Law students who have taken part in campus protests over the Israel-Hamas war may be subject to “moral character” considerations before they take the California bar exam.
The State Bar of California noted in a report this fall that actions by pro-Palestinian or pro-Israel protesters may come under scrutiny during the “moral character” review, a requirement for anyone who wants to take the bar exam and practice law.
“Violence or other conduct that infringes on the rights of others may not be protected by the First Amendment, and is legitimate grounds for inquiry and consideration in the moral character process,” the report states.
The report came out of a request from the bar’s board of trustees in May, addressing the possibility there will be some taking the exam “who received disciplinary action by schools, or were subject to civil lawsuits, criminal arrests, or prosecutions related to their participation in these protests.”
A state bar spokesperson confirmed to J. that it has received “several complaints” from attorneys and the public about suspect behavior of law students who have joined protests over the war since Oct. 7, 2023.
Law students have been vocal and active in local protests, some of which have become violent.
In April, a pro-Palestinian law student interrupted a dinner for graduating students at the home of the UC Berkeley Law dean Erwin Chemerinksy and his wife. Law school graduation in May was repeatedly interrupted by pro-Palestinian chants. In September, anti-Israel activists left flyers denouncing Berkeley law professor Steven Davidoff Solomon at a class he was teaching. Later that month, a far-right Israeli politician was hounded at a talk hosted at Berkeley Law.
Protesting itself is protected political speech under the First Amendment, Chemerinsky told J., but illegal activity tied to protesting is not.
“Imagine, for example, that a student engages in vandalism as part of a protest, destroying property or injuring others,” he said. Such behavior can be considered in a moral character review for bar exam applicants.
“What is tricky is being sure that it is activity that is not constitutionally protected,” Chemerinsky said.
The basic underpinning for the “moral character” review is to ensure that attorneys practice law ethically once they’re licensed, according to the state bar. The review may be unfamiliar outside of legal circles, but to law students it’s a known hurdle. Before taking the bar exam, aspiring lawyers must submit a statement offering their character for evaluation.
“‘Good moral character’ includes but is not limited to qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process,” according to the state bar.
If bar exam applicants have violated campus rules or committed criminal acts, the bar states, reviewers will examine several factors, including the severity and frequency of the actions. Lying about past actions can hurt an applicant.
The report surfaced publicly earlier this month ahead of a Committee of Bar Examiners meeting, where it was discussed. The report’s recommendation that moral character reviews “continue to consider protest-related activity” didn’t require a committee vote because it isn’t a policy change, according to the state bar spokesperson.
The report emphasized that the reviews must look at each case individually and cannot penalize anyone for protected political speech.
“The political beliefs that motivate an applicant’s participation in protests generally are not a proper basis for inquiry in the moral character process,” the report states, and an “applicant’s conduct during protests related to the Israeli-Palestinian conflict should be considered without regard to the applicant’s political motivations.”