The first part of this series dealt with the fundamentals of applying for the bar: thoroughness, accuracy, and openness with your jurisdiction’s board of law examiners. This second article discusses the importance of disclosing accurate information, disclosing information that is embarrassing, involves previous criminal conduct, divulging past financial or employment problems, and addressing medical conditions such as addiction and mental illness.
Thorough and Complete Answers
The applicant is solely responsible for producing complete answers to all questions presented in the affidavit of personal history (referred to as affidavit). Even seemingly mundane matters such as an address history are considered important to the process. Applicants should always verify all information presented on the affidavit. As new reporters learn in journalism school, “If your mother says she loves you, check it out first.”
Social security records, tax records, and commercial internet search engines all contain information about an applicant’s past work, schooling and residences. These are free or accessible for a nominal cost. Before completing the affidavit, an applicant should double check sources to confirm information. If information is not available for a specific question, an applicant should keep track of what attempts were made to find the information, the dates when the information was sought and the results of any search.
Applicants must understand exactly what is being asked for each question on the affidavit. The wording tends to be broad. In most situations, it is better to disclose more information than less.
Applicants with a long history of business activity which encompasses litigation, ownership in many corporations or complex personal histories, may want to contact a private investigator for assistance. Private investigators have the resources to find many facts that average citizens will not. The cost of private investigators varies widely, but the cost for failing to disclose information is far greater, resulting in delays in being licensed for months or longer.
Disclosing Embarrassing/Derogatory Information
Most applicants get through the bar admissions process with no problems. Approximately 10% of applicants will have their files ‘flagged’ by bar investigators based upon conduct revealed by the applicant and/or found in the public record. For the most part, the affidavits that are flagged can be addressed through the course of the investigation with some clarifying information. Applicants should strive to provide this information in a timely manner to prevent undue delay in the process. Some disclosures require more thorough vetting by the bar investigators.
The cardinal sin in preparing an affidavit is negligently or purposely attempting to conceal information. “The cover-up is always worse than the crime” is a trite phrase but certainly true in the bar application process.
An applicant can assume that if there is any negative information in the public record, it will be found by bar investigators. They have signed releases from all applicants permitting them access to records from courts, schools, former employers, and can request medical records with the appropriate HIPPA release which an applicant may be asked to sign. The availability of credit and banking information makes it easy for bar investigators to find financial irregularities and problems paying creditors.
The best approach is to make the initial disclosure in a thorough and objective manner, taking care not to leave out important facts or shade descriptions to cast a favorable light on the applicant.
The background investigation is not intended to embarrass or humiliate the applicant. It is designed to find out about the applicant’s past conduct in order to give the licensing authority the opportunity to see if past behavior is part of his or her current character and fitness. The following steps will ensure a clear disclosure to the licensing authority:
- Clearly define what is being disclosed. The disclosure is tied to a question in the affidavit of personal history, therefore use the wording of that question to determine what information is being disclosed; e.g. if the disclosure is a prior criminal conviction, provide information regarding that conviction. If there are more than one incident, disclose each separately or as required by your jurisdiction’s licensing authority.
- Answer objectively. Address the activity being disclosed from the perspective of a disinterested third party. This means leaving out any emotional reaction to the incident. Reference whatever information you have available: police records, medical records, employment records, etc. Do not rely solely on memory.
- Disagreement with the record. After setting forth the disclosure as a disinterested third party in an objective manner, an applicant can add additional facts which are not part of the record and state differences with the disclosed records; i.e. facts found in a police report, credit report errors, etc. The additional information should clarify the records and not be used to vent anger or frustration about the disclosed incident.Sometimes, an applicant’s disclosure involves employment where records are not kept in a regular fashion or are purposely vague, so the employer is not compelled to risk legal action by releasing negative information about a terminated employee. The applicant must still disclose the termination, but may not have a record to rely upon in formulating a response. In this instance, an applicant can try to rely on memory or reach out to former colleagues who may be able to shed light on the termination. One caveat would be to remember to maintain objectivity in the disclosure and be willing to be critical of the conduct which gave rise to workplace discipline or termination. Bar investigators may call employers to follow up on incomplete records to determine the underlying reasons for workplace discipline.
- Apology/Mea Culpa/Emotional Response. The natural desire for applicants is to affirmatively state that the disclosed matter was a) ‘worst thing I ever did’, b) ‘an isolated incident’, c) ‘something I still regret to this day’, etc. That is understandable, but not always necessary. If an applicant feels strongly enough about the underlying facts of an adverse disclosure, it would be more important to state what changed in the applicant’s behavior after the incident. For applicants who had credit problems, it is appropriate to note remedies such as taking a class on personal finance or monitoring banking more closely. If an applicant has been convicted for one or more crimes involving alcohol or drug use, it would be helpful to bar investigators to know of changed consumption habits after the incident(s) or counseling that led to positive changes.
Disclosing Addiction and Mental Disease
Published articles cite that up to 9% of the American population suffers from or is at risk of a substance abuse problem. This includes alcohol, street drugs, and abused prescription medications. Many sources cite the fact that 18% of all Americans suffer from some form of mental disease. Lawyers and law students are not immune to these conditions, and in some cases are at greater risk of developing problems given the pressures of practicing law.
Affidavits of personal history have a number of questions that address drug and alcohol addiction, other addictive behaviors, and mental disorders. The questions are worded in a manner that can be difficult to clearly understand. On the Michigan Affidavit of Personal History, the question about addiction asks:
52 Have you ever used, or been addicted to or dependent upon, intoxicating liquor or narcotic or other drug substances, whether prescribed by a physician or not, the use of, addiction to, or dependency upon which permanently, presently or chronically impairs or distorts your judgment, behavior, capacity to recognize reality or ability to cope with the ordinary demands of life?
Have you ever used, or been addicted to or dependent upon, intoxicating liquor or narcotic or drug substances, whether prescribed by a physician or not, the use of, addiction to, or dependency upon which permanently, presently or chronically impairs your ability to exercise such responsibilities as being candid and truthful, handling funds, meeting deadlines, or otherwise representing the interest of others?
If the answer to either is yes, identify the involved substance, the nature and length of use and the names and addresses of involved physicians or other health care professionals, and institutions or consultants.
The wording of this question seems to suggest that the applicant disclose any use they believe to be addictive now or in the past. However, a closer reading demonstrates that the question asks about any addiction that affects the applicant’s present ability to function as a professional in a position of trust. There may have been a time when an applicant’s answer would have been ‘yes’, but presently it would be ‘no’. As every situation is different, the proper disclosure should be based on what other activities would be linked to an addiction problem, such as a series of criminal convictions, lost jobs or dismissal from school. In these cases, it is appropriate to disclose other information, including treatment and counseling measures.
It is appropriate to disclose a prior problem especially if it is managed well today. It gives bar investigators a complete picture and shows how management of the addiction or mental disorder has aided the applicant with meeting day-to-day needs and completing complex tasks such as law school.
Every applicant’s situation is unique. If there are significant disclosures to be made, it would be appropriate to seek counsel to understand the repercussions of these disclosures and to take other steps to demonstrate good character and fitness.
Part 3 of this article will discuss the process of being interviewed and going through state bar hearings to determine whether the applicant possesses current character and fitness.
Timothy Dinan is an attorney in MI and AZ and teaches at Michigan State University College of Law. His practice specializes in bar preparation studies, bar admission issues, and attorney misconduct matters. You can learn more about his practice at www.timdinan.com.
 Applicant investigations are confidential investigations not available to the public and any disclosures made to bar investigators are not subject to libel or slander claims.