          TITE                                      This opinion was filed for record
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      CHSEFMJSriGE
                                                        SUSAN L. CARLSON
                                                      SUPREME COURT CLERK




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON




In the Matter of the Bar Application of                No. 201,671-5

TARRA DENELLE SIMMONS.                                 EN BANC


                                                       Filed:       APR 0 5 wn



      YU,J. — Determining moral character as a credential for practicing law has

a long and intriguing history.' While lawyers may have more work to do in regard

to how the public perceives our contributions to society, the evaluation of a bar

applicant's character is an important step toward building confidence in our legal

profession and our system ofjustice.

       At this point in time, every state bar has some form of certification of moral

character as part of its admission process. See Nat'l Conference of Bar Exam's

& Am.Bar Ass'n Section of Legal Educ. and Admissions to Bar,




      'See Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J.
491 (1985).
In re Bar Application ofSimmons, No. 201,671-5


Comprehensive Guide to Bar Admission Requirements (2018),

http://www.ncbex.org/pubs/bar-admissions-guide/2018/mobile/index,html.

Concerned with the morality of an applicant, the inquiry serves a legitimate interest

in protecting the public and preserving a certain degree of professionalism.

Nonetheless, we also know that throughout our history the standards used to assess

moral character have shifted as society's norms and moral codes have changed.

For example, categorical exclusions of women or rejection of applicants based on

race, ethnicity, or sexual orientation were once generally accepted. Butjust as we

have evolved in our understanding of humanity, we have also grown in our

understanding of what makes a bar applicant a person of good moral character

worthy of admission. Today, we affirm the principles that for purposes of bar

admission, a moral character inquiry is determined on an individualized basis and

that there is no categorical exclusion of an applicant who has a criminal or

substance abuse history.

       This case concerns a recent law school graduate's application to sit for the

Washington State Bar Examination. Tarra Denelle Simmons has a challenging

social history, including long-term substance abuse, multiple criminal convictions,

and two bankruptcies. However, in the approximately five and a half years

preceding her application to sit for the bar exam, Simmons successfully engaged in

treatment for her substance abuse and childhood trauma. She has undisputedly
In re Bar Application ofSimmons, No. 201,671-5


maintained her sobriety since September 2011 and has not been accused of any

criminal or unethical behavior since then.

       Simmons was entirely candid about her past when she applied to sit for the

summer 2017 bar exam, and she readily provided further information as requested

by counsel for the Washington State Bar Association(WSBA). Bar counsel

referred Simmons' application to the WSBA Character and Fitness Board (Board),

which recommended by a vote of six to three that Simmons' application be denied.

We then reviewed her application and the Board's recommendation, heard oral

argument on November 16, 2017, and granted Simmons' application in a

unanimous order later that day.^ Order,In re Simmons, No. 201,671-5(Wash.

Nov. 16, 2017). We now explain the reasons for our decision.

                                     BACKGROUND


       Simmons was bom to parents with substance abuse problems, and she grew

up in poverty, surrounded by crime. She was the victim of many acts of sexual

violence during her childhood and adolescence, and endured sporadic periods of

homelessness beginning when she ran away at age 13. As a juvenile, Simmons

was adjudicated for theft, possession of stolen property, and second degree assault.




       ^ Simmons partially waived her right to confidentiality in these proceedings. This
opinion therefore contains personally identifying information and is not redacted. Her
application file otherwise remains sealed. See Admission and Practice Rule(APR)24.1(g).
In re Bar Application ofSimmons, No. 201,671-5


       Simmons struggled with addiction for years, and her adult history includes a

2001 conviction for second degree assault and five 2011 convictions for organized

retail theft, unlawful possession of a firearm, and possession of controlled

substances. As a result of her criminal convictions, Simmons' nursing license was

placed on probationary status, she served a total of over three years in jail and

prison, and she underwent two bankruptcies and a foreclosure on her home.

       However, when Simmons was sent to prison in late 2011, she began

engaging in meaningful treatment for her trauma and addiction for the first time.

Since then, she has changed her life to a degree that can only be deemed

remarkable, both in terms of the efforts she has put forth and the positive results

she has achieved. Wash. Supreme Court oral argument.In re Simmons, No.

201,671-5 (Nov. 16, 2017), at 38 min., audio recording by TVW, Washington

State's Public Affairs Network, http://www.tvw.org. Simmons has maintained her

sobriety and conducted herself with complete openness and integrity over the past

six years. She has been candid about her past, demonstrating sincere remorse and

working diligently to make amends to her community as an outspoken advocate for

civil legal aid with a focus on assisting formerly incarcerated individuals facing

barriers to reentry.

       Simmons attended the Seattle University School of Law and became the first

student in her school's history to be awarded a two-year public interest fellowship
In re Bar Application ofSimmons, No. 201,671-5


from the Skadden Foundation. She graduated magna cum laude as a dean's medal

recipient in May 2017, and letters from faculty and classmates further make it clear

that Simmons was a substantial asset to the entire law school community. Letters

from her supervisors and colleagues also unequivocally state that Simmons

excelled and exhibited consistently ethical behavior in the five legal internships she

completed during law school, in addition to the volunteer and advocacy work that

she undertook for no course credit.


       Despite Simmons' about-face life choices, her extensive criminal history and

recent substance abuse nevertheless gave bar counsel reasonable grounds to refer

the matter for further consideration. Thus, counsel for the WSBA sent Simmons'

bar application to the Board for consideration of whether Simmons

      1) has demonstrated sufficient rehabilitation from her prior criminal
      conduct and addictions which contributed to that conduct, 2)now
      demonstrates that she conducts herself with a high degree of honesty,
      integrity and trustworthiness in her legal obligations, and 3) has the
      ability to conduct herself in a manner that engenders respect for the
      law and that adheres to the Washington Rules ofProfessional
      Conduct. In short, has she met her burden of proving that she
      currently has good moral character and fitness to practice law?

Mem. from WSBA Regulatory Servs. Dep't to Character & Fitness Bd. 3(Apr. 11,

2017)(Memorandum).

       The Board held a hearing on April 14, 2017. Simmons testified on her own

behalf and offered testimony supporting her application from three people: the
In re Bar Application ofSimmons, No. 201,671-5


youth policy director for the American Civil Liberties Union of Washington, a

former litigator and administrative law judge, and a currently sitting superior court

judge. Bar counsel presented no evidence and made no recommendation. The

Board recommended to deny Simmons' application by a vote of six to three.

Subsequently, Simmons asked this court to review her application and the Board's

recommendation.^

                                             ISSUE


       Has Simmons shown by clear and convincing evidence that she is currently

of good moral character and possesses the requisite fitness to practice law?

                                STANDARD OF REVIEW


       The Admission and Practice Rules(APRs)comprehensively guide the

Board's recommendation and our ultimate decision.'^ They do not, however,

specify the standard by which we review the Board's recommendation, and we

have not published an opinion on this topic in over 30 years. See In re Wright, 102

Wn.2d 855, 690 P.2d 1134(1984);In re Belsher, 102 Wn.2d 844,689 P.2d 1078



        ^ Over the WSBA's objections, we granted Simmons' requests to use her full legal name
in court filings, to hold oral argument in open court, and to armounce our decision in a published,
unredacted opinion. We also accepted a joint brief supporting Simmons' application from amici
American Civil Liberties Union of Washington, 48 other organizations, 34 Washington
attorneys, and 20 law school faculty members.
         The APRs were amended after the Board made its recommendation in this case. The
amendments increased uniformity in the application process for different types of legal licenses
and are not relevant to our analysis. This opinion therefore applies the current rules as amended
effective September 1, 2017. APR 20.1.
Inre Bar Application ofSimmons, No. 201,671-5


(1984). We therefore first consider the appropriate standard of review, and take

this opinion as an opportunity to provide clarity and guidance for the many bar

applications that are not decided by published opinions.

       Simmons and amici argue the standard of review is de novo and that the

Board's recommendation should remain '"advisory only.'" Belsher, 102 Wn.2d at

854(quoting/?? re Simmons, 81 Wn.2d 43, 45, 499 P.2d 874(1972)). We agree.

Our most recent opinions in bar admissions cases are clear that this court has the

exclusive authority to decide bar applications in the first instance. Wright, 102

Wn.2d at 857; Belsher, 102 Wn.2d at 854. The current APRs are consistent with

these prior holdings, providing that "[t]he Supreme Court of Washington has the

exclusive responsibility and the inherent power to establish the qualifications for

admission to practice law, and to admit and license persons to practice law in this

state." APR 1(a).

       While the WSBA agrees that the de novo standard should apply, it also asks

this court to "consider whether to apply the 'substantial evidence' standard of

review to the Board's factual findings in character and fitness matters." Answering

Br. of WSBA at 28. After due consideration, we decline.

       The WSBA points out that the Board's recommendation in bar application

cases is similar to that ofthe hearing officer's recommendations in attorney

discipline cases, where findings are explicitly reviewed for "substantial evidence."
In re Bar Application ofSimmons, No. 201,671-5


Rules for Enforcement of Lawyer Conduct(ELC) 11.12(b), 12.4(a)(3). We note

there are some similarities between attorney admissions and attorney discipline in

terms of procedures, but the APRs do not explicitly refer to substantial evidence or

to any other standard of review. We therefore adhere to our precedent holding that

"[w]hile the findings and recommendations ofthe [Board] that petitioner is fit to

practice law are entitled to considerable weight, they are not conclusive." Belsher,

102 Wn.2d at 854. Our review of the Board's recommendation is de novo.

                                      ANALYSIS


       Lawyers are "entrusted with anxious responsibilities" to safeguard their

clients' money,their confidences, and, in some cases, their lives. Schware v. Bd.

ofBar Exam 'rs, 353 U.S. 232, 247, 77 S. Ct. 752, 1 L. Ed. 2d 796(1957)

(Frankfurter, J., concurring). To protect against abuses oftrust, anyone who seeks

a license to practice law in Washington "must be of good moral character and

possess the requisite fitness to practice law." APR 3(a).

       However, while "good moral character" is essential for the ethical licensed

practice of law,"[sjuch 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, 353

U.S. 252, 263, 77 S. Ct. 722, 1 L. Ed. 2d 810(1957). Therefore, in 2006, we

revised the APRs and defined "good moral character" and "fitness to practice law"
In re Bar Application ofSimmons, No. 201,671-5


and provided detailed guidance on how to assess an applicant's character and

fitness. APR 21, 22.

       The current APRs provide for a preliminary review by bar counsel of all

applications that indicate a possible character and fitness concern. APR 22.1(a)-

(b). After gathering further information and conducting a review, bar counsel

refers to the Board for further investigation and a hearing "any applicant about

whom there is a substantial question whether the applicant possess[es] the requisite

good moral character and fitness to practice law." APR 22.1(d). The Board will

then conduct further inquiries, hold a hearing, and "[r]ecommend the approval or

denial of an applicant's application." APR 23.1(a)(4). Where the Board

recommends approval, the application is automatically reviewed by this court,

which makes the final decision. APR 24.2(b)(1). If the Board recommends denial,

the applicant may ask this court to review and decide the application. APR

24.2(b)(2). In this case, bar counsel referred Simmons' application to the Board,

which recommended denial, and Simmons requested our review. We now apply

the revised APRs for the first time in a published opinion.

A.     The Board's analysis relating to character and fitness

       The Board's determination of an applicant's character and fitness is

governed by APR 20-24. The specific rules that are most relevant in this case are

APR 20 and 21. As framed by the Board, the question posed was "whether, in
In re Bar Application ofSimmons, No. 201,671-5


light of Tarra Simmons' lengthy history of criminal and financial issues, she has

proved to the Board by clear and convincing evidence that today she possess[es]

the requisite good moral character and fitness to practice law in the State of

Washington." Findings of Fact, Conclusions of Law, Analysis &

Recommendation (Board Majority) at 2.

       The Board entered in-depth findings of fact and conclusions oflaw ■

supporting its recommendation. While we have reviewed each of the findings and

conclusions of law, our analysis in this opinion is more limited because the

Board's recommendation, in most essential aspects, is correct and unchallenged by

the parties. As the Board rightly noted, Simmons,the applicant, bears the burden

of proving by clear and convincing evidence that she is currently of"good moral

character" as that term is defined by APR 20(c), and that she is currently fit to

practice law and meets all five essential eligibility requirements to do so in

accordance with APR 20(d)-(e). APR 24.1(c).

       The APRs define "good moral character" as "a record of conduct

manifesting the qualities of honesty, fairness, candor, trustworthiness, observance

of fiduciary responsibilities, adherence to the law, and a respect for the rights of

other persons and the judicial process." APR 20(c).




                                            10
In re Bar Application ofSimmons, No. 201,671-5


       "Fitness to practice law is a record of conduct that establishes that the

applicant meets the essential eligibility requirements for the practice oflaw." APR

20(d). The "essential eligibility requirements" are:

           (1)The ability to exercise good judgment and to conduct oneself
       with a high degree of honesty, integrity, and trustworthiness in
       financial dealings, legal obligations, professional relationships, and in
       one's professional business.

             (2)The ability to conduct oneself in a manner that engenders
       respect for the law and adheres to the Washington Rules of
       Professional Conduct.


             (3)The ability to diligently, reliably, and timely perform legal
       tasks and fulfill professional obligations to clients, lawyers, LLLTs,
       LPOs, courts, and others.

              (4)The ability to competently undertake fundamental legal
       skills commensurate with the lawyer, LLLT, or LPO license applied
       for, such as legal reasoning and analysis, recollection of complex
       factual information and integration of such information with complex
       legal theories, problem solving, and recognition and resolution of
       ethical dilemmas; and

            (5)The ability to communicate comprehensibly with clients,
       lawyers, LLLTs,LPOs, courts, and others, with or without the use of
       aids or devices.


APR 20(e).

       The Board's determination of moral character and fitness is guided by 14

different factors enumerated in APR 21(a) as well as aggravating and mitigating

factors enumerated in APR 21(b). As directed by APR 21, the Board appropriately

considered Simmons' prior criminal conduct, her financial difficulties, and the


                                            11
In re Bar Application ofSimmons, No. 201,671-5


probationary status of her nursing license. After considering all of these factors,

the Board unanimously agreed that Simmons proved she met three ofthe five

essential eligibility requirements: "[t]he ability to diligently, reliably, and timely

perform legal tasks and fulfill professional obligations"; "[t]he ability to

competently undertake fundamental legal skills"; and "[t]he ability tp communicate

comprehensibly." APR 20(e)(3)-(5).

        However,the majority of the Board concluded that Simmons failed to meet

two of these five essential eligibility requirements: "[t]he ability to exercise good

judgment and to conduct oneself with a high degree of honesty, integrity, and

trustworthiness in financial dealings, legal obligations, professional relationships,

and in one's professional business" and "[t]he ability to conduct oneself in a

manner that engenders respect for the law and adheres to the Washington Rules of

Professional Conduct." APR 20(e)(1),(2); see APR 21(a)(1),(5),(7),(10),(12),

(13).^ We disagree with the Board regarding these two essential eligibility

requirements, and we therefore disagree with its ultimate recommendation in this

case.




         ^ The Board correctly determined that APR 21(a)(2),(3),(6),(9), and (11) are not at issue
in this case. We do not address APR 21(a)(4),(8), and (14) because even assuming (without
deciding)that they are relevant here, they would merely require consideration ofthe same prior
misconduct that we already consider in accordance with other relevant provisions.

                                               12
In re Bar Application ofSimmons, No. 201,671-5


B.     We disagree with the Board's assessment of Simmons' time in recovery and
       her attitude toward her prior conduct

       The majority ofthe Board thought that Simmons had not yet spent enough

time maintaining her sobriety and actively engaging in positive behaviors to

establish a record of conduct consistent with good moral character and fitness to

practice law. Second, the majority of the Board thought that "[sjome of the

attitudes she expressed in the record and at the hearing signal that her acquired

fame has nurtured not integrity and honesty, but a sense of entitlement to privileges

and recognition beyond the reach of others." Board Majority at 21. In light ofthe

entire record presented, we do not agree.

       1.     Simmons has been in recovery for enough time to establish a record of
              conduct showing her good moral character and fitness to practice law

       The "recency of the conduct," the "absence ofrecent misconduct,"

 and the "length of time in which the applicant has been in recovery" are all

mandatory factors for our consideration. See APR 21(b)(2),(9)(i),(ix). We do not

take lightly the length of Simmons' criminal history and substance abuse as

compared to the length oftime in which she has maintained sobriety, refrained

from misconduct, and worked actively to make amends for her past behavior. We

are also mindful that "this court's ultimate responsibility in matters relating to

admission of attorneys is to guard the public and its confidence in the judicial

system." Belsher, 102 Wn.2d at 850. However, we ultimately conclude that


                                            13
In re Bar Application ofSimmons, No. 201,671-5


Simmons' six-year record of complete sobriety, stable financial position,

exemplary conduct, complete candor, and demonstrated ability to recognize and

respond appropriately to situations that might lead to relapse is sufficient to

persuade the court that she is highly likely to remain on her current path when she

becomes a practicing attorney.

       a.     We decline to adopt a bright-line rule

       The parties have debated the merits of a bright-line rule for determining

sufficient rehabilitation or recovery (for example, creating a rebuttable

presumption after a certain number of years without relapsing or engaging in any

misconduct). Although we seek to provide guidance in this opinion, we decline to

adopt a specific time period as evidence of complete rehabilitation for all

applicants because ofthe individualized inquiry of character and fitness, and the

complexity of recovery.

       We acknowledge that the rules governing disbarment do have specific time-

based restrictions. E.g., APR 25.1(b)("No petition for reinstatement shall be filed

within a period offive years after disbarment."). However,the rules governing

new applicants do not. This is not an oversight. It reflects the fact that although

we are guided by the "common purpose" of protecting the public and the

profession in both new applications and reinstatements, Belsher, 102 Wn.2d at 851,




                                            14
In re Bar Application ofSimmons, No. 201,671-5


a new applicant with prior criminal or substance abuse issues is very different from

a reinstatement applicant who has previously been disbarred.

       In reinstatement eases, it has already been conclusively proved that the

applicants previously failed to fulfill their professional responsibilities so

egregiously that this court could not allow them to continue practicing law for the

safety ofthe public and the good of the profession. See In re Disciplinary

Proceeding Against Fossedal, 189 Wn.2d 222, 241, 399 P.3d 1169(2017). We

therefore do not allow previously disbarred attorneys to resume practicing law

without proof that "that they have overcome the weaknesses that produced the

misconduct for which they were disbarred." In re Disciplinary Proceeding Against

Hart, 118 Wn.2d 280, 289, 822 P.2d 264(1992).

       New applicants, meanwhile, do not have previous lawful experience as

independently practicing attorneys. See Wright, 102 Wn.2d at 861 (disapproving

of the applicant's prior unauthorized practice of law). Thus, unlike a previous

disbarment, prior misconduct by a new applicant rarely provides "conclusive

evidence" that the applicant lacks good moral character and is not fit to practice

law. Belsher, 102 Wn.2d at 851.

       Moreover, there is a punitive aspect to attorney discipline, and particularly to

disbarment. The time restrictions on seeking reinstatement serve not only to

protect the public but to penalize the disbarred attorney for abusing the trust ofthe


                                            15
In re Bar Application ofSimmons, No. 201,671-5


legal profession and his or her former clients. See Fossedal, 189 Wn.2d at 241.

New applicants have never held that trust. Therefore, instead of attempting to

punish them for their past misconduct ourselves, we consider the "sufficiency of

punishment" they have already received as one of many factors when we evaluate

their applications.^ APR 21(b)(9)(iii).

       Because the WSBA simply does not have any directly comparable evidence

by which to judge how new applicants will conduct themselves in the licensed

practice oflaw, cases involving new bar applicants must be considered in an

individualized manner. Specific time-based rules, or even flexible presumptions,

are not appropriate, and we decline to adopt any at this time.

       b.      We follow evidence-based practices for evaluative purposes

       Although we cannot adopt a generally applicable time-based rule, we are

presented in this case with current, credible social science research of undisputed

validity about the relationship between the duration of a person's sobriety and

positive conduct and the person's reduced likelihood of relapsing or recidivating.^

This research reveals that 86 percent of addicts who maintain their sobriety for at



       ^ In this case, it is undisputed that the legal, financial, and personal consequences
Simmons has already faced are sufficient punishment.
     '   APR 21(b)(9)(ix) actually mandates consideration of"expert opinion that the period of
treatment, recovery, or remission is adequate for the applicant to meet the essential eligibility
requirements for the practice oflaw" if the "length of time in which the applicant has been in
recovery or remission, where applicable,... is less than two years." And without question,
nothing precludes consideration of such information if more time has passed.

                                                 16
In re Bar Application ofSimmons, No. 201,671-5


least 5 years will never relapse, but that there is no further substantial decrease in

the likelihood of relapse after 10 years have passed. Michael L. Dennis, Mark A.

Foss & Christy K. Scott, An Eight-Year Perspective on the Relationship between

the Duration ofAbstinence and Other Aspects ofRecovery, 31 EVAL.Rev. 585,

604(2007); see also John M. Nally, Susan Lockwood, Taiping Ho & Katie

Knutson,Post-Release Recidivism and Employment among Different Types of

Released Offenders: A 5-Yearfollow-up Study in the United States, 9 Int'L J.

Grim. Just. Sci. 16(2014). Simmons has maintained her sobriety and exemplary

conduct for over six years at this point. The research presented therefore indicates

that she has reached the stage where her new positive behaviors are highly likely

(in fact, about as likely as they ever will be)to represent lasting change, rather than

the tenuous early stages of recovery. Contra Board Majority at 20-21 (describing

Simmons' efforts thus far as "tender," "still fragile," and "still in their infancy").

       Moreover, before Simmons was sent to prison in 2011, she lacked the

insight to realize she was addicted to her controlled prescription medications and

she did not meaningfully engage in any treatment for her childhood trauma and

lifelong substance abuse issues. However, upon Simmons' incarceration, she not

only engaged in treatment but advocated for opportunities to engage in further

treatment that would not normally be available to her because she was assessed at a

very low risk to reoffend. Simmons has also successfully developed a large.


                                            17
In re Bar Application ofSimmons, No. 201,671-5


dependable support network and has proved her ability to effectively implement
strategies minimizing any risk of future relapses, criminality, self-destructive

behaviors, or avoidable financial problems.

       In 2016, Simmons' updated substance abuse evaluation recommended no

further treatment and Simmons became the first person in Washington to be

awarded a "Certificate of Restoration of Opportunity" pursuant to chapter 9.97

RCW. The WSBA is explicitly exempt from affording the legal protections

granted by this certificate. RCW 9.97.020(l)(a)(i). We nevertheless consider it
reliable evidence that Simmons has maintained her exemplary conduct and has

earned the legal right to many employment opportunities or second chances that

would otherwise be unavailable due to her criminal history.

       We also take particular note in this regard of a letter supporting Simmons'

application from her pastoral counselor, which is reliable "corroborating
evidence[]of a desire and intent to engage in exemplary conduct in the future."

APR 21(b)(9)(vi). This counselor has known Simmons personally for over 20

years and wrote persuasively of Simmons' long, difficult, but ultimately successful
journey. This evidence weighs heavily against the argument that Simmons'
 misconduct is simply too recent, or that the number of years for which Simmons

 has maintained her sobriety is simply insufficient at this time.




                                             18
In re Bar Application ofSimmons,No. 201,671-5


       Finally, even though we are aware that being a licensed attorney is

challenging, we give considerable weight to the stress Simmons has already faced,
the extraordinary strength of character she has demonstrated, and the fact that she

has proved herself capable of handling high-pressure situations without relapsing
over the past six years. Simmons maintained her sobriety, stayed current on her

debts, and demonstrated exemplary conduct while handling the simultaneous

pressures oflaw school, commuting, motherhood, volunteer work, and APR 9

internships, and she excelled in every area.

       We therefore do not view the recency of Simmons' prior misconduct as a

negative factor, and we view favorably both her absence of recent misconduct and

the length oftime she has been in recovery given how far she has come to get to

this point.

       2.     Simmons has demonstrated candor, insight, and respect for the law
              showing her good moral character and fitness to practice law

       While the Board acknowledged that Simmons was completely candid and

accepted full responsibility for her prior conduct, the Board was concerned that

Simmons did not sufficiently understand the concerns raised by her prior

misconduct and that her success has engendered in her an inappropriate sense of

entitlement. These apprehensions raised questions for the Board about whether

Simmons has a record demonstrating "respect for . . . the judicial process," whether



                                            19
In re Bar Application ofSimmons, No. 201,671-5


she has shown the "ability to conduct [her]self in a manner that engenders respect

for the law," and her "attitude toward the misconduct, including without limitation

acceptance of responsibility and remorse." APR 20(c),(e)(2); APR 21(b)(9)(v).

Considering the entire record, we find that Simmons is candid, sincere, and

remorseful.


       a.     Simmons did not minimize her drug use

       The Board found that Simmons "minimize[d] her historical drug activities"

by failing to disclose in her initial bar application that she went through a six- to

nine-month period of substance abuse in 2005, which resulted in brief inpatient

treatment but no criminal charges or other direct, negative consequences. Board

Majority at 17. The Board also felt that Simmons did not adequately acknowledge

the concerns presented by a period beginning in 2009 during which she took opioid

and amphetamine medications as prescribed by her doctors for chronic pain and

mental health reasons. By 2011, Simmons was trading and selling those

medications in exchange for methamphetamine. We agree with the Board that

those periods of substance abuse are relevant concerns, but we do not agree that

Simmons attempted to minimize or conceal them.

       First, there was no question on the bar application that required Simmons to

disclose her 2005 substance abuse. Indeed, it is doubtful that any question in the

initial bar application lawfully could require such a disclosure given recent


                                            20
In re Bar Application ofSimmons, No. 201,671-5


amendments to the APRs in accordance with the federal Americans with

Disabilities Act of 1990,42 U.S.C. §§ 12101-12213. See GR 9 Cover Sheet; U.S.

Dep't of Justice, Office ofPub. Affairs, Department ofJustice Reaches Agreement

with the Louisiana Supreme Court to Protect Bar Candidates with Disabilities

(Aug. 15, 2014), https://www.justice.gov/opa/pr/department-justice-reaches-

agreement-louisiana-supreme-court-protect-bar-candidates [https://perma.cc/6J7C-

M9D4]. We must take an exclusively conduct-based approach to character and

fitness review, and the existence of"drug or alcohol dependence, a health

diagnosis, or treatment for either" cannot be an independent factor in the Board's

consideration or our own, and the existence of any such condition cannot be a

question on the bar application. APR 22.1(e).

       Nevertheless, when bar counsel determined that such information was

relevant in this case, Simmons readily provided her confidential medical records in

response, and she spoke openly about her 2005 substance abuse at her hearing with

the Board. The failure to voluntarily disclose information that, by federal law,

cannot be requested without specific justification does not evince an attempt to

conceal or minimize that information. We are therefore not concerned by the time

and manner in which Simmons disclosed her 2005 substance abuse to bar counsel

and the Board, and it is not a negative factor in our analysis.




                                            21
In re Bar Application ofSimmons, No. 201,671-5


        Second, the Board was concerned by Simmons' candid admission that when

she was taking addictive prescription medications, she was generally functional

and did not recognize that she had a problem. Verbatim Report ofProceedings

(VRP)(Apr. 14, 2017) at 144-45, 156-57. However, she now realizes that she was

addicted to those medications and knows that in the future, she cannot return to

such addictive behaviors. Id. Given Simmons' current depth of insight, her prior

■ lack of insight is not probative of her current moral character and fitness to practice

law.^

        b.     Simmons' attitude is not inappropriate

        The Board believed that Simmons demonstrated a "sense of entitlement to


privileges and recognition beyond the reach of others" based on her inquiry as to

whether her application needed to be referred to the Board and based on the public

recognition that she has received for her remarkable success. Board Majority at

21. We cannot agree with the Board's assessment.

        We wholeheartedly agree that Simmons has attained privileges and

recognition beyond the reach of others due to her hard work. For instance, she has




        ^ At oral argument, bar counsel contended that Simmons used the word "sorry" only once
at her hearing before the Board, evincing a lack of remorse. Wash. Supreme Court oral
argument,supra, at 44 min., 50 sec. We summarily reject the premise that this word count is an
appropriate basis on which to evaluate Simmons' moral character. We therefore also decline to
draw any inferences from the number oftimes that Simmons referred to her Skadden fellowship
or the Skadden Foundation at her hearing. Id. at 27 min., 26 sec.


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In re Bar Application ofSimmons, No. 201,671-5


the privilege of serving as cochair on the board ofthe Washington Statewide

Reentry Council, and the recognition of graduating magna cum laude as a dean's

medal recipient and the first Skadden fellow in her law school's history. Such

things are indeed beyond the reach of most others. But Simmons did not attain her

cun'cnt privileges and recognitions through entitlement. She earned everything she

has through dedication, talent, and a staggering amount of hard work. Simmons

-rightly takes pride in her extraordinary accomplishments, but there is no evidence

that she expects special treatment.

       The Board was concerned because it thought that Simmons referred to the

Board hearing as '"unnecessary"' and that this statement indicated Simmons

believed she was entitled to have her application granted without further inquiry.

Board Majority at 17. In her initial application to the WSBA,which was available

to the Board but directed to bar counsel, Simmons stated in part:

       "An unnecessary referral to the Character and Fitness Board would
       add little to assure the Washington Supreme Court of my current
       fitness and good character necessary to practice law, which is more
       than fully documented in this application and supporting materials . ..
       A referral to the Character and Fitness Board would be particularly
       harmful in my case because I have been awarded the Skadden
       Fellowship to serve the legal needs of a vulnerable population."




                                            23
In re Bar Application ofSimmons,No. 201,671-5


Answering Br. ofthe WSBA at 15 (alteration in original).^ We do not view this as

reflecting a belief by Simmons that the Board review process is unnecessary.

Rather, Simmons' language in her application is consistent with her testimony to

the Board that she was asking bar counsel to exercise its discretion to consider the

record and the circumstances presented and decline to refer Simmons' application

to the Board.^° VRP at 160-61;             APR 22.1(c),(d).

       Bar counsel apparently did not view Simmons' question about whether a

referral was necessary as a negative factor at the time because it was not mentioned

in counsel's referral memorandum to the Board, And when bar counsel decided a

referral was needed, there is no evidence that Simmons complained or protested.

Furthermore, at her hearing, Simmons "exhibited complete candor" and "was

thorough and thoughtful in her presentation." Board Majority at 15.

       We also note that there is absolutely no published case law about how bar

counsel decides whether a board referral is needed on the basis that there is "a


substantial question whether the applicant possess[es] the requisite good moral

character and fitness to practice law." APR 22.1(d); see Tom Andrews,Rob




       ^ The actual letter is not in the record available for our review, but we rely on counsel's .
unchallenged representation as to its contents as "the kind of evidence on which reasonably
prudent persons are accustomed to rely on [in] the conduct oftheir affairs." APR 24.1(e)(2).
          We also note that while Simmons eventually learned that her Skadden fellowship was
secure regardless ofthe Board's recommendation, it is undisputed that she did not have that
information when she applied to sit for the bar exam.


                                                24
In re Bar Application ofSimmons, No. 201,671-5


Aronson,Mark Fucile & Art Lachman,The Law of Lawyering in

Washington 2-20(2012)(noting that without published opinions, bar applications

remain "a guessing game for those who contemplate admission"). It may well

have seemed obvious to experienced bar counsel and members of the Board that a

character and fitness referral was inevitable in this case. However, it is not

reasonable to assume that a first-time applicant should have the same perspective,

even if the applicant received advice from a distinguished attorney when preparing

her application, as Simmons did.

       Asking whether a board referral was necessary under these circumstances

does not evince "a sense of entitlement to privileges and recognition beyond the

reach of others." Board Majority at 21. It evinces the type ofreasonable advocacy

any litigator could ethically exercise on behalf of his or her clients, and likewise

probably would exercise on his or her own behalf. It is entirely appropriate

conduct for a person who wants to be a lawyer.

       To the extent that the Board was also concerned that Simmons had

developed an unwarranted sense of entitlement due to her "acquired fame," we do

not share the Board's view. Board Majority at 21. Simmons' public recognition is

not evidence that she is acting for her own gratification or to satisfy her own ego.

The publicity that Simmons has received supports her continuing sobriety and

exemplary conduct and is an important component of her career mission.


                                            25
In re Bar Application ofSimmons, No. 201,671-5


       As Simmons explained at her hearing, the fact that she is well known in her

field supports her continued exemplary conduct, not only because it reinforces her

hard-earned sense of self-worth but also because it makes her accountable. VRP at

163, 166. Having a community support network to which she is accountable is

likely to remain an important positive factor in Simmons' life, as are her education

and her continued access to employment and stable housing. See generally Mark

T. Berg & Beth M. Huebner, Reentry and the Ties That Bind: An Examination of

Social Ties, Employment, and Recidivism, 28 JuST. Q. 382(2011); Jennifer E.

Cobbina, Reintegration Success and Failure: Factors Impacting Reintegration

among Incarcerated and Formerly Incarcerated Women,49 J. OFFENDER

Rehabilitation 210(2010); Byron Harrison & Robert Carl Schehr, Offenders and

Post-Release Jobs: Variables Influencing Success and Failure, 39 J. OFFENDER

Rehabilitation 35 (2004); Nally et al., supra.

       The work Simmons intends to do is also necessarily benefited by the

publicity her case has received. Simmons does not use the publicity she has gained

from her experience for personal recognition or to seek special favors. She uses

her experience to help others,just as she did when she sponsored other women on

their paths to sobriety in Narcotics Anonymous, which, as the organization's name

suggests, one does not do for the sake of publicity. Words about the possibility of

recovery and providing opportunities to those who have failed in the past are


                                            26
In re Bar Application ofSimmons, No. 201,671-5


undeniably not as powerful without specific individuals like Simmons, who prove

that rehabilitation is possible in both fact and in law. Particularly in this context, it

is unreasonable.to expect that an extraordinary applicant like Simmons could

comply with her duty to be completely candid without attracting significant public
attention.


       On the issue of Simmons' publicity and attitude toward her prior conduct,

jiwe also note a particularly relevant recommendation that the Board made in a

previous case, which was not decided in a published opinion. There, the Board

unanimously recommended to grant the application ofthe man who would become

one of Simmons' attorneys in this case, Shon Hopwood.'^

       Unlike Simmons, Hopwood grew up in a relatively emotionally and

financially stable family. He did not struggle with addiction or abuse, but he did

struggle personally and financially. After his honorable discharge from the United



       '' We do not mean to imply that just because any one application is granted, some other
application must be granted as well. As noted above, each new applicant must be considered
individually, such that every case is distinguishable from every other in many ways. We
therefore limit our comparison ofthe recommendations made in different applications to this
particular point in our analysis.
          We take judicial notice of the fact that Hopwood's story is well known within the legal
community. See, e.g., Tony Mauro, Shon Hopwood's Amazing Legal Journey to be Featured on
"60 Minutes," Nat'l L. J. Oct. 12, 2017, https://www.law.com/nationallawjoumal/sites/
nationallawjoumal/2017/10/12/shon-hopwoods-amazing-legal-joumey-to-be-featured-on-60-
minutes/[https://perma.cc/NFY2-EM9Y]. Furthermore, Hopwood waived his right to
confidentiality in the Board's recommendation in his case, the WSBA did not oppose our
considering it, and we have previously considered comparable evidence in disciplinary cases.
See In re Disciplinary Proceeding Against McGrath, 178 Wn.2d 280, 286, 308 P.3d 615 (2013).

                                               27
In re Bar Application ofSimmons, No. 201,671-5


States Navy, he participated in a string of armed bank robberies in.Nebraska in his

early 20s. He pleaded guilty to "five felony counts of bank robbery and one felony

count of using a firearm during a crime of violence" and served a 10-year prison

sentence, Tarra Denelle Simmons' Mot. for Judicial Notice & to Expand R.,

Attach. C at 2. After Hopwood completed his sentence and went on to excel in law

school, this court granted his application to sit for the bar exam in 2014 in

accordance with the Board's unanimous recommendation. His ethics and abilities


as an attorney have never been questioned, and he is, by all accounts, a credit to the

profession.

       Both Hopwood and Simmons are living examples of a person's ability to

change if he or she has the will and opportunity to do so. Both oftheir stories

attracted rnedia attention, and both ofthem openly and publicly shared their stories

for the benefit of others. Both received extensive support for their applications

from the public and from distinguished members of the legal community. The

Board found them both to be candid and credible. There is no dispute that both

Simmons and Hopwood generally present themselves in a professional and

courteous manner, and there is no reason to believe that either one behaved

uncharacteristically at the board hearing. Although every bar applicant is unique,

we do not believe there is a sufficient basis on which to differentiate between




                                            28
In re Bar Application ofSimmons, No. 201,671-5


Hopwood's and Simmons' respective attitudes toward their prior misconduct and

the publicity they have received, except for their gender.

       We also give more weight to the testimony and letters supporting Simmons'

application than the Board did. While it is true that many of Simmons' supporters

had known her for three years or less at the time she applied, that is not at all

relevant to the question of whether Simmons currently displays an unwarranted

isense of entitlement. The people who testified and wrote in support of Simmons'

application unquestionably interacted with her as she presents herself today.

This support comes from an extraordinarily wide array of individuals, including a

volunteer at the Mission Creek Corrections Center for Women who first met


Simmons while she was incarcerated, Simmons' supervisors at the first places

where she worked after her release from confinement(which were not high-profile

settings but a fast food restaurant and a property management company), currently

sitting Washington judges at both the trial and appellate levels, the dean ofthe




          Much has been written about the difficult questions that arise when making the
necessarily subjective determination that a person is or is not of good moral character and fit to
practice law. E.g., Jon Bauer, The Character ofthe Questions and the Fitness ofthe Process:
Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 U.C.L.A. L. Rev. 93
(2001); Rhode, supra. While we disagree with the Board's recommendation in this case, we do
not hold that it acted arbitrarily. See Wash. Supreme Court oral argument, supra, at 23 min., 57
sec. We also note that Simmons "makes no allegation of bias in this case." Reply Br. of
Applicant Tarra Denelle Simmons at 1 n.l; c/ RAP 12.1(a). We therefore do not explore
potential indicators of bias, and note only that it is extremely important for the WSBA and the
courts to ensure that they are sufficiently informed to make subjective judgments about
applicants with histories of substance abuse, criminal convictions, and financial problems.

                                                29
In re Bar Application ofSimmons, No. 201,671-5


Seattle University of School of Law and many law school faculty members, and

respected practicing attorneys ranging from the elected King County prosecuting

attorney to a staff attorney for the American Civil Liberties Union of Washington.

It is undisputed by Simmons' many supporters that she consistently displays the

utmost integrity, compassion, and dedication. We simply do not believe that so

many people would put their own reputations at risk with no benefit to themselves

to give their unequivocal support to a person who evinces an unwarranted sense of

entitlement.


       We conclude that the majority of the Board did not give sufficient weight to

the level of personal insight Simmons has demonstrated, and that the Board erred

in viewing Simmons' publicity and the pride she rightly takes in her

accomplishments as negative factors. Simmons has shown she has "respect for . . .

the judicial process" and the "ability to conduct [herjself in a manner that

engenders respect for the law." APR 20(c),(e)(2). We also do not view Simmons'

"attitude toward the misconduct, including without limitation acceptance of

responsibility and remorse" as a negative factor in this case, APR 21(b)(9)(v),

C,     Simmons has met her burden of proof

       We hold that Simmons has shown by clear and convincing evidence that she

is currently of good moral character and she is fit to practice law, Simmons has

spent enough time in recovery, and she accepts full responsibility for her prior


                                            30
In re Bar Application ofSimmons, No. 201,671-5


conduct. She has consistently demonstrated remorse, self-awareness, fortitude, and

an unwavering dedication to earning and maintaining the respect ofthe profession.

Her success during law sehool, both aeademically and in supervised internships,

amply demonstrates she is worthy to sit for the bar. Indeed, given the substantial

obstacles that she has overcome, her success is an even stronger indicator of her

abilities than it would be for the average law student. As noted by Dean

-Annette E. Clark of the Seattle University School of Law, unlike Simmons,

"[m]any of our law students have lived lives of privilege, and so when we attest to

their character and fitness to practice law, it is under circumstances where they

have not been tested in any meaningful sense by circumstances such as poverty,

substance abuse, and domestic violence." Memorandum, Attach. B at 114.

Simmons, meanwhile, has overcome all ofthose circumstances and more. Her

remarkable achievements would simply not be possible without her extraordinary

abilities and relentless hard work.


       We grant Simmons' application to sit for the bar exam.

                                    CONCLUSION


       A license to practice law is a privilege, and the decision to grant such a

license is not made as a matter ofright or as a matter of grace. It is a challenging

 decision that requires a searching review by bar counsel, the Board, and this court

 wherever an applicant's prior conduct raises concerns about his or her current


                                            31
In re Bar Application ofSimmons, No. 201,671-5


character and fitness. The inquiry involved in evaluating a person's moral

character is easier said than done. It involves weighing a variety offactual

circumstances involving extremely personal considerations, with an eye toward

protecting the public while upholding a consistent, bias-free, and evenhanded

application of general guidelines. Nevertheless, it is a decision that must be made

on a regular basis in our self-governing profession. We do not discount the

difficulty of the Board's duty in this regard.

       At oral argument, bar counsel specifically asked this court, regardless of its

ultimate decision, to refrain from holding that the Board acted arbitrarily in making

its recommendation. We take this opportunity to make it very clear that this court

never considered such a holding. We do not intend to undermine the authority of

the Board or the respect due to the Board and to bar counsel, nor do we mean to

suggest that the Board's recommendation was made in bad faith. We simply

disagree with the Board's recommendation in this particular case.

       Simmons has proved by clear and convincing evidence that she is currently

of good moral character and fit to practice law. We affirm this court's long history

of recognizing that one's past does not dictate one's future. We therefore

unanimously grant her application to sit for the bar exam.




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In re Bar Application ofSimmons, No. 201,671-5




WE CONCUR:




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