QuikFacts (short law-related notes) now appear on the Publications page.

Nathan Dunlap death sentence reprieve executive order

New (February 2013), and critical, evaluation of Coloraodo DOC's Sex Offencer Treatment Program (SOTP).

Video clip of Phil Cherner's comments on Holmes case for KDVR-TV, July 24, 2012.

Phil Cherner is mentioned in this July 21, 2012 Denver Post article.

Phil Cherner is mentioned in this June 16, 2012 Denver Post article.

Phil Cherner is mentioned in this May 9, 2012 Denver Post article.

DOC has released a new report on solitary confinement. DOC uses "ad seg" at nearly 7 times the national average, but to its credit has cut the population by nearly 300 over the last few months.

There's a new report from the SOMB evaluating the effictiveness of standards-based sex offender treatment. The report concludes the data does not support the conclusion that the treatment reduces recidivism. "The policies prescribed by the Adult Standards and Guidelines for the management and treatment of adult sex offenders appear to limit sexual recidivism post–release from supervision for adult sex offenders who successfully completed either probation or parole. Notwithstanding the literature, the data alone does not provide sufficient independent evidence to support this claim and is therefore less conclusive." See the report at: http://dcj.state.co.us/odvsom/sex_offender/SO_Pdfs/2011%20Adult%20Standards%20and%20Guidelines%20Outcome%20Evaluation.pdf

Phil Cherner published an article in the February 2010 The Colorado Lawyer, which described in detail why felons sentenced in Colorado serve, on average, 70% of their sentence.

A copy of the article is available here.

In November Phil Cherner completed hosting "CSI Colorado in 2011" for CLE, Inc. Over 100 lawyers attended.

Over the years, Phil has spoken on numerous aspects of criminal defense, the law, and society. He has spoken before many of the area's leading legal groups.

The Colorado Bar Association, Denver Bar Association, and Colorado Women's Bar Association are among the groups that Phil Cherner has spoken before. Additional groups include the Criminal Defense Bar, Colorado State Public Defenders, and National Lawyer's Guild, among others.

In addition to being a highly-respected attorney in Denver, Phil Cherner is an avid photographer.

Photos by Phil Cherner have appeared in a variety of publications.

Some of Phil's photos were recently displayed at the Festimatge 2012 exhibition in Calella, Spain, in April.

Petra, Jordan

The ancient city of Petra, Jordan.

Visit the photography section of the site to see many examples of Phil's photography.

How To Become a Colorado Lawyer

Dealing with a "Character and Fitness" Inquiry


by Phil Cherner
April, 2012

Update January, 2014.  The board has promulgated detailed guidelines on the character and fitness inquiry.  Click here.

Update April, 2014.  Click here to see Regulation Counsel's discussion of the new web-based application process as it relates to a character and fitness inquiry.

Update July, 2014. The court has made major revisions to the admissions process. Click here for the rule change. I will update the article to reflect the changes as soon as time permits.

Introduction

Twice a year hundreds of applicants take the Colorado bar exam. On average, about three quarters of them pass. Every one of these folks has been to law school and dealt with the rigors that implies. They’ve probably taken an intense bar refresher course and put themselves through two days of the bar exam itself (not to mention the always popular MBRE). A fraction of them will receive a letter from the Board of Law Examiners asking them to come in for an interview regarding their character and fitness to practice law. The purpose of this article is to discuss that process and help applicants better prepare. If you've received one of these letters, or think you might, read on.

There are few, if any, reported cases so I am writing this largely from my experience of twenty-five plus years of representing applicants who seek to be admitted to the Colorado bar. In my experience the inquiry panel is looking for the individual’s present ability to function competently as a lawyer. Past transgressions are important but only to the point that the demonstrate the applicant’s present moral qualifications. Put another way, the more time that has passed between the misbehavior and the application the better. I suppose there are some things that would permanently disqualify someone from ever practicing, but our admissions process is willing to consider a vast range of misconduct if the applicant can demonstrate rehabilitation. The key is rehabilitation. It requires an acceptance of responsibility for the misconduct together with appropriate steps to demonstrate present good character.

References in this article are to the Colorado Rules of Civil Procedure (“C.R.C.P.”).

The Process

Pursuant to C.R.C.P. 201.6, the Board reviews applications for moral and ethical fitness to practice. If questions are raised in inquiry panel was convened. C.R.C.P. 201.9(1). Some of the common things that are likely to trigger an inquiry are prior criminal conduct, substance abuse (or a combination of the two such as DUI), financial problems, mentally health issues and other assorted concerns. Isolated instances of misconduct often do not bring further scrutiny; the Board seems to look for patterns. The rules specifically list some issues such as felony convictions, declarations of incompetency by a court, and so forth. C.R.C.P. 209.4. After an interview, the inquiry panel has thirty days to make an determination that there is probable cause to believe that the applicant is not fit to practice. C.R.C.P. 201.9(6)(a). In this situation, the applicant can appeal and have a formal hearing. 201.10. If the inquiry panel determines there is not probable cause to believe the applicant is unfit, the board will certify the applicant may be admitted. C.RC.P. 201.9(7).

The bar application asks for sensitive information in a number of ways, such as prior litigation, criminal accusations (including those not resulting in a conviction) mental health issues, financial problems, etc. Candid and complete answers are essential. People v. North, 964 P.2d 510 (Colo. 1998)(public censure for material omissions on bar application); People v. Culpepper, 645 P.2d 5 (Colo. 1982).

Candor in the Application Process

Law school teaches us to think carefully and analyze the effect of our decisions like chess players. A natural offshoot is the desire to provide as little information as possible when we’re asked for sensitive information. After all, we reason, if the other side doesn’t have the bad facts, they can't hurt us. While this is sometimes a good litigation strategy it’s exactly the wrong approach for bar applicants, for a number of reasons.

The Board of Law Examiners spot checks applications. That means there’s a chance that they’re going to find out the bad information even if you don’t tell. The consequences of failure to disclose are often much worse than the disclosure itself. More broadly, with the focus on the applicants present abilities and moral fitness, disclosure itself is a sign of both honesty and rehabilitation. Therefore, if the application question is not clear, it's usually best to err on the side of full disclosure. And, the bar application is confidential, C.R.C.P. 201.4(1), 202(11), so your boss is not likely to see it.

If it’s not too late, consider this approach in your law school application. Applicants tend to want to hide bad news about their past, but this can come back to haunt them when they apply for the bar. Of course, there’s a tension between being too candid at the law school stage and getting admitted. Applicants in this situation might want to seek legal advice.

What the Board’s Looking for in an Applicant

Of course the board's looking for individuals that are morally and ethically qualified. The ideal candidate would have no criminal history, no substance abuse problem, have always paid their bills on time, and perfect mental acuity. Most of the candidates actually meet this profile. However, some don’t. It's this pool of applicants that is screened more closely. The board would like to catch grievances before they happen, thereby protecting the public.

A key part of the admission process is acceptance of responsibility. Individuals that minimize their pat misbehavior are less likely to get admitted and less likely to engage in meaningful rehabilitation. For example, individuals with a number of alcohol related contacts with the criminal justice system, even minor ones that didn’t lead to conviction, are seen by the admissions personnel as having an alcohol problem. No one wants lawyers to harm clients, be grieved, be disciplined or be disbarred so the admissions personnel take the well-thought position that excluding the people who are likely to cause trouble is better than disciplining them after they become attorneys. Those individuals who recognize their alcohol (or other) problem, go through a course of treatment and establish a track record of abstinence and good behavior are much more likely to get admitted than those who are in denial or get no help. Every interview panel includes at least one mental health professional. It's surprisingly easy to spot the individuals who have alcohol difficulties, and not terribly more difficult to weed out those who don’t accept their problem and get help.

The practice of law is stressful. Substance abuse and other character issues can be triggered by stress, another reason the board looks closely at these traits.

Adding the carrot to the stick, in my experience applicants who earnestly seek help are almost always get admitted.



The Problem

Let’s look at an example. An individual who’s been convicted of DUI three years ago. It wasn’t a particularly egregious DUI, it had a low blood alcohol level, no accident and no aggravating conduct. If this stands alone, it might not even trigger inquiry. More commonly a DUI is one of a few, or even several, contacts that the applicant may have had with the criminal justice system. I often see them combined with tickets for minor in possession, disorderly conduct, and other minor criminal offenses (including incidents that don’t result in convictions) that are traced to intoxication. If the DUI appears to be part of a pattern of drinking, an inquiry is much more likely. Similarly, arrests for drug use and/or crimes raise eyebrows.

Other typical fact patterns include financial issues, mental health problems, spotty employment records, and other indications of instability in the applicant’s history.

The Solution

It cannot be stressed enough that the earlier an applicant recognizes the problem(s) and starts to deal with them the better. I recommend a handful of therapeutic and rehabilitative steps to raise the chances of admission. If the problem is suspected alcohol abuse the first thing to do is stop drinking. In fact, depending on the situation, it may be helpful to engage in monitored sobriety, i.e. random breath or other testing to prove that the applicant no longer uses. Second, a substance abuse evaluation by a competent professional followed by treatment as recommended. Third, the applicant should do their best to work in the legal field, as, say, an intern with a prosecutor or public defender, as a law clerk with a private firm, etc. Unlike in the stock market, past performance is a great predictor of future performance (of course). Applicants who do well working for law firms in a law clerk/paralegal/student capacity are often able to provide letters of reference that are credible and powerful.

Any letter of reference should have the following form: It shouldn’t be longer than a page or two. These things can pile up and lose their impact. The first paragraph should explain who the author is and what the author knows about the applicant. Letters in which the author acknowledges the “bad stuff” yet is still willing to offer a positive evaluation are much more powerful than letters that don’t. The second paragraph should focus on, in a general way, the good performance of the applicant in a legal setting despite the “bad stuff”. The third paragraph is best focused on one specific example of the applicant’s good behavior/conduct/performance in the legal arena. In contrast, letters that just say that the applicant is of good moral character or tend to generalize are not much help.

Forapplicants who have issues, the sooner they seek advice the better. A lot of remedial activity can take place even before law school and/or the bar exam is taken. A number of Colorado lawyers have felony convictions, for example. These can be overcome just like other character defects with the passage of time and the appropriate rehabilitative steps. Again, the Colorado process focuses on one’s present character and is less concerned with past behavior that has been adequately addressed.

The bar exam results are good for 18 months from the time they are announced, C.R.C.P. 201.14(1), providing needed space for applicants who are engaged in treatment. In this case the interview can be delayed for months to allow the applicant to improve their chances of admission. For applicants who feel blind-side by the self-realization the process has been known to trigger, this is particularly helpful.

What if the Panel Finds Probable Cause?

There is an appeal process for those for whom probable cause is found by the informal inquiry panel. At this formal administrative hearing witnesses testify under oath. Unfortunately many applicants do not seek counsel until this time, which is akin to first calling a lawyer after one's been convicted.

Because, absent an appeal, the findings of the inquiry panel become final, C.R.C.P. 201.9(6), the applicant may not reapply for admission for 5 years. C.R.C.P. 201.12. This five year penalty box can be devastating to someone who has worked so hard to graduate from law school, not to mention the expense. The penalty box is not triggered until the inquiry panel rejects the applicant. With this in mind, I have often suggested to applicants that they defer the informal inquiry panel until there is a reasonable chance that they will be admitted. Better to postpone things for months, or even a year or two, than to find yourself barred for five years by applying and being rejected.

Similarly, applicants rejected at the inquiry panel stage can successfully pursue the formal hearing because, in the interim, they have realized that rehabilitation is necessary and achievable. I’ve delayed these appeals sometimes as much as a year to give the applicant time to engage in treatment.

Quick Questions

Is a felony conviction a bar to admission to the practice of law in Colorado? Answer: No, but it can be considered by the board in determining whether or not the applicant is fit to practice. C.R.C.P. 201.10(6).

If the Board determines I’m in need of treatment, counseling, or some other form of “probation” can I be conditionally admitted? Answer: No, not at this time. The rules do not permit imposition of conditions upon admission.


Contact Phil Cherner to benefit from his knowledge and legal expertise.