Reevaluating the Rules: New Amendments to Ohio Bar Character & Fitness Requirements Update Evaluation Process

As every licensed Ohio attorney knows, in order to be approved to practice law in this state—whether by motion or by examination—one must first participate in a rigorous vetting process.  Applicants must submit to finger printing, provide multiple recommendations, and disclose detailed minutiae about academic and employment histories, financial records, criminal backgrounds, and, until recently, information about their mental and psychological medical history (more on this below). After completing these comprehensive disclosures, applicants must then be interviewed by two members of the Ohio bar—complete strangers tasked with assessing each applicant’s vaguely defined “character, fitness, and moral qualifications.”  

This individualized vetting system is a valuable and worthwhile component of Ohio’s bar application process – it helps ensure that each attorney authorized to practice law in Ohio is one whose record of conduct warrants the respect of the courts, clients, and fellow attorneys. At the same time, there is no denying that the character and fitness evaluation process is intimidating for applicants and for some, can be downright frightening. After all, to be judged on objective criteria is one thing, but to stake one’s career prospects on a notion as subjective (and hotly contested) as morality is quite another.

For the same reason, the process can be trying for those members of the bar who conduct character and fitness evaluations. Pursuant to Rule I, Section 13 of the Rules for the Government of the Bar of the State of Ohio, the president of each local bar association shall appoint an admissions committee comprising at least three people who are responsible for investigating “the character, fitness, and moral qualifications of applicants for admission to the practice of law” and for reporting their “findings and recommendations to the Board of Commissioners on Character and Fitness.” The Cincinnati Bar Association’s admissions committee, currently chaired by Drew Hicks (Senior Litigation Counsel at Cintas Corporation), comprises several dozen Cincinnati-area attorneys. Before scheduling and conducting the required character and fitness interviews, these volunteers spend countless hours poring over voluminous application files and separate background reports generated by the National Conference of Bar Examiners for each applicant. Members of the admissions committee try to reach the appropriate conclusion and to make the best recommendation they can, but it is not always easy to determine what should and should not be considered, nor is always clear what conduct (or misconduct) can be excused and what cannot.

Fortunately for applicants and admissions committee members alike, the Supreme Court of Ohio has recently adopted two amendments to Rule I of the Rules for the Government of the Bar of Ohio designed to clarify and streamline the character and fitness evaluation process.  

The first amendment removes evidence of mental or psychological disorder as an enumerated factor for consideration related to an applicant’s character, fitness, and moral qualifications. An applicant’s mental health is now only relevant where there is associated conduct that calls into question an applicant’s character, fitness, and moral qualifications, such as a criminal offense, substance abuse issues, or financial irresponsibility. Although this amendment removes just one item from the long list of categories of information to be collected in the application process, the import of the revision cannot be overstated. Applicants who suffer from depression, anxiety, or any other mental or psychological condition can now seek treatment without any concern they will have to disclose a resulting diagnosis or have their “character, fitness and moral qualifications” scrutinized for the same. It is not clear whether that result was what motivated the Supreme Court of Ohio’s clarification, but any change that facilitates the provision of needed medical treatment is one that should be applauded.

The second amendment is equally laudable; the Supreme Court of Ohio expanded the list of impermissible factors for consideration in determining an applicant’s character, fitness, and moral qualifications to include gender, sexual orientation, gender identity and expression, and marital status. These factors supplement the previously enumerated impermissible factors of age, sex, race, color, national origin, or religion. It should be noted that Rule 8.4(g) of the Ohio Rules of Professional Conduct already prohibited attorneys from engaging in discriminatory conduct based on, among other things, gender and sexual orientation, but the Supreme Court of Ohio’s recent amendment removes any latent ambiguity from those generalized terms by articulating more precisely the factors that are off limits. More importantly, in a time when LGBTQ+ rights continue to be debated around the country and used as fodder in polarized political discourse, the Supreme Court of Ohio has sent a clear message to bar applicants that they are free to be themselves without risking an adverse determination in the licensure process.

Notably, these changes set Ohio apart from other neighboring states. Kentucky still requires disclosure of mental or psychological disorders, and neither Kentucky nor Indiana expressly prohibit discrimination based on sexual orientation, gender identity and expression.