Re: Comments to Proposed California Supreme Court Rule Regarding Fingerprinting of Active Licensed Attorneys

Transcription

1 December 23, 2017 The State Bar of California Fingerprinting Rule Public Comment Office of General Counsel 180 Howard Street San Francisco, CA To whom it may concern: Re: Comments to Proposed California Supreme Court Rule Regarding Fingerprinting of Active Licensed Attorneys Thank you for the opportunity to submit comments to the proposed California Supreme Court rule regarding fingerprinting of active licensed attorneys. 1 For the reasons described below, the National Employment Law Project (NELP) and the NAACP Legal Defense and Educational Fund, Inc. (LDF) disagree with the proposed rule. Alternatively, we recommend specific modifications to the rule before it is finalized to ensure that individuals with arrest and conviction records disproportionately people of color are not unfairly deprived of the opportunity to practice law in California. NELP is a non-profit law and policy organization with more than 45 years of experience advocating for the employment rights of the nation s workers. NELP advocates for policies to create good jobs, expand access to work, and strengthen protections and support for low-wage workers and the unemployed. One of NELP s key programs focuses on fair chance hiring and licensing policies that reduce barriers to employment for people with arrest and conviction records. NELP has worked closely with advocates and policymakers throughout the country, including at the local and state level in California, to ensure that employment and occupational licensing policies contain strong protections for jobseekers with records and that such laws are actively enforced. LDF is a non-profit, non-partisan law organization, founded in 1940 under the leadership of Thurgood Marshall to achieve racial justice and ensure the full, 1 Proposed California Rule of Court Regarding Fingerprinting of Active Licensed Attorneys, State Bar. of Cal., Comment/Public-Comment-Archives/2017-Public-Comment/ (last visited Dec. 22, 2017).

2 fair, and free exercise of constitutional and statutory rights for Black people and other communities of color. LDF has been involved in precedent-setting and other important litigation challenging employment discrimination before federal and state courts. See, e.g., Lewis v. City of Chicago, 560 U.S. 205 (2010); Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Hithon v. Tyson Foods, Inc., 144 F. App x 795 (11th Cir. 2005). In its unanimous decision in Griggs, which LDF litigated, the U.S. Supreme Court recognized the disparate impact theory of liability in the employment context. LDF also challenges policies that exclude individuals with criminal records from jobs. See, e.g., Waldon v. Cincinnati Pub. Schs., 941 F. Supp. 2d 884 (S.D. Ohio 2013) (denying defendants motion to dismiss a disparate impact case alleging that Black former public-school employees were terminated for having been convicted of specified crimes under Ohio law); Mem. & Op. at 1, 46-47, Little v. Wash. Metro Area Transit Auth. (WMATA), No. 1:14-cv RMC (D.D.C. Apr. 18, 2017), ECF No. 186 (certifying a class of affected job applicants with respect to plaintiffs claim that WMATA s criminal background check policy is facially neutral, but has a disparate impact on Black applicants). On October 20, 2017, Tani G. Cantil-Sakauye, Chief Justice of the California Supreme Court, sent a letter to the State Bar directing it to consider and present to the Court any proposed court rules that may be appropriate to facilitate implementation of California Business and Professions Code, section That section was recently amended to authorize the State Bar to require any applicant for admission and any current member to submit or resubmit fingerprints to the California Department of Justice (DOJ) to obtain conviction and arrest information on the individual. 3 However, the amended California law does not obligate the State Bar to require submission or resubmission of attorney fingerprints to DOJ. 4 As described below, NELP and LDF believe the current proposed rule is inconsistent with the general trend toward increasing professional opportunities for individuals with conviction and arrest records and raises significant civil rights concerns. We also believe that the proposed rule is overbroad and vague. We strongly disagree with the Supreme Court s statement in its October 20 letter that requiring fingerprints of all applicants and active members is a critical component 2 Chief Justice Tani G. Cantil-Sakauye, Letter to President and Executive Director of State Bar of California Re: State Bar Fingerprinting (Oct. 20, 2017), 3 Cal. Bus. & Prof. Code 6054 (West 2018). 4 State Bar of California, Open Session BOT Agenda Item No. 701, Memo to Members of Board of Trustees from State Bar Staff at 2 (Nov. 3, 2017),

3 of public protection and strengthens the State Bar s discipline system. 5 There is no basis for the claim that requiring attorneys to submit their fingerprints in order to obtain updated arrest information on these individuals serves to better protect the public. The New Landscape of Federal and State Laws Protecting Individuals with Records The State Bar s proposed rule expanding the collection of arrest and conviction information on active licensed attorneys contrasts significantly with the trend in civil rights and occupational licensing laws to reduce employment barriers for the nearly one in three California adults who have an arrest or conviction record. 6 In California, African Americans are nearly four times more likely to be arrested for a felony than whites, and are nearly 11 times more likely to be incarcerated in the state s prisons. Latinos in California are also significantly overrepresented at all levels of the criminal justice system. 7 Over-policing is a primary driver of this overrepresentation: in Los Angeles, for example, African Americans and Latinos are not only more likely to be stopped by the police, but they are also more likely to be arrested when stopped. 8 Because of the extreme disparate impact of criminal background checks on people of color, in 2012 the U.S. Equal Employment Opportunity Commission (EEOC) updated its 1987 policy on employer use of arrest and conviction records. 9 The 2012 EEOC guidance interpreting Title VII of the Civil Rights Act of 1964 advises employers who consider arrest or conviction records in employment decisions to develop a targeted screen considering the nature of the conviction, the 5 Cantil-Sakauye, supra note 2, at 2. 6 California Governor Brown Signs Fair Chance Act, Extending Ban the Box to Private Employers, National Employment Law Project (Oct. 15, 2017), 7 Letter of Marc Bendick of Bendick and Egan Economic Consultants, Inc. to Fair Employment and Housing Council (Mar. 26, 2016). 8 Ian Ayres & Jonathan Borowsky, A Study of Racially Disparate Outcomes In The Los Angeles Police Department, ACLU S. Cal. (Oct. 2008), 9 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. Section 2000 et seq., U.S. Equal Employment Opportunity Commission (Apr. 25, 2012),

4 time elapsed since the conviction, and the nature of the job. 10 It also encourages employers to conduct an individualized assessment of applicants excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. 11 And in California, new regulations enforced by the Department of Fair Employment and Housing (DFEH) incorporate the EEOC s arrest and conviction guidance. 12 California is a national leader on a range of criminal justice reforms, including policies limiting the collateral consequences of excessive law enforcement measures that have most severely impacted communities of color. For example, on January 1, 2018, California will become the tenth state in the nation to require private and public-sector employers to ban the box (or remove questions regarding criminal history) on job applications, delaying conviction inquiries and background checks until the conditional offer stage of the hiring process. 13 The national movement to reduce the collateral consequences of a conviction or arrest record also includes reform of federal and state occupational licensing laws. 14 For example, in 2011, then-u.s. Attorney General Eric Holder sent a letter to all state attorneys general, noting that many laws and policies pertaining to individuals with convictions create unnecessary barriers to critical opportunities, including in employment and housing. 15 While he acknowledged that some consequences serve important public safety purposes, he urged the attorneys general to evaluate collateral consequences in their states with an eye toward how and where each state could eradicate burdens on individuals with records without compromising public safety. 16 Attorney General Holder also directed federal 10 Id. 11 Id. 12 Cal. Code Regs. tit. 2, (2017); Consideration of Criminal History in Employment Decisions Regulations, Fair Employment & Housing Council, (last visited Dec. 22, 2017). 13 Ban the Box, supra note 6; Cal. Gov t Code (West 2017). 14 Michelle N. Rodriguez & Beth Avery, Unlicensed and Untapped: Removing Barriers to State Occupational Licenses for People with Records, National Employment Law Project (Apr. 2016), Licenses.pdf; Maurice Emsellem, et al., Fair Chance Licensing Reform: Opening Pathways for People with Records to Join Licensed Professions, National Employment Law Project (Oct. 2017), 15 Office of the Attorney General, Letter to State Attorneys General (Apr. 18, 2011), 16 Id.

5 agencies to consider collateral consequences when proposing any new regulation or guidance. 17 The State Bar s move to expand background check requirements flies the face of the national and state trend toward policies that tailor collateral consequences to legitimate public safety concerns and encourage employment of people with records, recognizing that it ultimately benefits our economy and public safety. By failing to embrace this well-reasoned trend, the State Bar s new policy is likely to disproportionately affect attorneys of color, given that over-policing and overcriminalization have most severely impacted Black and Latinx communities. Key Concerns Related to the State Bar s Use of Arrest Records and the Moral Character Standard Of special relevance to the proposed rule, the EEOC cautions strongly against the use of arrest records, explaining that an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. 18 The EEOC makes clear that the fact of an arrest does not establish that criminal conduct has occurred... arrests are not proof of criminal conduct. 19 The new DFEH regulations and California Labor Code Section go further than the EEOC guidance and strictly prohibit employers from considering arrest records when making any employment decision. 20 Despite growing recognition that access to arrest records should be narrowly restricted in the employment context, the State Bar s proposed rule seeks to vastly expand the impact of arrests on California attorneys. We believe that existing law is more than sufficient to determine when attorneys have been charged or convicted of certain crimes that may impact their ability to serve their clients and the public. California law requires licensed attorneys to report felony indictments, charges, and convictions, as well as the certain misdemeanor convictions. 21 Attorneys are not required to report arrests; nor are they required to report every category of 17 See, e.g., Collateral Consequences, Federal Interagency Reentry Council (Aug. 2016), 18 EEOC Enforcement Guidance, supra note Id.; see also Schware v. Bd. of Bar Exam rs, 353 U.S. 232, 241 (1957) ( The mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. ). 20 Cal. Code Regs. tit. 2, (2017); Cal. Lab. Code (West 2017). 21 Cal. Bus. & Prof. Code 6068(o)(4)-(5) (West 2004).

6 misdemeanor conviction. 22 Thus, the circumstances in which an attorney is required to report involvement with the criminal justice system are far more limited than the proposed rule. We understand that State Bar staff believe that updated arrest information is needed to compensate for the failure of licensed attorneys to report certain charges and convictions as required by California law. 23 However, staff determined that, over a three-year period, only 29 felony convictions were not self-reported. 24 Of note, all 29 of those felony convictions were reported to the State Bar by courts, as the law also provides for other mechanisms to report attorney conduct other than self-reporting. 25 We believe that an average of ten unreported convictions a year cannot justify requiring nearly 190,000 attorneys (or all the licensed attorneys other than the 1,500 for whom the State Bar has previously retained fingerprint records), to provide their fingerprints, particularly given that members will be required to bear the costs, estimated to be $82 per attorney. 26 Indeed, we are aware of no other state that requires licensed attorneys to submit fingerprint records to generate subsequent arrest information. 27 Further, it is unclear from the proposed rule how arrest information will be considered by the State Bar. State Bar staff plan to issue rules to determine what additional steps need to be taken when they learn of new or undisclosed criminal history information for members, but no information has been disclosed as to how arrests will be considered or when attorneys will subject to disciplinary proceedings based on arrest information See Member s Report of Criminal Proceedings (Dec. 31, 2013), gs.pdf. 23 BOT Agenda, supra note 4, at Id. 25 Id.; see also Lawyer Regulation, State Bar of Cal., Discipline/Lawyer-Regulation (last visited Dec. 21, 2017). 26 BOT Agenda, supra note 4, at Earlier this year, the Texas Legislature passed Senate Bill 302, relating to the continuation and functions of the state bar, which went into effect on September 1, See S.B. 302, 85 Leg., Reg. Sess. (Tex. 2017), The criminal history section (Sec ), requiring each member of the state bar submit a complete and legible set of fingerprints, did not make it into the final bill. Texas Legislature Online, Legislation Text, S.B. 302, (compare House Committee Report version with Enrolled version). 28 BOT Agenda, supra note 4, at 5.

7 We are also concerned with the overly broad and vague standards that the State Bar has set forth in defining the offenses that are are presumed not to be of good moral character in the absence of a pardon or a showing of overwhelming reform and rehabilitation. 29 According to the State Bar, these include violent felonies, felonies involving moral turpitude, and crimes involving breach of fiduciary duty. As the EEOC emphasized in the 2012 arrest and conviction guidance, the standards should take into account the persuasive redemption research documenting that six or seven years after release, the likelihood of committing an offense was only marginally higher for a formerly incarcerated person than for the general population. 30 More recent research concluded that, after a relatively short time, ranging from three to seven years for different offenses, the probability of a new arrest for individuals with records fell even below the probability for the general population. 31 Thus, the State Bar s moral character determination should be more closely aligned with the standards set forth in the EEOC guidance, which have evolved to take into account the latest research and best practices regulating criminal background checks for employment. Recommendations to Modify the Proposed Fingerprinting Rule For the reasons described above, we urge the State Bar to abandon the proposed rule requiring the collection and retention of fingerprint records to generate subsequent arrest information on active licensed attorneys. Alternatively, we recommend that the State Bar rule be modified to incorporate the following protections. 1. Tailor the rule to be consistent with existing law. Individuals generally cannot be denied a professional license because of an arrest. The rule should be limited to collect information that could form the basis for denying or revoking an attorney license, such as convictions, or, in the very least, formal charges. 29 Factors Regarding Moral Character Determination, State Bar of Cal., (last visited Dec. 22, 2017). 30 Megan C. Kurlycheck, et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology & Pub. Pol y 483, 483 (2006), 31 Alfred Blumstein & Kiminori Nakamura, Extension of Current Estimates of Redemption Times: Robustness Testing, Out-of-State Arrests, and Racial Differences 37, 41 (Nov. 2012),

8 2. Specify how arrest information will be considered. If the State Bar declines to tailor the rule to those categories of information that members are required to report, it must specify how arrest information will be considered for disciplinary purposes. 3. Clarify that the proposed rule does not authorize notification of subsequent arrests connected with FBI records. The State Bar should clarify that the proposed rule is limited to the retention of fingerprints for the purposes of notifying the State Bar of subsequent arrests related to state DOJ records, not FBI records as well. While current California law authorizes DOJ to retain fingerprints to report subsequent arrests reported in the FBI records (called rapback ), 32 DOJ has not exercised its discretion to begin implementing the policy. Thus, no California licensing boards or certification agencies have received FBI rapback information, nor will the State Bar until it is authorized to do so by DOJ. 4. The State Bar should provide a copy of the record to the licensed attorney at the same time that the record is received by the State Bar. Under current California law, all employment licensing and certification entities (including the State Bar) must provide a copy of the full state and federal criminal history record (including a subsequent arrest or disposition notification) to an individual if the information is the basis for an adverse employment, licensing, or certification decision. 33 Rather than waiting until an adverse decision has been made based on the information, we urge the State Bar to provide a copy of the state and federal records to an attorney at the same time that it is received by the State Bar and offer the individual the opportunity to verify its accuracy. By doing so, attorneys with an arrest record will be in a position to take immediate corrective action where necessary, which will also ensure that the State Bar is not expending unnecessary time and resources evaluating inaccurate or incomplete information. In addition, it is only fair to provide the attorney with a copy of the information given that the attorney will be paying for the record under the proposed rule. 5. The State Bar should adopt strong and transparent procedures for members and applicants to challenge the accuracy of arrest records. In addition to providing the individual with a copy of the state and federal 32 Cal. Penal Code (a) (West 2016). 33 Id.

9 records when it is made available to the State Bar by DOJ, the State Bar should adopt strong and transparent procedures that maximize the opportunity for attorneys to challenge the accuracy of the record. Specifically, a customized form should be created to facilitate the appeal process, which should be prominently featured on the State Bar website along with a clear explanation of the individual s right to receive a copy of the state and federal record and the applicable appeal rights. 6. The State Bar should reevaluate its criteria for consideration of arrest and conviction information to give greater weight to the interests of members and applicants with records. As former Attorney General Eric Holder cautioned, the excessive law enforcement activities of the past several decades have had a devastating impact on communities of color. He accordingly urged states to carefully tailor their laws and policies to reduce or eliminate those that could impede successful reentry without community benefit. 34 As described above, the State Bar s policies go too far in penalizing people with records who are otherwise valued members of their communities. These concerns are supported as well by academics and commentators who specialize in bar admissions standards. 35 Thus, we urge the State Bar to reevaluate its criteria to ensure that the use of arrest and conviction information more fairly balances the respective interests of the public, bar applicants, and licensed attorneys. 34 State Attorneys General, supra note See, e.g., Deborah L. Rhode, Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings, Law and Society Inquiry, J. Am. B. Found. 2017, at

10 * * * Thank you for your consideration of these comments, and please contact us if we can provide additional information as the process develops. Sincerely, Maurice Emsellem Coty Montag (CA Bar No ) Elizabeth Lauren Avery (CA Bar No ) Kristen Johnson (CA Bar No ) Philip Mychael Hernandez (CA Bar No ) Michaele Turnage Young (CA Bar No ) Nayantara Mehta (CA Bar No ) Nana Wilberforce (CA Bar No ) Michelle Natividad Rodriguez (CA Bar No ) NAACP Legal Defense & Educational Fund, Inc. National Employment Law Project