John Cook [*]

[Full text of this Article in PDF is available at this link]

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Introduction

To work in either the national security field or the legal profession, candidates must endure the substantial hurdle of a highly invasive background check. Submission of the Standard Form 86 (SF-86) is required of candidates for national security clearances. [3] Candidates for bar admission must complete a character and fitness form,[4] which the National Conference of Bar Examiners (NCBE) supplies many states.[5] Although there are other steps that may be required in these processes, completing their respective forms is a very substantial task that applicants must face.[6]

This Article compares the two processes primarily by examining the scope of the SF-86 and the NCBE Form. This comparison reveals that the SF-86 asks a significantly fewer percentage of questions without a time limit in their scope than does the NCBE Form. Furthermore, the questions in the SF-86 are more relevant to vetting national security clearance candidates than are the questions on the NCBE for bar applicants. Moreover, both clearance recissions and clearance refusals have generally low rates, as is the case with discipline imposed on attorneys. Although significant harm can come to the public from an unethical or inept lawyer, the harm that can come from misused or mishandled national security information is, in most instances, notably greater. This Article concludes that the national security clearance process provides significant guidance towards improving the bar admissions process, including that most of the questions on the NCBE should be limited in temporal scope instead of seeking information within the scope of a candidate’s lifetime.

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[*] Visiting Assistant Professor of Law, University of North Dakota School of Law (Aug. 2020–May 2022). The author expresses his gratitude to the editors of the Harvard National Security Journal. He also thanks Dean Michael McGinniss of the University of North Dakota School of Law for his support and mentorship over the last two academic years. He dedicates this article to his parents James Scott Cook and the late Reverend Alison Buck Cook.

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[3] See infra Part I.B.
[4] See Bar Admission, YALE L. SCH., https://law.yale.edu/student-life/careerdevelopment/students/career-guides-advice/bar-admission [https://perma.cc/NA6S-4H36] (last visited Dec. 21, 2021) (“[Y]our character and fitness must be established as a prerequisite to licensure. To assess these qualities, you will be required to provide detailed information about your background.”).
[5] See infra Part II.A.
[6] See infra Parts I.B, I.C, II.B, II.C, II.D.