Clearing the Last Hurdle: Character & Fitness Examinations in Tennessee

There is no better test of character than when you’re tossed into crisis.
That’s when we see one’s true colors shine through.
-Tess Gerritsen-

Admission to the practice of law in Tennessee is conditioned, among other things, on satisfaction of a character and fitness requirement.¹ This is typically the last major hurdle in the application process. There are no rigid standards, but “[a]n applicant shall not be admitted if the Board finds reasonable doubt as to that applicant’s honesty, respect for the rights of others, and adherence to and obedience to the Constitution and laws of Tennessee and the United States and concludes that such applicant is not likely adhere to the duties and standards of conduct imposed on attorneys in this State.”²

The Tennessee Supreme Court is the ultimate arbiter in the decision to admit or deny an applicant and has established rules for the character and fitness evaluation process. The Court created the Tennessee Board of Law Examiners (hereinafter “Board”) to regulate the licensing of attorneys which includes the character and fitness element of the process.³

The application for admission to practice law in Tennessee requires applicants to register with the National Conference of Bar Examiners⁴ and disclose their histories, including any financial, criminal or disciplinary matters, and provide references. Each file is then assigned to an appointed committee member for investigation.⁵ The investigation includes an in-person interview with the committee member.⁶ Many applications sail past this stage, but when something in an application catches a committee member’s attention, additional information may be requested.

This is the first sign that an application may be in jeopardy. It is important to take the committee member’s questions seriously, to respond promptly and thoroughly, and to bear in mind that the committee member will likely attempt to verify information to corroborate what the applicant has stated. For better or worse, few applicants consult a character and fitness attorney at this point, and as a result, may be taking risks that compound the process as it moves forward.

The committee member will next submit a report to the Board and “shall recommend fully, recommend with reservations, or not recommend the applicant for licensing and admission.”⁷ If the Board determines that “(1) grounds for doubt exist as to whether an applicant: (A) meets the applicable standard for character and fitness under section 6.01 or (B) has adhered to the duty of candor under section 6.04; or (2) sufficient evidence has been provided to the Board that the applicant provided false information or refused to provide information requested by the Board, or its investigators, staff, or agents, the Board shall issue an order requiring the applicant to show cause why the applicant should not be denied admission or the opportunity to take the examination as the Board may determine.”⁸ A hearing will be scheduled in the Show Cause Order.

Applicants must respond to the Show Cause Order in writing, under oath, and may include affidavits or other documentary evidence in support of their position.⁹ It is at this point that the services of an experienced attorney can be especially helpful. Hearings before the Board require special attention to detail as to the specific issue or issues raised by the Board.

Hearings before the Board are unusual in that there is no judge or jury that will decide the outcome. The members of the Board are the arbiters and the decision is based upon the concurrence of at least three members.¹⁰ Applicants “have the right to be represented by counsel and to present evidence and argument with respect to the matters in issue.”¹¹ The burden of proof in a show cause proceeding is on the applicant.¹² The Board is not bound by the Rules of Evidence, but instead may use discretion in the admission of evidence.¹³ After opening statements, the Board members take turns directing questions to the applicant. After all proof has been presented and an opportunity for closing statements is made, the Board will deliberate and render its decision. Prevailing applicants will often receive an oral announcement of the Board’s decision. All decisions, however, shall be made in writing and provided to all parties of record.¹⁴

An applicant who does not prevail after a hearing and disagrees with the decision may petition the Board for relief.¹⁵ Such petition must be sworn under oath, filed within 30 days of the Board’s decision, and must state with reasonable particularity the relief sought and grounds therefor.¹⁶ The petition may be supported by affidavits, documentary evidence, and/or a memorandum of law, and a hearing may be requested before the Board.¹⁷ The Board may grant a hearing, but may also deny such opportunity if it is not persuaded to change its decision. The final stage of appeal rests with the Tennessee Supreme Court.¹⁸

For the majority of applicants, the character and fitness process is simple and straightforward. For those with past issues which may raise questions, it would be worthwhile to consult with an attorney who handles such matters at the earliest stage. The time and cost of obtaining a law degree should not be jeopardized and retaining experienced counsel in such matters can help reduce the chances of failing to satisfy Tennessee’s character and fitness requirement.

¹³ See Tenn. Sup. Ct. R. 7, Sec. 13.03(e)
¹⁴ Tenn. Sup. Ct. R. 7, Sec. 13.06
¹⁵ Tenn. Sup. Ct. R. 7, Sec. 13.01(e)
¹⁶ Tenn. Sup. Ct. R. 7, Sec. 13.02(b)
¹⁷ Tenn. Sup. Ct. R. 7, Sec. 13.02(c)
¹⁸ Tenn. Sup. Ct. R. 7, Sec. 14.01