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In re Bar Application of Simmons

Supreme Court of Washington, En Banc

April 5, 2018

In the Matter of the Bar Application of TARRA DENELLE SIMMONS.

          YU, J.

         Determining moral character as a credential for practicing law has a long and intriguing history.[1] 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.

         At this 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), http://www.ncbex.org/pubs/bar-admissions-guide/2018/mobile/index.html. 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.

         This 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.

         Simmons 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 day.[2] Order, In re Simmons, No. 201, 671-5 (Wash. Nov. 16, 2017). We now explain the reasons for our decision.

         BACKGROUND

         Simmons 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.

         Simmons 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.

         However, 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 to reentry.

         Simmons 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.

         Despite 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 Simmons

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).

         The 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.[3]

         ISSUE

         Has Simmons shown by clear and convincing evidence that she is currently of good moral character and possesses the requisite fitness to practice law?

         STANDARD OF REVIEW

         The Admission and Practice Rules (APRs) comprehensively guide the Board's recommendation and our ultimate decision.[4] 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.

         Simmons 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 1(a).

         While 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.

         The 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.

         ANALYSIS

         Lawyers 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 3(a).

         However, 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.

         The 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.

         A. The Board's analysis relating to character and fitness

         The 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.

         The 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).

         The 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 20(c).

         "Fitness 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 ...


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