five
2011 convictions for organized retail theft, unlawful
possession of a firearm, and possession of controlled
substances. As a result of her criminal convictions,
Simmons' nursing license was placed on probationary
status, she served a total of over three years in jail and
prison, and she underwent two bankruptcies and a foreclosure
on her home.
when Simmons was sent to prison in late 2011, she began
engaging in meaningful treatment for her trauma and addiction
for the first time. Since then, she has changed her life to a
degree that can only be deemed remarkable, both in terms of
the efforts she has put forth and the positive results she
has achieved. Wash. Supreme Court oral argument, In re
Simmons, No. 201, 671-5 (Nov. 16, 2017), at 38 min.,
audio recording by TVW, Washington State's
Public Affairs Network, http://www.tvw.org. Simmons
has maintained her sobriety and conducted herself with
complete openness and integrity over the past six years. She
has been candid about her past, demonstrating sincere remorse
and working diligently to make amends to her community as an
outspoken advocate for civil legal aid with a focus on
assisting formerly incarcerated individuals facing barriers
attended the Seattle University School of Law and became the
first student in her school's history to be awarded a
two-year public interest fellowship from the Skadden
Foundation. She graduated magna cum laude as a dean's
medal recipient in May 2017, and letters from faculty and
classmates further make it clear that Simmons was a
substantial asset to the entire law school community. Letters
from her supervisors and colleagues also unequivocally state
that Simmons excelled and exhibited consistently ethical
behavior in the five legal internships she completed during
law school, in addition to the volunteer and advocacy work
that she undertook for no course credit.
Simmons' about-face life choices, her extensive criminal
history and recent substance abuse nevertheless gave bar
counsel reasonable grounds to refer the matter for further
consideration. Thus, counsel for the WSBA sent Simmons'
bar application to the Board for consideration of whether
1) has demonstrated sufficient rehabilitation from her prior
criminal conduct and addictions which contributed to that
conduct, 2) now demonstrates that she conducts herself with a
high degree of honesty, integrity and trustworthiness in her
legal obligations, and 3) has the ability to conduct herself
in a manner that engenders respect for the law and that
adheres to the Washington Rules of Professional Conduct. In
short, has she met her burden of proving that she currently
has good moral character and fitness to practice law?
Mem. from WSBA Regulatory Servs. Dep't to Character &
Fitness Bd. 3 (Apr. 11, 2017) (Memorandum).
Board held a hearing on April 14, 2017. Simmons testified on
her own behalf and offered testimony supporting her
application from three people: the youth policy director for
the American Civil Liberties Union of Washington, a former
litigator and administrative law judge, and a currently
sitting superior court judge. Bar counsel presented no
evidence and made no recommendation. The Board recommended to
deny Simmons' application by a vote of six to three.
Subsequently, Simmons asked this court to review her
application and the Board's recommendation.
Simmons shown by clear and convincing evidence that she is
currently of good moral character and possesses the requisite
fitness to practice law?
Admission and Practice Rules (APRs) comprehensively guide the
Board's recommendation and our ultimate
decision. They do not, however, specify the standard
by which we review the Board's recommendation, and we
have not published an opinion on this topic in over 30 years.
See In re Wright, 102 Wn.2d 855, 690 P.2d 1134
(1984); In re Belsher, 102 Wn.2d 844, 689 P.2d 1078
(1984). We therefore first consider the appropriate standard
of review, and take this opinion as an opportunity to provide
clarity and guidance for the many bar applications that are
not decided by published opinions.
and amici argue the standard of review is de novo and that
the Board's recommendation should remain
'"advisory only.'" Belsher, 102
Wn.2d at 854 (quoting In re Simmons, 81 Wn.2d 43,
45, 499 P.2d 874 (1972)). We agree. Our most recent opinions
in bar admissions cases are clear that this court has the
exclusive authority to decide bar applications in the first
instance. Wright, 102 Wn.2d at 857;
Belsher, 102 Wn.2d at 854. The current APRs are
consistent with these prior holdings, providing that
"[t]he Supreme Court of Washington has the exclusive
responsibility and the inherent power to establish the
qualifications for admission to practice law, and to admit
and license persons to practice law in this state." APR
the WSBA agrees that the de novo standard should apply, it
also asks this court to "consider whether to apply the
'substantial evidence' standard of review to the
Board's factual findings in character and fitness
matters." Answering Br. of WSBA at 28. After due
consideration, we decline.
WSBA points out that the Board's recommendation in bar
application cases is similar to that of the hearing
officer's recommendations in attorney discipline cases,
where findings are explicitly reviewed for "substantial
evidence." Rules for Enforcement of Lawyer Conduct (ELC)
11.12(b), 12.4(a)(3). We note there are some similarities
between attorney admissions and attorney discipline in terms
of procedures, but the APRs do not explicitly refer
to substantial evidence or to any other standard of review.
We therefore adhere to our precedent holding that
"[w]hile the findings and recommendations of the [Board]
that petitioner is fit to practice law are entitled to
considerable weight, they are not conclusive."
Belsher, 102 Wn.2d at 854. Our review of the
Board's recommendation is de novo.
are "entrusted with anxious responsibilities" to
safeguard their clients' money, their confidences, and,
in some cases, their lives. Schware v. Bd. of Bar Exam
'rs, 353 U.S. 232, 247, 77 S.Ct. 752, 1 L.Ed.2d 796
(1957) (Frankfurter, J., concurring). To protect against
abuses of trust, anyone who seeks a license to practice law
in Washington "must be of good moral character and
possess the requisite fitness to practice law." APR
while "good moral character" is essential for the
ethical licensed practice of law, "[s]uch a vague
qualification, which is easily adapted to fit personal views
and predilections, can be a dangerous instrument for
arbitrary and discriminatory denial of the right to practice
law." Konigsberg v. State Bar, 353 U.S. 252,
263, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). Therefore, in 2006,
we revised the APRs and defined "good moral
character" and "fitness to practice law" and
provided detailed guidance on how to assess an
applicant's character and fitness. APR 21, 22.
current APRs provide for a preliminary review by bar counsel
of all applications that indicate a possible character and
fitness concern. APR 22.1(a)-(b). After gathering further
information and conducting a review, bar counsel refers to
the Board for further investigation and a hearing "any
applicant about whom there is a substantial question whether
the applicant possess[es] the requisite good moral character
and fitness to practice law." APR 22.1(d). The Board
will then conduct further inquiries, hold a hearing, and
"[r]ecommend the approval or denial of an
applicant's application." APR 23.1(a)(4). Where the
Board recommends approval, the application is automatically
reviewed by this court, which makes the final decision. APR
24.2(b)(1). If the Board recommends denial, the applicant may
ask this court to review and decide the application. APR
24.2(b)(2). In this case, bar counsel referred Simmons'
application to the Board, which recommended denial, and
Simmons requested our review. We now apply the revised APRs
for the first time in a published opinion.
Board's analysis relating to character and fitness
Board's determination of an applicant's character and
fitness is governed by APR 20-24. The specific rules that are
most relevant in this case are APR 20 and 21. As framed by
the Board, the question posed was "whether, in light of
Tarra Simmons' lengthy history of criminal and financial
issues, she has proved to the Board by clear and convincing
evidence that today she possess[es] the requisite good moral
character and fitness to practice law in the State of
Washington." Findings of Fact, Conclusions of Law,
Analysis & Recommendation (Board Majority) at 2.
Board entered in-depth findings of fact and conclusions of
law. supporting its recommendation. While we have reviewed
each of the findings and conclusions of law, our analysis in
this opinion is more limited because the Board's
recommendation, in most essential aspects, is correct and
unchallenged by the parties. As the Board rightly noted,
Simmons, the applicant, bears the burden of proving by clear
and convincing evidence that she is currently of "good
moral character" as that term is defined by APR 20(c),
and that she is currently fit to practice law and meets all
five essential eligibility requirements to do so in
accordance with APR 20(d)-(e). APR 24.1(c).
APRs define "good moral character" as "a
record of conduct manifesting the qualities of honesty,
fairness, candor, trustworthiness, observance of fiduciary
responsibilities, adherence to the law, and a respect for the
rights of other persons and the judicial process." APR
to practice law is a record of conduct that establishes that
the applicant meets the essential eligibility requirements
for the practice of law." APR 20(d). The ...