Character and Fitness

There are a number of requirements 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 and pass the Michigan State Bar Examination.  If the applicant is already a licensed attorney from another state, either their credentials from that state must be recognized (i.e. reciprocity), or they must be given a limited license to practice in Michigan.  However, all applicants for the bar examination must 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 insure that the applicants who apply to practice law in Michigan meet the standards for good character and moral fitness.

The standard for character and fitness in Michigan is current character and fitness.  In other words, the applicant may have had some 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 that are separate from an addictive disease.  The applicant may have been involved in a number of lawsuits or had other claims filed against them.

Each one of the foregoing situations potentially calls into question the applicant’s character and fitness.  However, none of those will preclude the applicant from practicing law in Michigan.  Rather, they are opportunities to show how the applicant has grown and learned from the experience.

This office has been actively representing the interests of applicants for years.  We are experienced in dealing with district committees, hearings before the Standing Committee and appeals to the Michigan Supreme Court from adverse decision from the Board of Law Examiners.  One of the more helpful services this office provides is a preliminary screening of the applicant’s application and credentials.  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 seeking.

The Process:

All character and fitness matters begin with the (APH) Affidavit of Personal History to the State Bar of Michigan.  This affidavit is rather lengthy and may take more than just a few hours to fill out.  There are numerous reporting and due diligence requirements of the applicant.  They need to present an extensive personal, financial, social and residential history for the State Bar to review.  There are a number of other supporting documents which the applicant is responsible for providing.

Once those documents have been gathered, the applicant can submit them to the State Bar.  Upon receipt, 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.

District Committee:

District Committees are made up of three attorneys who volunteer to serve on this committee.  Their job is to have 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 a detailed report, but not the full investigation file.  They then formulate questions based upon the report and try to advise whether they would submit a positive recommendation to the full Character & Fitness Committee.  Because 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.  The applicant cannot presume the district committee will be aware of all of the good information, but must focus on the highlighted matters in their recommendation.

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 good character exists in them.  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 themself and the ability to not only explain the situations which have been identified as questionable, but also to admit their shortcomings.

The Recommendation:

The recommendation from the district committee is not binding on the Character & Fitness Committee, 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 or become part of their collection of data regarding the applicant if a hearing is required.

Standing Committee Hearing Notification:

Once the recommendation has been made by the district committee to the Standing Committee on Character & Fitness, it 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 on Character & Fitness will be necessary.  If a hearing is necessary, the applicant will receive a letter from the Standing Committee on Character & Fitness 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-ail or telephone call is all that it takes to indicate the applicant wishes to go forward with the process.

Character & Fitness Committee Hearing:

The 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 veteran 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.

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 full Character & Fitness 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 themself.  The Character & Fitness 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 Character & Fitness Committee.  Regular members and associate members.  Associate members are newer members who do not have the experience to sit on a committee as regular members.  However, the membership requirements may also be waived in expediting the scheduling a hearing.

The hearings are transcribed.  The committee members have subpoena powers to bring in witnesses to testify on behalf of the State Bar or the applicant.  As the applicant has the burden, they are allowed to open the hearing and close it.  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 supporting members.  The chairperson is usually 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.  At times, they can take many months to complete because of the inability to schedule back to back days for the hearings.

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 attorney for 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 Character & Fitness Committee will issue a decision finding that good character and fitness exists and the Board of Law Examiners should approve the application.  A final decision is made by the Board of Law Examiners based on the recommendation of the Character & Fitness Committee.  This decision can take up to two months because the Board of Law Examiners meets only every 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 to practice law in Michigan.  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 yet been done.  The certification is good for three years.

Appeals from a Negative Recommendation:

Negative recommendations may be appeallable directly the Michigan Supreme Court.

How We Can Help:

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 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 on Character & Fitness.