Law School Case Brief
SCHWARE v. Bd. OF BAR Exam'rs OF N.M. - 353 U.S. 232, 77 S. Ct. 752 (1957)
A state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the due process or equal protection clause of the Fourteenth Amendment, U.S. Const. amend. XIV. A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Obviously an applicant could not be excluded merely because he was a Republican or an African American or a member of a particular church. Even in applying permissible standards, officers of a state cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory.
In 1953 the Board of Bar Examiners of New Mexico refused to permit petitioner to take the bar examination, on the ground that he had not shown "good moral character," and thereby precluded his admission to the bar of that State. It was conceded that petitioner was qualified in all other respects. Petitioner made a strong showing of good moral character, except that it appeared that from 1933 to 1937 he had used certain aliases, that he had been arrested (but never tried or convicted) on several occasions prior to 1940, and that from 1932 to 1940 he was a member of the Communist Party. The State Supreme Court sustained the Board’s decision.
Could the State Bar of New Mexico refuse to admit the petitioner to the practice of law on the ground of lack of “good moral character?”
The Court held that the petitioner was deprived of due process when he was denied the opportunity to qualify for the practice of law. The Court held that the mere fact that a person had been arrested had little probative value in showing that he had engaged in misconduct, especially where the arrests, relating in part to labor demonstrations, occurred more than 20 years ago and where petitioner was never formally charged or tried for any offense related to them. The Court held that neither petitioner's former use of aliases to forestall anti-Semitism in securing employment nor petitioner's past membership in the Communist party supported an inference of present bad moral character.
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