From Admission To Discipline And The Choices We Make In Between

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One of the biggest fears that 3Ls have, in addition to flunking the bar exam, is flunking the character and fitness assessment for admission to the bar. This requirement may well be a reason those in law school and who have already graduated are reluctant to seek mental health services for fear of being rejected for admission on those grounds. And if that is the case, for even one law student or law school graduate, it is one too many.

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The Legal Profession Blog reports on two changes that the Supreme Court of Ohio is considering.

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Presently included in the fitness evaluation is whether there is any “evidence of mental or psychological disorder that in any way affects or, if untreated, could affect the applicant’s ability to practice law in a competent and professional manner.” The proposed rule change would eliminate that from an extensive list of factors when considering character and fitness for admission. A good first step that hopefully other jurisdictions will follow. For way too long, getting help for whatever reasons at whatever point in time, mental health concerns have been seen as a sign of weakness, both pre-bar admission and post. Too many deaths by suicide, so many cases of depression and substance abuse, and other mental health concerns may be changing that view or, at least, raising long overdue awareness. Not a moment too soon.

Another change that the Ohio Supreme Court proposes is to add as prohibited criteria to consideration of fitness to practice “gender, sexual orientation, and marital status.” Existing prohibited criteria already include age, race, color, national origin, and religion. Good idea to expand the prohibitions since, since I didn’t know that any of those listed have anything to do with the ability to practice law.

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Maybe, just maybe, our profession needs to open our eyes to the possibility that good lawyers, those who make a positive difference in society, can come from all sorts of backgrounds and not just from the traditional go to college, go to law school, pass the bar, and start practicing wherever you can land a job. There are those who have been incarcerated, graduated law school, passed the bar, and are practicing.

Maureen Oyenlobi, who is serving a life sentence, starts at ABA-approved Mitchell Hamline’s online law school this fall. Convicted under Minnesota’s felony murder rule, her appeals have been repeatedly denied while the shooter was sentenced to only 40 years and is eligible for parole. Disparity in sentencing based on sex? Nope, the felony murder rule is apparently at play here. I would bet that Oyenlobi will have a better understanding of the Constitution than certain others.

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Did anyone watch John Eastman’s testimony, if you could call it that, before investigators of the House January 6 Committee? He invoked the Fifth Amendment scores of times and apparently asked Rudy Giuliani to see if the outgoing president would consider him for a pardon. Pardon me. The transformation of Eastman from an exuberant rah-rah “let’s go” on January 6, 2021, to the schlubby-looking dude sitting next to his counsel during his testimony was a study in contrasts. Perhaps he realized when testifying that he now has a deck chair on the Titanic. Eastman has apparently been kicked to the curb by our former prez. Cheer up, you are not the first one to be so treated and undoubtedly not the last. Just ask other attorneys that Trump has treated similarly over time. Does the name Rudy Giuliani come to mind?

Didn’t anyone ever tell Eastman that a lawyer should not get involved in the client’s mishigas? You advocate for the client’s position (if and only if it’s grounded in law or a reasonable extension thereof and always fret about the possibility of Rule 11 sanctions). Where has Eastman been for the past decade or so? Didn’t he know or shouldn’t he have surmised that the words the former prez lives by are “what’s in it for me?”

I am always amused, if that’s the right word (and I am not sure it is), that peeps who think they can trash the Constitution when it serves their purposes are the first in line to claim rights (such as the Fifth, and I’m looking at you, Eastman) when needed. It’s akin to the person who kills both parents and asks for mercy from the court because he’s an orphan.

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The State Bar of California is investigating Eastman. With any luck at all, he will be enshrined in the State Bar rogues gallery of bad boys, along with Tom Girardi and Michael Avenatti. And please don’t tell me that it’s the water in SoCal that these guys drank. We don’t have any.

Considering the emotional testimony of the disgusting and unwarranted harassment of the two Georgia election volunteer workers, there is no such thing as the Golden Rule in Trumpland, nor would I expect there to be, nor is there any shame there in using whatever tactics are available on the theory that the ends justify the means. As bad as the conduct of Girardi and Avenatti has been, I hope the State Bar disbars Eastman for his conduct in trying to overturn the Constitution to suit one man’s rapacious needs. If not disbarred, then the oath we all have taken to support the Constitution will have been an empty one.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

Donald Trump, Health & Wellness, January 6, Jill Switzer, Legal Ethics, Mental Health