To:

From:
Re:
Date:

[Judge]
[yourself]
[case name or other reference]
[when submitted]
ISSUE:

Whether an applicant to the Florida Bar who is fully qualified for admission in every way should
not be admitted as lacking good moral character, under Article IV, section 19, of the Supreme
Court Rules Relating to Admissions to the Bar, because he is homosexual.
SHORT ANSWER:
An applicant to the Florida Bar who is otherwise fully qualified for admission should be
admitted despite homosexual orientation as possessing good moral character, under Article IV,
section 19, of the Supreme Court Rules Relating to Admissions to the Bar. Private
noncommercial sex acts between consenting adults are not relevant to prove fitness to practice
law. Admitting a homosexual orientation does not in any way compromise the purposes served
by denying morally unfit persons from the bar. Attorneys must protect their clients' interests and
not thwart the administration of justice: however, merely being homosexual does not in any way
affect this negatively because there is no rational connection between homosexuality and moral
unfitness.
DISCUSSION:
Article IV, section 19, of the Supreme Court Rules Relating to Admissions to the Bar
provides:
No person shall be recommended by the Florida Board of Bar Examiners to the
Supreme Court of Florida for admission to The Florida Bar unless he first
produces satisfactory evidence to the Board that he is of good moral character,
that he has an adequate knowledge of the standards and ideals of the profession
and is otherwise a fit person to take the oath and perform the obligations and
responsibilities of an attorney.

The United States Supreme Court described the term "good moral character" as
"unusually ambiguous," and warned that "Such a vague qualification, which is easily adapted to
fit personal views and predilections, can be a dangerous instrument for arbitrary and
discriminatory denial of the right to practice law." Konigsberg v. State Bar of California, 353
U.S. 252, 262-263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1957). Only a rational connection between
the qualification and the applicant's ability to practice law should exclude incompetent and
iniquitous persons from the legal profession to protect clients and to assure a credible bar. See,
e.g., Mitchell v. State Board of Law Examiners, 155 Mich. 452, 119 N.W. 587 (1909); Spears v.
State Board of California, 211 Cal. 183, 294 P. 697 (1930). In the present case, the applicant can
therefore only be excluded from the Florida Bar if his homosexuality itself bears a rationale
connection to the unfitness to practice law. To examine the nature of his homosexuality any
further would be arbitrarily discriminatory.
In assessing the reasonableness of the relation between homosexual orientation and moral
unfitness to be an attorney, the purposes promoted by ostracizing the morally unfit are
paramount. The layman must have confidence that he has employed an attorney who will
protect his interests. See Drinker, Legal Ethics, p. 89-188 (1953). Furthermore, society must be
guaranteed that the applicant will not thwart the administration of justice; therefore, if an
applicant has committed certain illegal acts in the past, he may represent a future peril to society
which would justify denying the applicant admission. Id. In the instant case, however, no
evidence exists of the applicant engaging in illegal acts and his mere preference for
homosexuality clearly does not threaten the societal exigencies of client interests and pursuing
justice. The Board of Bar Examiners may ask an applicant to respond to further questioning only
if, in good faith, it finds a need to assure itself that the applicant's sexual conduct is other than

noncommercial, private, and between consenting adults. See F.S.A. 800.02, Unnatural and
lascivious act (1979). The applicant here admitted his homosexual preference in response to
inquiry made at a hearing before the Board. He was not questioned about what sexual acts he
may have engaged in. Furthermore, no evidence was presented indicating that the applicant has
acted or plans to act on his sexual preferences.
The lack of any reasonable connection between moral unfitness and homosexuality has
already been discussed by Chief Justice Ervin of the Florida Supreme Court in a concurring
opinion in Florida Bar v. Kay, 232 So.2d 378 (Fla.1970). He states there that:
The present record contains no evidence scientific, medical, pathological or
otherwise suggesting homosexual behavior among consenting adults is so
indicative of character baseness as to warrant a condemnation per se of a
participant's ability ever to live up to and perform other societal duties, including
professional duties and responsibilities assigned to members of The Bar.
Id. at 379. Similarly, in the instant case, denying bar admission has been predicated solely upon
the applicant's homosexuality and there is nothing else at all to suggest unfitness. The applicant
graduated from an accredited law school, is already certified for admission to the Pennsylvania
Bar, and has passed all parts of The Florida Bar examination.
Accordingly, the applicant in the instant case is qualified for admission to The Florida
Bar under the provisions of Article IV, Section 19, of the Rules of the Supreme Court of Florida
Relating to Admission to The Florida Bar.