Character and Fitness
The Role of Counsel to Applicants
Character and fitness matters are essentially administrative law cases. They deal with the very narrow issue of the suitability of an individual to practice law in the State of Michigan given the requirements for licensure.
The Applicant’s attorney should be able to remove the mystery of the procedure. Ideally, the attorney who is representing the Applicant has been through more than a few hearings and understands the burden of proof along with what evidence is necessary to meet the burden. An attorney experienced in this area will have connections in the field with professional witnesses who can be of assistance to the applicant. This would include psychologists, psychiatrists, doctors, addiction therapists and have a good working knowledge of the members of the Standing Committee.
Requirements to Be Licensed as a Michigan Attorney
There are four requirements to be licensed to practice law in the State of Michigan. First, the Applicant must graduate from an ABA approved law school or be previously licensed in another state. Second, the Applicant must pass the MRPE with a score of 85 or higher. Third, pass the Michigan State Bar Examination or have your results from another jurisdiction recognized by the Michigan Board of Law Examiners. Fourth, meet the standard for character and fitness as set forth in the Rules in Michigan is current character and fitness. See MCL 338.41 et seq. and the Michigan Board of Law Examiners Rules – Generally see Michigan Court Rules – Rules for the Board of Law Examiners.
The Character & Fitness Requirement
The Michigan Legislature defines ‘Good Moral Character’ in MCL 338.41: The phrase “good moral character”, or words of similar import, when used as a requirement for an occupational or professional license or when used as a requirement to establish or operate an organization or facility regulated by this state in the Michigan Compiled Laws or administrative rules promulgated under those laws shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner. (Emphasis added.)
All applicants for the bar have their credentials reviewed by the Standing Committee on Character & Fitness (“Character & Fitness Committee”) of the State Bar of Michigan. The Character & Fitness Committee does it best to ensure that the applicants who apply to practice law in Michigan meet the standards for good character and moral fitness and give the applicants who appear before them an opportunity to put their past conduct in context and explain why it will not affect their work as an attorney.
An applicant may have blemishes in their personal or academic credentials which they believe may preclude them from practicing law in Michigan. The applicant may have had criminal contacts and/or suffers from an addictive disease. The applicant may have been involved in several lawsuits or had other claims filed against them. Problems in the employment history or problems during school.
Each one of the foregoing situations potentially calls into question the applicant’s character and fitness. Generally speaking, none of those will necessarily preclude the applicant from practicing law in Michigan. Rather, they are opportunities to show how the applicant has grown and learned from their experiences. That is the precise reason the State Bar of Michigan has a separate committee to consider every candidate’s credentials and history.
Representation of Applicants
Tim Dinan performs preliminary screens of the applicant’s application and credentials BEFORE they are submitted to the State Bar of Michigan. This office also engages in frank discussions with the applicant regarding their application and its viability, given the current circumstances for applications in this state. By carefully considering the applicant’s application, concerns of past conduct which may adversely affect the Character & Fitness Committee’s view of their current character and fitness, this office can offer a number of creative solutions which will provide a positive result which they are seeking.
Tim Dinan has been actively representing the interests of applicants since 2002. He has appeared over 100 times before the Standing Committee and District Committees throughout the state. His firm is experienced in dealing with State Bar of Michigan’s Character & Fitness investigators, handling matters before the District and Standing Committee and hearings before the Michigan Board of Law Examiners.
He has written a definitive guide for applicants and practitioners “Manual of the Character and Fitness Process for Application to the Michigan State Bar” available at Amazon.
The Character and Fitness Process
Step 1: Affidavit of Personal History
All character and fitness matters begin with preparation and submission of the Affidavit of Personal History (APH) to the State Bar of Michigan. This affidavit is lengthy and will take a number of hours to complete. There are numerous reporting and due diligence requirements of the applicant. Applicants will provide an extensive personal, financial, social and residential history for the State Bar investigators to review. There are a number of other supporting documents which the applicant is responsible to provide.
Once the APH has been submitted, the State Bar will conduct its own investigation and follow up on the information the applicant has provided. If any questions arise from this process, the applicant will be contacted by the State Bar for follow up information or to set up a hearing before a District Committee that may explore issues which the investigators feel could be a detriment on the applicant’s ability to practice law.
Step 2: District Committee Meeting
District Committees are made up of three attorneys from the Applicant’s county of residence (which corresponds with the State Bar’s District) who volunteer to serve on this committee. Their job is to engage in an informal discussion with the applicant regarding matters which have been identified by the state bar investigators as possible questions that need further explanation. The District Committee is provided with the full investigation file of the Applicant and the letter of referral which highlight’s the concerns of SBM.
They explore the issues from the SBM referral to determine their recommendation to the full Character & Fitness Committee. Their recommendation is not binding on the Standing Committee. The attorneys on the District Committee are volunteers; they do not always have the full opportunity to review all of the salient information found in the file by the time the District Committee meeting is scheduled. The applicant cannot presume the District Committee will be aware of all of the Applicant’s information.
Good preparation for a hearing before the District Committee will generally insure that it will at least better understand the issues which are being presented. As always, the burden will be on the Applicant to prove beyond clear and convincing evidence that they possess the requisite good character and fitness. Good preparation includes reviewing the applicant’s entire file, presentation of reports, current treatment programs, proof of restitution and other positive steps taken by the applicant. Letters of recommendation are also helpful, although they are not entirely necessary. The bottom line is the applicant’s knowledge of themselves and the ability to not only explain the situations which have been identified as questionable, but also to admit their shortcomings.
Step 3: The District Committee Recommendation
The recommendation from the District Committee is not binding on the Standing Committee on Character & Fitness, nor is it binding on the Board of Law Examiners. However, it is a preliminary review of how the applicant’s first contact with the Character & Fitness Committee went. This recommendation can be either short or lengthy depending upon the length of the report which was initially given them.
Generally speaking, the report is either going to insure you will have positive recommendation from the Character & Fitness Committee and become part of their collection of data regarding the Applicant if a hearing is required.
Step 4: Standing Committee Hearing Notification
Once the recommendation has been made by the District Committee, the Standing Committee on Character & Fitness will then consider whether a hearing is required or not. Even with a positive recommendation, it is possible that a hearing before the Standing Committee will be necessary. If a hearing is necessary, the applicant will receive a letter from the Standing Committee informing them of the same and advising of a deadline to respond. Generally speaking, the applicant will need to respond within two weeks of the notification in order to be considered timely. A letter, e-mail or telephone call is all that it takes to indicate the applicant wishes to go forward with the process.
Step 5: Standing Committee Hearing Panelists
The Standing Character & Fitness Committee is made up of attorneys who volunteer to serve the committee’s needs in assessing applicants for character and fitness. They are all attorneys who volunteer their time to review and access applications and District Committee reports for further processing. The members of the Character & Fitness Committee work as hearing officers and represent the State Bar’s interest at the hearing. All members of the Committee have experience at their respective District Committees and must serve for a minimum number of hearings before becoming regular members of the Standing Committee.
Step 6: The Hearing Process
The hearing itself is adversarial in nature. The State Bar takes a position that as of the time of the hearing, the Applicant has not met the standard for good moral character and fitness to practice law and either needs to either present more information and testimony to the Standing Committee or that the applicant does not meet the standard and should not be admitted to the State Bar.
As noted above, the State Bar will be represented by an attorney who will cross-examine the applicant and their witnesses. The Applicant may be represented by counsel or themselves. The Standing Committee can be made up of the full committee or a quorum may be waived. In order to expedite the procedure, the quorum is generally waived. There are two grades of membership in the Standing Committee: regular members and associate members. Associate members are newer members who do not have the requisite experience from sitting on the Committee as regular member.
The hearings are transcribed. The Committee has subpoena powers to bring in witnesses to testify on behalf of the State Bar or the Applicant. Since the Applicant has the burden, he or she presents their case initially and close with the right to rebuttal. The first step in any hearing is an update of the applicant’s application to make sure all information which should be on it is current and up-to-date. Statements are then made to confirm the waiver or non-waiver of whom may serve on the committee and whether the quorum has been met.
The members are made up of a chairperson and two to four supporting members. The chairperson is a regular member of the Character & Fitness Committee and the supporting members may be either regular or associate members. The chairperson makes ruling on issues of evidence and admissibility of witness statements. The chairperson runs the hearing much like a judge would run a courtroom. The Michigan Rules of Evidence are used guidelines, but are not strictly applied.
After the record has been opened, as the Applicant has the burden of proof, they will bring their witnesses in to testify. The witnesses may be character witnesses, fact witnesses to explain prior matters which are of question to the State Bar or professionals who have rendered treatment to the applicant in regard to a condition which is directly or indirectly related to the character and fitness of the applicant. The witnesses may testify live or by telephone. After direct examination, the State Bar attorney can then cross examine the witness and the other members can also ask questions. Re-direct examination can then be conducted by the attorney for the applicant with re-cross by the attorney for the State Bar. The members then may ask further questions of the witnesses.
At some point, the applicant will testify regarding their good character and fitness. This is usually the lengthiest questioning. Depending on the complexity of the referral, the hearings can go on for more than one day. The scheduling of the hearings is rarely on consecutive days. At times, they can take many months to complete because of the inability to schedule back to back days for the hearings.
Step 7: The Committee Decision
At the end of the proofs, closing statements are then made. Because the Applicant has the burden, they are allowed to make a closing statement and rebuttal to the closing statement of the State Bar. After the closing statements, generally the Committee members will then go into an executive session to discuss the testimony and proofs heard and determine whether a preliminary decision can be made. If such a decision can be made, then the Committee will issue an oral decision finding that good character and fitness exists or does not exists, and the Board of Law Examiners should endorse the decision. The Committee then publishes its decision and provides the entire record to the Michigan Board of Law Examiners.
Step 8: MI Board of Law Examiners’ Review and Decision
The final decision is made by the Board of Law Examiners based on the recommendation of the Character & Fitness Committee and the Board’s independent review of the record. This decision can take up to two months or more because the Board of Law Examiners meets only every four to six weeks. Assuming the Board of Law Examiners has no other objections, a recommendation which is accepted by them will result in the applicant receiving their certification of Good Moral Character and Fitness. This means the Applicant can either seek to be sworn in to the State Bar if they have passed the bar exam or may sit for the bar exam if that has not been completed. The certification is good for three years.