CHARACTER AND FITNESS UPDATE 2012
Over the last year, I have observed some trends in the hearings at which I have participated in and from which I have information about the participants. The following is strictly my opinion of the process.
MORE PROOFS REQUIRED
The panels for Standing Committee hearings are trending toward greater participation by the Applicants in the form of requiring more proofs. For instance, more testimony from other witnesses is required by the panels. Family members who have not been historically called in the past are becoming increasingly more important witnesses on certain types of issues. While their testimony may not have to be lengthy, their observations and discussions have proven to be helpful in “close call” cases. My experience with family members has generally been positive, although not always so. Like any other witnesses, they need to be properly vetted, prepared and presented with an eye toward making the Applicant’s case.
Counselors need to be equally prepared. The most relevant caution I can offer would be to make sure the professional witnesses testifying to character and fitness do not “sugar coat” matters. In other words, make sure the Applicant’s negative traits are discussed. It is better to present a balanced opinion which may not sound “perfect” to the panel, but is more realistic as to the Applicant’s particular personality and previous issues. An example of this may be a question of behavior change. If an Applicant had issues which could be attributable to maturity or lack of insight, it would be appropriate to point out the gains made through counseling or other processes. However, it would be disingenuous to state that the issues raised by the Applicant’s behavior are never going to reoccur or that the Applicant is a totally reformed individual. I believe the committee is more confident in hearing from experts who present their findings on a measured basis. The Applicant may want to inquire as to the expert’s background in working with other professionals, especially lawyers, and how the Applicant would fall into the spectrum of clients who are professionals (i.e. is the person compliant, what motivates the person to be in counseling, how has this person done relative to other clients of the witness, what is the prognosis in maintaining a positive change, etc.).
Calling expert witnesses can be useful to a case, but requires a careful touch. Some experts are reluctant to testify because of their prior experience in court. Other experts may have a “chip” on their shoulder and begin to argue with the panel. Some experts profess an understanding of the standard of conduct which is sought by the panel but fail to state it when required. These are all issues which need to be worked out prior to the hearing date.
A MORE ACTIVE BOARD OF LAW EXAMINERS
The current composition of the Board of Law Examiners in Michigan includes three experienced judges and three experienced litigators. In the last twelve months, I have noticed a greater participation and review by this board in the decision making process regarding Applicants to the State Bar. Unfortunately, this means more Applicants are being rejected even after a positive recommendation by the Standing Committee and/or hearings are being required to review the positive recommendations. This reality requires that Applicants who find themselves in the character and fitness process to anticipate spending more time waiting to be licensed. This is important from the stand point of employers, employees and other interested parties in the process.
PLANNING YOUR BLE HEARING
It is important to keep in mind the BLE will have the following information as part of their packet:
1. The opinion of the District Committee;
2. The opinion of the Standing Committee; and
3. All exhibits and proofs from the Standing Committee hearing;
4. Transcript of the Standing Committee hearing at a minimum; and
5. If applicable, other proceedings or post hearing conditions which were to be met.
As the Applicant plans for their hearing, he or she must strike a balance between appropriately discussing the issues of interest to the BLE and not repeating the information it has ad nauseum. It is not that an Applicant needs to be psychic, but a few things should come to mind when preparing for a BLE hearing:
1. Look at the language of the District Committee and Standing Committee recommendations. Especially focus on matters where doubts were expressed if they were disregarded in the end;
2. Important points bear repeating. In other words, do not merely cite from the transcript, but bring them up at the appropriate places during the hearing and make sure to make the Applicant’s position is made clear by referencing the necessary proofs that are important to his or her character and fitness. If necessary, bring back the key witnesses (by telephone or live) to reiterate those important points upon which the question of character and fitness are in question;
3. The Applicant should keep an eye on the panel members and listen carefully. If it appears they seem to understand or comprehend an issue, it is safe to move onto another issue. If the panel appears to have a problem or concern, be prepared to address the issues/questions with page number citations from the transcript or previously marked exhibits which are part of the BLE’s information packet.
The speed at which the Applicant received a decision depends upon the nature of the issues and the finding of the BLE. If it is an immediate decision, the BLE will usually send out a decision right away. If it is a recommendation for admission, the opinion will be included along with the packet of information for the Applicant to be sworn in.
COMMON ISSUES SEEN IN 2012:
Probably the most common issue seen was failure to disclose. This either to disclose something to SBM, the law school or some other role where the Applicant was duty bound to present it to the SBM on the Affidavit of Personal History. Not only are these the most frequently seen issues, but also some of the toughest ones to deal with. The matter does not even need to be germane to the Applicant’s current professional or schooling to be relevant. If the investigation turns up lack of candor in, as an example, a family law matter or under reporting a criminal matter, it could still have a direct impact on an Applicant.
There is no set defense or magic explanation which would take this issue and make it palatable to a panel that will all of a sudden understand and issue a positive recommendation. What I have found to be successful in hearings is the following:
1. Time. Time tends to be the most favorable factor for Applicants. If there has been a considerable amount of time between the failure to disclose, misrepresentation, etc., the panel can understand a chance in circumstance in maturity, developed insight and similar positive changes;
2. Counseling. Counseling is helpful if it is participated in sincerely and the Applicant is able to demonstrate a real change or insight which gives a little more credence to a claim of change. Such insights include childhood traumas being explained, relationship with parents, cultural conduct which is peculiar to family or step-family and similar explanations. Not all behaviors are neurotic, per say, or other diagnosable, but rather, they are liked to some form of maladaption which manifests itself for in a failure to properly disclose.
3. Openness. The panels are looking for the Applicant to be open about his or her shortcomings. Any sense of defensiveness or “holding back” information will result in a swift rejection. Even if the Applicant is sincere in his or her belief there has been a positive change that they will not failure to disclose things, it is incumbent upon the Applicant to be sincere in his or her testimony. This may require substantial preparation prior to a hearing in order to succeed. It is a wise idea to prepare carefully and completely for this type of testimony. As always, not matter what the issue, follow-up preparation will be the key.
If you have any questions, please feel free to contact Dinan & Associates, P.C. at (313) 821-5904 or Timothy A. Dinan at firstname.lastname@example.org.