Law students' protest activities could become troublesome for bar admittance

Edward O. Lear, a professional responsibility lawyer in Los Angeles, has received calls in recent days from law students wanting advice on how their campus protests over the war in Gaza might impact their admittance to the California Bar.

Their questions for Lear were about nonviolent activities such as illegal camping and failure to disperse. But the students were concerned any disciplinary action their school might take against them would be looked upon unfavorably during the State Bar's moral character evaluation, Lear said.

Lear said his advice is: "The First Amendment controls" but "the facts matter."

"All bets are off if violence erupts. Of course, even in a circumstance of violence, the facts matter," he wrote in an email.

As campuses across the U.S. have exploded in recent days with protests over the war in Gaza, officials have responded with dispersement orders, suspensions, and having the police arrest them. The question of how State Bar examiners might look upon this activity, should any of these students want to become lawyers, has also arisen.

Some students protesting over Israel's response to the Oct. 7 terrorist attack have engaged in rhetoric that people have considered to cross a line of acceptable dissent. They chant "from the river to the sea" and call Israel a "colonial settler state," slogans that could be interpreted as a call for the destruction of Israel. Jewish students have been called Nazis and told to "go back to Poland." The protesters use Zionist as a slur and try to block supporters of Israel from parts of campus with the edict "no Zionists allowed."

The protesters say being opposed to the existence of Israel isn't equivalent to hatred of Jewish people. They point out that there are Jews involved in their protests.

Most of these protesters are not law students but some are, and others might one day aspire to be.

Offensive as this all is to many people, much of it is protected speech under the First Amendment and the State Bar has not said how it might view these statements in its examination of an applicant's moral fitness to practice law. The State Bar declined to provide anyone for an interview but said, "we plan to bring the matter before the Committee of Bar Examiners."

As anyone reading this newspaper is keenly aware, graduating law school and passing a bar examination does not automatically grant one a bar card. Applicants to the bar are required to disclose every arrest, charge, and conviction, even if those cases have been dropped or expunged. "Applicants are evaluated on an individual basis, and the specific facts of any potentially relevant incident are considered in making a determination on a moral character application," according to the State Bar.

All academic misconduct must be disclosed, too. Erin Joyce, a professional responsibility lawyer in Pasadena, said the State Bar Office of Admissions will get that discipline file directly from each educational intuition the student attended.

There is published case law relevant to the consideration of conduct in a political protest. The U.S. Supreme Court held that a state may not exercise its authority over bar admission in a way that impinges on the freedom of political expression or association. Konigsberg v. State Bar of Cal., 353 U.S. 252 (1957)

In that case, Raphael Konigsberg graduated from the law school at USC and passed the bar but was refused a license because he wouldn't respond to accusations that he was a communist who plotted an overthrow of the U.S. government. Konigsberg never admitted any of that. He argued that California law did not require him to disclose political associations or opinions to qualify for a bar card.

The case many lawyers point to was that of Terence Hallinan, who would eventually become district attorney in San Francisco.

Hallinan was denied a law license in 1965 after he graduated from UC Hastings College of the Law and passed the bar because he had been arrested in London for protesting nuclear armament, in the American South for sit-ins for civil rights and in San Francisco for sit-ins in protest of the Red Scare. The California Supreme Court found that an applicant's arrests for nonviolent civil disobedience was not a basis for a finding of poor moral character. Hallinan v. Comm. of Bar Examiners, 65 Cal.2d 477 (Cal. 1966)

Hallinan, who grew up in a wealthy and well-connected family in Marin County, had a long history of run-ins with the law before he channeled a penchant for violence into social justice causes. California Supreme Court Justice Raymond E. Peters wrote in the opinion that reversed the State Bar that Hallinan had a "habitual and continuing resort to fisticuffs to settle personal differences." Hallinan and his brother ran a group of sailors off the road in Point Reyes and beat them up. That landed him in juvenile hall and then banned from Marin County. When he was 18, he punched the owner of a ski lodge. At UC Berkeley, he punched a fraternity brother who refused him entry into a party and broke another man's jaw during a fight at a bowling alley.

In law school, he brawled with rival protestors while picketing a meeting of the House Un-American Activities Committee and got into another fight at a meeting of the Young Democrats. While studying at the London School of Economics, Hallinan became interested in nonviolent protests. He joined the Campaign for Nuclear Disarmament and was arrested staging a sit-in outside the U.S. Embassy. When he returned to the United States, he joined the Student Non-Violent Coordinating Committee and was arrested twice for protest activities in Mississippi.

Back in San Francisco, he linked up with the communists and was arrested six times and convicted twice for civil disobedience related to his work with the Ad Hoc Committee to End Discrimination. That was in 1963.

Two years later, he sought admittance to the California Bar. The Committee of Bar Examiners held several hearings about Hallinan's fitness to practice law. The attention paid to the case was likely due largely to his family and their connections. His father, Vincent Hallinan, was a well-known union lawyer and presidential candidate for the Progressive Party. Hallinan's mother testified to the Committee of Bar Examiners that she thought her son's violent tendencies were the result of a thyroid deficiency or because he was bullied for his father's outspokenness against the Red Scare. State Assemblymen Willie Brown and John L. Burton both testified to the young Hallinan's good moral character.

The Committee of Bar Examiners was ultimately unpersuaded and denied him a law license. Hallinan appealed to the California Supreme Court, which overruled the bar. Hallinan went on to become a successful lawyer and represented several notable counter-culture figures, then served as a San Francisco County Supervisor and, in 1996, was elected district attorney. As DA, he opposed the death penalty and supported legalized prostitution and marijuana. He was defeated in 2004 by now-Vice President Kamala Harris.

Hallinan returned to private practice, mostly defending people charged with marijuana offenses. A denouement to the saga of his bar license is that he was briefly suspended from practice in 2014 for mishandling client funds and then permanently suspended in 2018 for failing to pass a professional responsibility exam. He died two years later.

Lear, the professional responsibility lawyer in Los Angeles who advised students related to the current protests, said "The analysis of moral fitness in the context of violence would include review of an applicant's specific conduct. Standing one hundred yards away from other students who are overturning a car is very different than being one of the students with his/ her hands on the car. The latter act is against the law and would have a profound impact on the evaluation; the former would not. Non-violent civil disobedience should not bar an applicant's admission pursuant to Hallinan.

"Hallinan suggests that the line is drawn by evaluating violence," Lear said, pointing to the opinion, which reads: "We do not believe that petitioner's participation in the civil disobedience here shown can be characterized as involving moral turpitude. If we were to deny to every person who has engaged in a 'sit-in' or other form of non-violent civil disobedience, and who has been convicted therefor, the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage. This should not be done."

Several lawyers who specialize in professional responsibility pointed to two more recent cases that they said might provide insight into how the bar would view objectionable activity in the current protests.

Last year, State Bar Court Judge Cynthia Valenzuela ruled that attorney Benjamin L. Pavone was protected by the First Amendment when he wrote in a court filing that an Orange County court commissioner's denial of his fee request was "succubistic." Valenzuela recommended that Pavone be suspended for 30 days and fined for other insults he made and a lack of remorse for his behavior. In the Matter of Benjamin Laurence Pavone, 20-O-30496 (State Bar Ct., filed Feb. 21, 2023).

Also last year, Los Angeles lawyer Marla A. Brown was acquitted of State Bar disciplinary charges bought because she wrote on Twitter that protesters should be shot for rioting and looting during the 2020 protests following the death of George Floyd in Minneapolis. State Bar Court Judge Dennis G. Saab ruled that Brown's 15 tweets - including "Shoot the protesters" and "They should be shot. And if it was your business you'd pull the trigger" - were protected speech. In the matter of Marla Anne Brown, 23-0-30270 (State Bar Ct., filed Mar. 3, 2023).

But the state Supreme Court wrote in Hallinan that "there are some distinctions between admission proceedings and disciplinary proceedings, the essential one being that in the former the burden is upon the applicant to show that he is morally fit, whereas in the latter the burden is upon the State Bar to prove that an attorney is morally unfit."

A 2017 article published in the NYU Review of Law & Social Change entitled "A Guide for Law Students Considering Nonviolent Civil Disobedience," warns that "law students who participate in nonviolent civil disobedience take on certain risks that members of the general public do not, including the possibility of an adverse character and fitness determination or delayed admission to the bar."

Joyce, the professional responsibility lawyer in Pasadena, said regardless of protesters First Amendment rights, engaging in offensive speech doesn't come "without a price."

"The marketplace of ideas will take care of that. You're not anonymous. It will follow that student her entire life. They're basically making themselves unemployable."