Dealing with Your Past: Disclosing Criminal Issues on Law School Applications

For some prospective law school students, the most stressful part of the application process isn't the essay or the LSAT. It's answering a question like this:

Are you currently under indictment, or have you ever been convicted, placed on probation, or given a deferred adjudication or diversion program for a criminal offense? Have you ever been arrested or cited for any criminal violation? If you answered "yes" to any part of the question, please include a separate sheet of paper explaining the circumstances and details of the incident.

That prompt, sometimes called the "disclosure" question in the application, can trigger fear in even the most well-credentialed law school candidate. What about that speeding ticket in high school? Does a fine for drinking in public count? What will it matter if I ignore that thing from college and answer "no"?

There are some important things to know about disclosure of conduct issues and how to answer this type of question. This should not be viewed as legal advice, but rather an overview of how to approach disclosure questions.

"What does it matter anyway?"

Law school applications require a signature certifying that the answers provided are "true and complete." They also warn that false, misleading, or incomplete answers may result in sanctions, including suspension, expulsion, or any other form of punishment deemed necessary by the university. But so what? The applications aren't signed under the pains and penalties of perjury. If you lie about a minor criminal matter that happened years ago, who would find out, and what could possibly happen?

The best answer is: it depends. It depends on whether you want to practice law, what you do in your life, and what type of companies and organizations you hope to work with. Below, the impact of the disclosure question is explained in more detail. As you'll read, the answer can affect you long after you are admitted to law school.

Instead of getting nervous and avoiding the issue by lying or omitting something in your applications, here are five rules for answering disclosure questions on your applications.

1. Read The Fine Print

The most frequent mistake made by applicants is not reading the entire question, or seeing the question and just assuming, "Oh, I know what they want here." Questions among applications vary. Some ask for only criminal "convictions," or incidents where you are "sentenced" or given "probation or deferred adjudication." If you were arrested for drinking in public and the case was dismissed when you paid money in court, you were never convicted or sentenced - so you need not disclose that on the application.

Other questions are phrased more broadly by asking about any incident in which you were "arrested, charged, cited, or summonsed" for a "criminal or civil offense." Such broad answers usually trigger disclosure of even the most mundane and inconsequential events (failure to signal, driving with a suspended registration sticker, noise complaints, etc.). Don't guess, and err on the side of disclosure. If you think you are supposed to disclose but aren't sure about the language, consult with someone who can help explain what the phrasing means and how to classify your incident.

2. Do Your Research

Few applicants need to have a legitimate concern about their criminal history. In most cases, the incident in question is so minor that admissions committees will pay little or no attention to it. Traffic violations (other than operating under the influence), noise / party violations, or drinking-in-public tickets, for example, are usually not considered significant by admissions committees.

Regardless of the seriousness of the offense, it's worth taking the time now - before you're dealing with a state bar - to order any paperwork you can about your incident. Getting your hands on a copy of the ticket, or criminal docket, or complaint from your case will be extremely helpful when you do apply to a state bar, as these documents are often required as part of your bar application.

Once you've gathered everything relating to the incident, take the time to read it all and identify what happened and what you should call it. If you were charged with something, determine whether it is a "civil" or "criminal" offense. If you accepted responsibility for something, figure out whether you "pled guilty," received a "deferred adjudication" (sometimes called a continuance without a finding, or a "nolo contendere" plea), or just had to pay a fine without making an admission.

If you don't feel confident that you know the proper terminology to describe what happened, don't hesitate to speak to a friend or relative who practices criminal law to help you sort out the details. It's not unreasonable to speak with a criminal attorney to make sure you've got it right. A small consultation expense up front is worth it to avoid aggravation in the future. Whether you do the work yourself or consult with an attorney, make sure you know what you did and what it's called before trying to explain it on a law school application.

If you have been charged with or convicted of something more significant - such as operating under the influence, indecent exposure, assault and battery, a domestic violence complaint, larceny or theft, etc. - calling the state bar where you hope to practice is a good starting point. It's unusual for a prospective attorney to have a criminal history that would disqualify him or her from admission to the state bar, but it's worth asking before you go through the expense and time of applying to law school. In addition, consultation with an attorney after gathering the relevant paperwork is not a bad idea.

3. Disclosure Does NOT Always Require Lengthy Self-Reflection

In almost all cases, disclosure requires some additional written material, such as an "addendum" or additional essay discussing the details and circumstances of the incident. The most common mistake made by applicants in these addenda is going overboard.

As a general rule, the more minor and distant the incident, the less is needed. If you stole a candy bar from a general store when you were 11 and received 10 hours of community service, your disclosure should be short and sweet. You don't need to call yourself a juvenile delinquent. If you sprayed graffiti on a wall in high school, explain what happened and acknowledge the mistake, but don't spend pages writing a discourse on the meaning of personal property or the fact that you now know the difference between art and graffiti.

If your incident happened within the last few years, or was more serious than those things mentioned above, it's OK to take a little bit more space to explain the incident. Make sure the details are included - the time and location of the incident, if you were eventually charged or arrested or cited, and the outcome. Still, it is usually not helpful to go into great detail about something that happened in the past.

First, it can sound defensive and disingenuous. Your disclosure should not be a diatribe against unlawful police conduct, or an explanation that amounts to, "Everyone was doing it, but I was the only one who got caught." If you're disclosing what happened, it usually means you were caught and were guilty of doing something wrong.

Second, the more time and space you devote to this essay, the more the admissions committees will read about it. Answer the question without making the issue a major part of your application. If you feel the need to go beyond a brief recitation of the circumstances of the event, make sure to be economical with your words and concentrate on explaining, not defending, your actions.

4. Don't Believe The Hype

There is great confusion about the criminal justice system and how criminal records are kept and disclosed. Many applicants with some incident in their past make the mistake of answering "no" on a disclosure question because they have been misinformed. If a friend, parent, sibling, police officer, or even an attorney has told you that an incident from your past is "sealed" or "expunged," do not assume they are correct. Rather, do the work up front to make sure you know what is and is not going to come out in your law school (or state bar) application process.

Some states automatically "seal" records in certain situations, including juvenile criminal cases. Others require a formal procedure or an application to seal or expunge a criminal record. In some states, there is no such thing as sealing or expunging a criminal record. In a few states, even "sealed" criminal cases show up on a full criminal background check for prosecutors and judges to see in the future. So does the state bar association in your state get to see that record, or some sanitized version of your record?

You may think you know what happens in your state. After all, that incident from when you were a child has been "sealed" for years, so it's not an issue. Even if you think you know because your neighbor's friend's cousin's uncle told you so, are you willing to bet all of the hassles described above on what he said?

The majority of states will allow you to order a copy of your criminal record (adult and juvenile) by submitting a written request and/or applying in person. Take the time to order your materials because the "advice" you got 10 years ago may no longer apply, or it may have been just plain wrong. The consequences of an incorrect disclosure are significant, so don't assume you've been advised correctly.

5. It's Usually About The Coverup

The disclosure of a minor criminal or civil violation in an applicant's past will usually not have a negative impact on his prospects for admission. This is especially true for driving offenses and civil infractions that resulted in a fine or community service. An incident involving a felony or dishonesty (fraud, larceny, financial crimes) can have more of an impact; applicants dealing with these issues should consult with their state bar and - if possible - a law school advisor to develop a strategy for dealing with the disclosure question. Finally, disclosure of an incident involving the possession, manufacturing, or distribution of illegal drugs should be treated carefully, since disclosure of narcotics offenses can have an impact on eligibility for financial aid.

 

With all that said, your approach to the disclosure question should focus on the long-range impact of your answer. A large number of state bar associations require submission of your law school application along with your bar materials. Why?

All state bars have what is called a "character and fitness" test which uses, among other things, your written paperwork (sometimes including your law school application) to assess whether you will be an honest member of the state's community of lawyers. These state bar materials are often signed under the pains and penalties of perjury, and almost always include a waiver that authorizes the state bar association to check your criminal record. So what happens if you failed to disclose a minor criminal issue on your law school application but it comes out in the character and fitness section of the bar application?

State bar associations look very unfavorably on inconsistencies and intentional misrepresentation. If you lied to your law school's admissions committee by signing your name and promising to make honest answers - and then lied anyway - how can anything you said in your bar application be trusted? How can you be deemed to have the character and fitness needed to be a member of the bar?

But the problems don't stop there. In some states, a discovery of such an intentional misrepresentation will trigger hearings in front of the board of bar examiners, including a face-to-face interview with the applicant in question. Some applicants consult with lawyers before the hearings, at great personal expense. Others are unprepared for the issue when it comes up in the hearing; after all, why would they warn you about catching you in a lie? And all of this comes at the tail end of a three-year journey that costs time, money, and energy. Oh, and you've just finished taking the bar exam.

It can get worse. State bar associations have close relationships with law schools, especially those found in-state. If an intentional misrepresentation is discovered, it's not unheard of for the bar association to notify the law school from which the applicant graduated. Remember that language from the law school application you filled out more than three years ago - the part that said failure to disclose can result in "...any other form of punishment deemed necessary by the university?" That can include rescinding your degree.

But let's say you failed to disclose an incident that isn't on your criminal record and the state bar never finds out. You pass the character and fitness section. Congratulations! You're a lawyer, and for now your omission has not been uncovered.

Fast forward 10 or 20 years when you have a house, a mortgage, children, and a successful law practice. You're nominated for a judgeship, or a government position, or a place on a sought-after corporate or community board, and the application involves a "full background check" and a review of your bar application (which includes your "disclosure" answer from law school...). Are you still happy with your decision to lie on the law school application?

You get the point. In most cases, your past will not be a hurdle to admission, but a lie or omission today on a law school application can have consequences far down the line.

Gregory Henning is a graduate of Harvard College and the University of Virginia Law School. After graduating from law school, he clerked for Judge R. Lanier Anderson of the United States Court of Appeals for the Eleventh Circuit and then became an Assistant District Attorney in Boston. As part of the Ivey Consulting team, Greg works with law school applicants. (Note that in this capacity, and on this blog, he dispenses admissions advice, not legal advice. If you need legal advice, do seek legal counsel. Do not confuse Greg or this blog or Ivey Consulting with legal counsel.)