University of New Hampshire

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School of Law

Professor Mitchell Simon Examines Remorse, Bar Exam in Michigan State Law Review

In the most recent issue of the Michigan State Law Review, Professor Mitchell Simon examines disclosure and remorse in an article, “What’s Remorse Got to Do, Got to Do With it? Bar Admission for Those With Youthful Offenses.”

Professor Simon, who is known in the state and nationally for his work on issues of legal ethics, lawyer discipline and medical ethics, points out that character and fitness panels often require an applicant to express remorse for prior acts in order to be found qualified for the bar. This can lead to an applicant, who for example legitimately believes he was unjustly convicted of a youthful offense, to be strongly urged by others to express remorse, even if this is untrue.

“Inquiry into a bar applicant’s remorse in cases of youthful offenses fails to serve the underlying purpose of the process, and is likely to encourage deceit by applicants and produce ethical dilemmas for lawyers and law professors,” Simon writes. “Additionally, such inquiry muddies an already complex task and adds little, if anything, to the character and fitness committee’s ability to assess the applicant’s candor during the process.”

Professor Simon writes in the blog Legal Ethics Forum that he was inspired to research and write the article after experiences working with students led him to the realization that the process may be flawed:

“If you are the ‘ethics person’ at your law school or have represented applicants before your state’s Character and Fitness Committee, you have no doubt pondered how this somewhat mysterious admission process works,” Simon writes. “Most of us would like, when asked for advice, to be able to tell a young student . . . whether he or she is at risk of an admission denial or delay. I found that providing this type of advice was more difficult than I expected, since character and fitness cases are rarely published. Those that are published, at least on youthful offenses, offer little help since they fail to identify any type of consistent methodology on the impact of various underlying offenses.”

Professor Simon’s research led him to propose guidelines to improve this process, which he outlines in a paper he co-wrote with Nick Smith, an associate professor of philosophy at the University of New Hampshire and UNH Law alumna Nicole Negowetti, an assistant professor of law at Valparaiso University. That article, “Apologies and Fitness to Practice Law: A Practical Framework for Evaluating Remorse in the Bar Admission Process,” will soon be published in the Journal of the Professional Lawyer.

“Professor Simon’s recent article on the regulatory aspect of legal ethics is but one part of UNH Law’s demonstrated expertise in studying ‘ethics from all angles,’ ” said UNH Law Associate Dean Jordan Budd. “He joins our other national ethics experts – Kimberly Kirkland, who focuses on empirical analysis, and Dana Remus, whose work focuses on normative inquiry ­– to form one of the finest teams of scholars and teachers in the nation.”