CHARACTER AND FITNESS AS A NATIONAL STANDARD

I am passionate about attorney admissions issues and helping law students make the transition from student to practicing lawyer. I hope there is truth in the adage “if you do something long enough you will become an expert.” I still learn more each day from my clients, my colleagues and my students.

I have been contacted from all over the United States and Europe about admissions to a given jurisdiction. Where each jurisdiction has its own rules, the basics for character and fitness are always the same.

Michigan Compiled Law 338.41 defines good moral character, in part, as, “. . . the propensity of the part of the person to serve the public in a licensed area in a fair, honest and open manner.”

Citing that law, anyone applying for practice can take that phrase “fair, honest and open manner” and use it as a gauge to evaluate all past behavior. No matter in what jurisdiction you wish to practice, the standards set forth above are as good an indicator of good moral character as any other measure.

Everyone in some point in their lives has done something they are not particularly proud of or knowingly committed an act which would not be a positive reflection on their good moral character. Some people are fortunate enough to never have that part of their life become a public issue. They enjoy the luxury of keeping that mistake to themselves. For the rest of us, our character and fitness issues became part of a public record and it is something that the state licensing boards compel use to address and explain.

How Much to Disclose

When a disclosure is made, there are some fundamentals to keep in mind. Most importantly, a full disclosure must be made. Not just that the incident happened or something came about, but a full disclosure including details which may be painful and embarrassing to discuss. To many applicants, this is as difficult as any other part of the application process. If a disclosure is held back or skewed the narration in favor of the applicant, it creates yet another issue for the state licensing board to consider.

The burden is always on the Applicant to prove good moral character so any disclosure made with the logic that the bar investigators will figure it out themselves is short-sighted. Make the investigator’s job easier; disclose in full.

Hiding it or ‘forgetting’ about it is more egregious. Remember it is the cover-up and not the crime that usually causes most problems for applicants. Make sure to review all sources of information including school records, police reports, witness statements, employment records and the like. If you are making a written disclosure without those, make it clear you may augment your disclosure with further records upon their receipt.

Explaining the Conduct

Assuming the applicant openly and honestly disclosed the issues which concern the application to practice law, the next step is to understand why. After making a full disclosure, the obvious questions will be “Why?” and “How do we know this will not happen again?” That explanation is equally important. To simply say that “I really learned by lesson” or “I assure this will not happen again”, is totally inadequate. The applicant is in a difficult position. A negative cannot be proven by saying that it was an anomaly or it was an isolated incident. The explanation has to be more credible.

There may be a back story which the applicant needs to provide. There may be other things going on in the applicant’s life which would give a more credible context to his/her actions. Sometimes all of us suffer personal difficulties which overwhelm us, even temporarily. Recognizing that is the first step toward a more credible explanation. Taking positive action to address those concerns goes even farther.

How a Lawyer May Help

Sometimes a lawyer can assist an applicant in preparing his/her application or preparing for an informal interview or formal hearing. Our office reviews hundreds of applications from all over the country. We do so with an eye toward extracting proper disclosure from the applicant’s records and personal recall. We accomplish this by asking the hard questions early in the process. When necessary, we refer the applicant for more extensive counseling to help address those issues which could be a handicap to an application. No matter where the applicant is from or where he/she wants to practice law, good moral character will be a cornerstone of his/her application and future conduct. By starting off on the right foot, the applicant puts him/her in a much better position to succeed.

Timothy Dinan is a licensed attorney in Michigan and Arizona. He provides complimentary phone consultations for law students, bar applicants and attorneys moving into a new jurisdiction. For more information, please go to www.timdinan.com.