ISSUE TRANSITION FROM DISTRICT COMMITTEE HEARING TO STANDING COMMITTEE HEARING

ISSUE TRANSITION:

FROM DISTRICT COMMITTEE TO STANDING COMMITTEE

In the application process, Applicants who are called before the District Committee are informed ahead of time of the issues of greatest concern to the committee.  They are provided in a notice from the State Bar of Michigan and are given to the Applicants at least ten days prior to a District Committee hearing (unless that time frame is waived).  Generally speaking, the issues will not be a surprise to the Applicant as they either knew of the information by providing it or knew the information and did not provide it.

ISSUES AT THE DISTRICT COMMITTEE

The District Committee generally does not know the Applicant personally.  Sometimes the Applicant or the Applicant’s counsel will know members of the panel.  However, the Applicant generally will not know the members of the panel personally.  Further, the members of the panel may be recuse themselves if they feel they have too great of a personal relationship with an Applicant.  A District Committee meeting is billed as an informal meeting.  It allows the Applicant to have a frank discussion with the members and for a preliminary determination on whether the Applicant has the requisite character and fitness to practice law.  There is no formal structure to the meeting and the committee will bring in its own attitudes, opinions and prejudices.  My experience has been that there is not a predictable approach.  Rather, there is certainty that the Applicant will be uncomfortable with any level of inquiry.

Usually, most Applicants are able to resolve their issues with the Standing Committee on Character and Fitness through the District Committee meeting.  In other words, if an adequate explanation is provided to the District Committee, it will then provide a positive recommendation that the Applicant possesses the requisite character and fitness which is then adopted by the Standing Committee.  The Standing Committee reviews all District Committee records and recommendations and after that review, determines in a summary fashion whether it would require the Applicant to continue with the application process or require the Applicant provide further proofs to the Standing Committee.

ISSUES AT THE STANDING COMMITTEE

Typically the issues at a Standing Committee Hearing are the same ones brought up at the District Committee hearing.  However, it is important to note that after a District Committee hearing and the report is prepared, other issues may arise.  For instance, a disclosure question may become more acute because it is discovered in a District Committee hearing an Applicant failed to disclose other information which is not part of the District Committee’s referral.  The Applicant’s conduct during the District Committee hearing may also be noted as an issue if it is the opinion of one or more panelist that the Applicant was not being forthright or acted in an inappropriate manner.  Most Applicants would be horrified to learn that their mannerisms during such an important meeting were being criticized or seen in a negative manner.  However, the fact that an Applicant may not be aware of his or her behavior in a group could itself be an issue for further exploration by the Standing Committee.

If the District Committee hearing does not provide enough of a positive recommendation or the Applicant has asserted his or her right after a negative recommendation, the Standing Committee hearing process will then begin.  A chairman for the hearing is appointed by the Standing Committee.  Generally this has more to do with geography than anything else, although there are certainly exceptions to that practice.  Once a chairman has been appointed, state bar counsel is hired.  Then state bar counsel is drawn from the Standing Committee membership which includes both regular members and advisor (i.e. newer) members.

ISSUE FORMATION

State Bar counsel will then publish a statement of issues, exhibits and witnesses to be addressed for the Standing Committee Hearing in its Prehearing Order.  This order needs to be evaluated as it will provide information to the Applicant which will identify what issues will be part of the hearing.  It must be reviewed very carefully to see what, if any, issues have been added, expanded upon or modified before the Standing Committee hearing.  To assume only the issues raised in the original District Committee referral will be the same issues published in the Prehearing Order can be short sighted.

If an Applicant finds that issues have been added after the District Committee hearing, it is important to understand the reasons why they may have been added.  Further, it is incumbent upon the Applicant to provide an explanation for the added issues, including identifying possible witnesses and/or other proofs to support the explanation.  Again, the aim of any Applicant is to demonstrate the requisite character and fitness to practice.  Thus, those proofs must be seen in the same light.  The bottom line is a careful review of the order from the Standing Committee referral and adequate preparation for the hearing to address that change is needed.

Other ways that an issue may be modified or added to a Standing Committee hearing could be conduct that arises during the application process (such as an arrest, lawsuit, being fired from a job, or other significant changes which are required to be reported as part of the continuing duty to amend the Application of  Personal History).  A request from an SBM investigator for information to which a response is made may also be a reason for the additional modification.

PREHEARING REMEDIES

Additional information does not necessarily lead to a modification or an expansion of a hearing.  For instance, if an Applicant has significant debt questions which became resolved during the application process and are timely reported to SBM, may lead to the modification of an issue to one that is resolved prior to the hearing.  This does not mean it will not come up at the hearing, but the Applicant will be in a better position to address issue in a summary fashion rather than having to present an explanation and possibly other proofs.  Issues which are added to an Applicant’s prehearing order may also divulge untapped sources of information which may not be originally considered, but later on become helpful and even critical to the Applicant’s hearing.  A good example would be naming additional witnesses who did not originally appear to be able to provide relevant information to the panel but whose testimony not only helps the Standing Committee understand the expanded issue but also gives a better explanation as to the original issues that led to the Standing Committee hearing.  Testimony from family members, former instructors and even more novel sources of information can be helpful to the panel in making a favorable decision for the Applicant.

With the aim of demonstrating current character and fitness, do not downplay the role of creativity in approaching these additional issues.  What is originally perceived as a problem may later become an asset if it is viewed with an open mind towards the Applicant’s bottom line goal.  Applicants sometimes loose site of the reasoning for the hearing as well as the actual goal.

It is important to pay attention to any changes in the statement of issues before the Standing Committee hearing.  Generally speaking, there are very few surprises in character and fitness matters overall.  When a change arises, it is important to not miss it and to address the issue in a business-like fashion.  The bottom line of being effective is being able to openly discuss the Standing Committee’s concerns to provide them with the confidence and comfort to recommend the Applicant to the Board of Law Examiners and to the general public as an individual who can be trusted to properly and productively practice law.

If you have any questions, please feel free to contact Dinan & Associates, P.C. at (313) 821-5904 or Timothy A. Dinan at t_dinan@yahoo.com.