The New York State Bar Association (NYSBA) is recommending a revision to the bar admission application, targeting the legality of a question about juvenile delinquency and criminal records.

According to the report compiled by the NYSBA House of Delegates, question number 26 of the application fails to comply with the New York State Human Rights Law and the Family Court Act, and may have a damaging effect on the diversity of incoming lawyers.

“The question has had a chilling effect on potential lawyers – especially people of color – which flies in the face of much-needed efforts to improve diversity at all levels of the legal system,” said T. Andrew Brown, the NYSBA’s president. “We have heard from deans and directors of law school admissions that people of color who want to become lawyers are reluctant to invest the considerable time and money to attend law school because they worry that they could be rejected for admission to the bar due to a police interaction.”

The House of Delegates suggested changing the wording of the question to clarify that sealed criminal records, juvenile delinquency and youthful offender proceedings, dismissed cases and arrests that are no longer pending and did not result in a conviction do not have to be disclosed.

The question in controversy asks applicants “Have you ever, either as an adult or a juvenile, been cited, ticketed, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law, or been the subject of any juvenile delinquency or youthful offender proceeding?”

According to the report, the question under review contributes to the exclusion of Black people, Indigenous people and people of color in the legal field and may discourage entrants to law school.

American Bar Association surveys found that only 5% of lawyers identify as Black, while making up 15% of New York’s overall population and 38% of arrests.

The ultimate decision as to whether to change the question rests in the power of Chief Judge Janet DiFiore.

Office of Court Administration spokesperson Lucien Chalfen said they “are still in the process of reviewing the input, comments and proposed language from the Working Group and others regarding question 26 on the bar exam admission application.”

The proposal was commended by advocates for reform to the admittance process including Unlock the Bar and Colby Williams, a 3L at CUNY School of Law and former co-chair of the Formerly Incarcerated Law Students Advocacy Association. The efforts, according to Williams, are just one small step towards an equitable legal system because even revisions to the system “will still allow other questions on character and fitness applications to ask about unsealed criminal convictions and other details which amounts to a highly discriminatory screening practice.”

You can read more about this issue here.

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