Law Students, Substance Use, and the “Character and Fitness” Review

Applicants who have a history of substance misuse face additional challenges to admission to the Oregon Bar, including the possibility of having to go through a “character and fitness” review and the fear that it may impact their future as a lawyer. However, it is important to know that disclosing a history of problem substance use on the Bar exam application is not an automatic bar to admission in Oregon, especially if the applicant has sought help. (See the sidebar: Interview With OSB Bar Admissions Manager.)

For example, Tom(1) is a lawyer who stopped drinking while in law school. “My life had become chaotic. While I hadn’t (yet) been diagnosed with an alcohol use disorder, I clearly had a problem. But I was lucky – I never had any legal consequences as a result of my drinking.” Tom got help from the OAAP and from other lawyers in recovery. “When I filled out my application, I felt it was important to be completely honest. I wrote that I had been sober for two years and that I was attending Alcoholics Anonymous. I let them know that I had a sponsor and had ‘worked the Steps.’ Apparently, based on my answer they were satisfied that I had dealt with the issue. They never contacted me; I didn’t have to provide any additional information, and I was sworn in that September.”

Alan’s circumstances were different. Upon passing the February exam, the Board of Bar Examiners questioned Alan’s character and fitness because of circumstances surrounding his past use of alcohol, including a conviction for DUII two years prior to his application. “I had no idea what to expect,” says Alan, a criminal and family law attorney. “Soon after I passed the Bar, I was interviewed by a panel of three Board members, consisting of two lawyers and a public member of the Board. It was much more formal than I anticipated. They asked a lot of tough questions about my past and my relationship with alcohol. The process felt pretty intimidating.”

Hugh, a criminal defense attorney who also went through the character and fitness investigation process, agrees. “If I could change anything about the process, I would make it more transparent, both in terms of expectations of the applicant and the decision-making criteria of the Board.” For instance, Hugh feels it would have been helpful to know in law school that the Board would likely require a period of complete abstinence for applicants who have a clear history of problem substance use. In his view, if he had known, it’s possible that he might have been motivated to seek help sooner.

At the time Hugh applied to take the Bar exam, he had been struggling with a serious alcohol problem since college. As a result of his drinking, he had been suspended from school as an undergraduate, had spent nights in a detox facility, and had been convicted of DUII. Hugh recalls, “A few weeks after the exam results were posted, an interview was held in which three members of the Board [of Bar Examiners] questioned me for around 45 minutes about my alcoholism, specific bad conduct, and plans for the future. Shortly thereafter, I got a call explaining that the Board was going to deny my admission.” However, Hugh was told he could request that the Board defer its decision, and, if he could demonstrate a year of sobriety, their decision “would likely be different.”

Hugh started the process of healing. Even though he relapsed twice in the first couple of months, he reported the relapses to the Board and they agreed to consider his case a year after his last relapse. Hugh remembers, “A bit more than a year later, I got a phone call explaining that my case would be on the Board’s agenda at its next meeting and that it would likely want to meet with me again.” Hugh sent a letter confirming his sobriety, and he was admitted without another interview.

As a result of their respective character and fitness investigations, both Hugh and Alan were conditionally admitted to practice law. Fortunately, Oregon is one of 24 states that have such “conditional admission” programs.(2) These programs allow appropriate applicants with a history of problem substance use to be admitted subject to certain conditions during the first few years of their practice. The programs may require conditions such as monitoring or supervision, treatment, continued abstinence, attending community-based support groups such as SMART Recovery or AA, and drug testing. For Hugh, this meant being supervised by a monitor appointed by the State Lawyer Assistance Committee (SLAC),(3) remaining abstinent, attending recovery meetings, and submitting to random drug tests. Alan had similar requirements, but he was also required to enter and complete an outpatient alcohol treatment program. At times, these requirements can feel like a burden. “Being a rural practitioner, there are not many treatment facilities or AA meetings close by,” says Alan, so he had to drive to a neighboring county for treatment and meetings. However, “I know that I excel with accountability and appreciate the opportunity for personal growth.”

For Hugh, the Bar’s character and fitness process was extremely helpful. “Looking back, the process was one of a confluence of factors that got me sober. I was referred to the OAAP and introduced to a community of lawyers in recovery, a profoundly important change in my life. These lawyers provided the ‘carrot’ – showing what a sober life in the law could be like – and the Board of Bar Examiners provided the ‘stick.’ Early in sobriety, I was not so steady, and the stick was important.”

  • Conditional admission programs help dismantle the stigma of mental health and substance use disorders as “scarlet letters.” Especially for law students, they send a meaningful message that even in the worst circumstances, there is hope; seeking help will not block entry into their chosen profession.(4)

For law students with concerns about problem substance use, the prospect of asking for help can seem daunting, especially with the Bar exam application on the horizon. According to a 2014 survey of law students, “potential threat to Bar admission” was the primary reason given for not seeking help for alcohol or drug issues.(5) “While I understand a student’s reluctance to seek treatment,” says Libby Davis, Associate Dean for Student Affairs at Lewis & Clark Law School, “avoiding treatment out of fear of creating character and fitness issues will not, in the short or long run, benefit a student. Proactively seeking treatment shows the applicant’s commitment to self-care and to being as well prepared as possible to meet the demands of serving clients and the community. Of even greater importance, going
through law school and into a professional career without addressing substance use issues adds extraordinary challenges to already challenging endeavors. I strongly encourage students to seek the help they need.”

There is one other thing Hugh would like other applicants with addiction issues to know: “I would not have been able to navigate the Bar’s character and fitness process or find my way to sobriety without help. My life was very dark and very narrow, and I was frightened to seek assistance. Frankly, I only reached out to the OAAP initially to give the Board the impression that I was serious about getting sober. The result was immeasurably more valuable.”

Bryan R. Welch, JD, CADC I
OAAP Attorney Counselor

The Oregon Attorney Assistance Program is a confidential counseling resource for lawyers, judges, and law students. If you are a law student who needs help with substance misuse or other mental health issues, or would like support while planning for or going through the character and fitness review process, call 503-226-1057 or 800-321-OAAP.

 

Endnotes
(1) The experiences of the lawyers in this article are their own. They should not be considered legal advice or predictors of outcomes in any particular case. Their names have been changed to protect their confidentiality.

(2) Comprehensive Guide to Bar Admission Requirements 2016, National Board of Bar Examiners and American Bar Association. https://www.americanbar.org/content/dam/aba/publications/misc/legal_education/ComprehensiveGuidetoBarAdmissions/2016_comp_guide.authcheckdam.pdf

(3) The State Lawyer Assistance Committee is a committee of the Oregon State Bar with authority to investigate and monitor lawyers whose substance abuse or mental health issues may impair their ability to practice law. It is not connected to the Oregon Attorney Assistance Program.

(4) National Task Force on Lawyer Well-Being (2017), The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, pg. 28. www.lawyerwellbeing.net.

(5) Organ, Jaffe, and Bender, Helping Law Students Get the Help They Need: An Analysis of Data Regarding Law Students’ Reluctance to Seek Help and Policy Recommendations for a Variety of Stakeholders, The Bar Examiner (December, 2015).