CHARACTER & FITNESS UPDATE 2010

While the legal definition of character & fitness has not changed, the types of behaviors and past incidents which the SBM investigators focus upon reflects the views of the Standing Committee on Character & Fitness, the Board of Law Examiners and all m of the State members Bar of Michigan both directly and indirectly.  Since January 2010, our office has handled numerous files and reviewed a number of cases for applicants.  Listed below are trends we have observed.

Financial Issues

The SBM closely scrutinizes an applicant’s credit report and specifically asks about banking overdrafts. Applicants who have more than 4 overdrafts/NSF checks must provide an explanation for their banking situation and specific explanations for each overdraft item.  The more NSFs/overdrafts you have, the more explaining you will have to do.  If you are still in law school, nip this problem in the bud:  Watch your accounts closely.  Most NSF/overdraft issues can be cleared up in your district committee meeting with the right preparation.

If your credit record reflects a problem in timely paying bills or worse, then you will need to explain why. The concern is obvious: protection of the public. If the SBM sees a problem in money management, responsibility or credit abuse, your application will be delayed while you explain why your past financial practices won’t negatively affect your clients in the future. A ‘good’ explanation is usually tied to a personal or family tragedy.  To simply say, “Hey, school was expensive and I have bills” will not satisfy SBM.  No, you’ll need to articulate how you plan to avoid this situation in the future. Usually these issues are not fatal, but can delay you for up to 12 months.

Substance Abuse

A history of criminal contacts almost always has an underlying history of substance abuse. Singular instances of an MIP or OWI are usually not a big problem. A pattern of these types of crimes can be.

To date, the SBM still requires complete disclosure of all criminal contacts, even the ones taken under advisement. Thus, the ‘lesser’ issue you thought you left behind in undergrad now comes back to you when you fill out the SBM application. When the investigators see multiple offenses in a relatively short period of time, it becomes a pattern no matter what your official record might reflect. If you are unable to articulate a good explanation for the multiple contacts, SBM will assume a problem exists (I know, not fair, but most truths in life are neither fair nor pleasant). The applicant must make an affirmative showing that whatever problem exists, it is managed and will not likely re-occur. These types of problems can delay an application 6 to 24 months.  This is sometimes addressed through counseling or the formal program sponsored by the State Bar of Michigan: LJAP (Lawyers and Judges Assistance Program).  As each problem is unique, it is hard to say what the ‘norm’ is for any applicant.

Failure to Disclose

This continues to be the most prevalent problem in our office. The applicant, for whatever reason, does not want to discuss past behaviors that are part of their lives. Failing to identify these incidents or softpedalling them leads to more serious problems with the applicant’s credibility. Without your initial disclosure, the assumption is that you did not want this information to be known. It is better to overdisclose and explain than it is to fail to disclose an item.  There are a number of instances when clients think an issue would not come out and then have to later explain it multiple times.  It is hard to say, “yeah, you should have kept your mouth shut’.  It’s just like Watergate: the crime is always in the cover-up.  I think you will be more comfortable with a clear conscience than you would spilling the beans after you have been found out.

Feel free to contact the office with any questions you have regarding your SBM application at 313-821-5904 or tim@timdian.com