Practicing law is a privilege requiring a license and a continuing duty to conduct oneself personally and professionally according to the Michigan Rules of Professional Conduct.
A law license is initially granted to an applicant upon obtaining a law degree, taking and passing the Multistate Professional Responsibility Examination, taking and passing the bar examination, and successfully demonstrating good moral character and fitness to practice law. For some applicants, the greatest challenge is demonstrating character and fitness for practice because of past or current concerns.
Michigan lawyers suspended for 180 days or more after a finding of misconduct who wish to return to practice are required to demonstrate that they have followed the directives of the discipline order, possess the desire to return to practice, have the requisite proper attitude about their past conduct, and lived in an exemplary manner beyond reproach since the imposition of the suspension, among other requirements, before being reinstated to practice.1 Essentially, they need to once again demonstrate good character and fitness after their misconduct.
These processes are not directly related but seek similar ends. Comparing the two highlights the importance of establishing and maintaining good character and the challenges of reestablishing it if a lawyer must be reinstated to practice.
APPLYING FOR AN INITIAL LAW LICENSE
The application and investigation processes are governed by Rule 15 of the Rules Concerning the State Bar of Michigan. All applicants must show good moral character in order to be licensed.2 To demonstrate character and fitness, the applicant submits an ffidavit of personal history (APH), which triggers a confidential investigation conducted by the State Bar. It is a comprehensive disclosure of the applicant’s personal, professional, academic, and employment history. It is akin to a background check to obtain a “secret” government clearance.3
Good moral character is defined by statute.4 This broad definition allows the SBM to consider all characteristics of a person’s background but focuses mostly on the “… propensity of the person to serve the public in a licensed area in a fair, honest, and open manner.”5 (emphasis added)
The investigation scrutinizes past conduct that suggests an applicant could have problems representing future clients. The Bar considers criminal history, employment history, litigation history, and information from its investigative efforts as well as information derived from the disclosures on the APH. It considers personal conduct while enrolled in law school and will look back at conduct before college if it is relevant. It considers the recency of conduct relative to the time of applying to join the Bar.
The process is confidential, and the applicant’s file and investigation materials are held confidentially.6 Most applications are routine and require little scrutiny. Some applicants are required to provide more information based on disclosures made on their APH. These inquiries may only require a letter of explanation or clarification about a particular matter. Some responses to the APH require an applicant to appear at a district committee and possibly a standing committee hearing.7 These hearings are also confidential.
The attorney licensing process is bifurcated. The State Bar handles the receipt and initial investigation of all new applicants,8 while the Michigan Board of Law Examiners (BLE) is the agency within the Michigan Supreme Court that issues law licenses. It takes the investigatory findings and recommendations of the SBM, conducts its own review where warranted, and renders a final decision. Both entities have their own rules governing their processes.9 Rights of due process for applicants are set forth in the BLE Rules, Statutes, and Policy Statements.10
If an applicant seeking to join the Bar is denied, the applicant must wait two years before reapplying. This period may be shortened or extended by the BLE depending upon the circumstances of the applicant’s case. The only appeal beyond the BLE is a complaint for superintending control to the Supreme Court.11
RETURNING TO ACTIVE PRACTICE AFTER SUSPENSION
A petition for reinstatement must be completed by a suspended attorney (referred to as a petitioner) seeking relief in the format set forth in the court rules.12
MCR 9.123(B) directs the petitioner to follow the process set forth in MCR 9.124 to request a hearing on the matter. Concurrently, the petitioner submits the petition to the Michigan Attorney Discipline Board (ADB) and the affidavit of personal history to the Attorney Grievance Commission (AGC) disclosing business, financial, and other pertinent information since the time of suspension. With that information, the AGC performs its due diligence investigation; it also takes a sworn statement from the petitioner.
Once that work is completed, the ADB panel is given a report regarding the petitioner’s fitness for practice. Public notice is published in the Michigan Bar Journal announcing the filing of reinstatement petition, the date of the petitioner’s hearing, and an invitation for the public to comment to the AGC on the standing of the petitioner as it relates to reinstatement.13 The comments may be incorporated into the record.
At the hearing, the ADB panel considers the petitioner’s request and reviews the information. The petitioner has the burden of proof to demonstrate that the elements set forth in MCR 9.123 are met.14 The petitioner presents witnesses and relevant evidence regarding reinstatement. Since it is a public hearing, witnesses may testify at the hearing regarding why the petitioner should or should not be readmitted. This testimony may be offered in person or through letters of support. Members of the public and other attorneys may offer their own opinions unsolicited from the AGC or the petitioner.
The panel considers the report, the testimony, and other evidence. It then issues an order reinstating the lawyer or explaining why the petition has been denied. The appellate rights for both parties are provided in the court rules.15 The process is not complete until all appeals have been exhausted.
Depending on the length of the suspension, a successful petitioner will be readmitted to the Bar. If the petitioner is successful but has been out of practice for more than three years, he or she must be recertified by the Board of Law Examiners.16 An unsuccessful petitioner seeking recertification must wait one year before reapplying. MCR 9.124(E) allows for appeal of this decision to the ADB.17
Assuming the reinstatement petition is timely and properly filed, the practical problem is explaining why the suspended petitioner — who has been previously entrusted with a law license and taken an oath to practice in an ethical manner — can be safely reinstated to practice law. Unlike new applicants, a suspended lawyer already has experience in the day-to-day practice of law. It is assumed the lawyer knew or should have known his or her conduct violated the Michigan Rules of Professional Conduct or the Michigan Court Rules.
Another problem is the time it takes to go through the reinstatement process. It is a careful process that involves an investigation and a hearing, both of which take time. The hearing itself requires coordinating the scheduling of the petitioner, panelists, and AGC counsel. Even when reinstatement is granted, it takes time for the opinion to be published. If there is opposition to the action, the AGC can seek an appeal, which can add months to the matter.
Both processes require the applicant/petitioner to show good moral character and fitness, and both use the clear and convincing evidence rule to establish that standard.18 Both processes scrutinize the conduct of the individual. These standards require that the applicant/petitioner demonstrate that they can be trusted with the legal affairs of others.
These processes also recognize a lawyer’s ability to change and become a better person through contemplation and demonstrated action. Proving that real change has taken place is critical to success.
Both processes contemplate due process and are adversarial in nature. In a system of law rooted in the adversarial process, there is a better chance of revealing the facts through critical logic and thorough questioning.
In both hearings, the burden is on the applicant/petitioner. Both hearings require detailed preparation and careful contemplation by the applicant/petitioner and his or her counsel. It is not unusual to call expert witnesses to support claims of personal problems that required intervention.
The attorney reinstatement process requires the petitioner to show exemplary conduct that is beyond reproach while on suspension.19 This standard recognizes that the petitioner previously met the standards for admission to practice, has practiced law, and ought to be knowledgeable of the standards of conduct.20 It focuses on how and why the petitioner violated the standards of practice and how he or she has addressed the underlying issues. It considers whether restitution was paid or why it has not been paid. It considers the petitioner’s remorse and his or her insights since the time of the suspension. If the petitioner worked as a clerk in a law firm, the panel will want to ensure that the petitioner was obeying the discipline order regarding the limitations of a suspended lawyer.21
In the initial application, the petitioner must show current character and fitness. This standard allows the applicant to explain past conduct, demonstrate having learned from past mistakes, and show personal maturity and growth.
The applicant for entry into the Bar has a broader disclosure to make than an attorney returning to practice after discipline. The APH for bar applicants gathers more information. If the new applicant is older than the typical law student, there is more life experience for the applicant to disclose. The confidential nature of the hearing is conducive to open dialogue. It gives SBM investigators and committee members a better chance to explore past conduct and give the applicant a chance to prove his or her current fitness.
The petitioner seeking relicensure has, relatively speaking, fewer items to disclose. However, there are pressures for relicensure including replacing lost income, restoring professional pride, and having the reinstatement take place in public. Some petitioners have vociferous opposition to their return to practice, while others underestimate the requirements of the hearing.
The time factors are different for applicants and petitioners. The SBM application process has some deadlines for submission of documents, but not necessarily for completing an investigation of an applicant. If a district committee meeting and a standing committee hearing are required, the hearing dates and other deadlines are soft. There is no enforcement mechanism if an application goes over any deadline set forth in the Rules Regarding the State Bar. Hearing delays arise and, if you are not working as a lawyer, every moment being unsure of your status seems interminable.
Petitioners have some support in the Michigan Court Rules in terms of AGC and ADB scheduling deadlines once a petition is filed; also, the AGC is required to publish an investigation report. Petitioners also have timelines for appeals set forth in the Michigan Court Rules.22
The relative ease or difficulty in an application to join the State Bar of Michigan or be reinstated as a lawyer is always fact intensive. Beyond being honest and forthright in the process, applicants/petitioners are ultimately required to answer for themselves and their conduct. The ancient Greek maxim “know thyself” is the key to preparation. The proofs needed to demonstrate good character or exemplary behavior lie with the applicant/petitioner. Applicants/ petitioners who embrace their past and have found a way to learn from it do better in the process. Applicants/petitioners who challenge past findings or deny the conduct that led to discipline unnecessarily create a greater burden for themselves.
Both processes recognize our humanity by accounting for behaviors which may have been influenced by addiction or mental health issues. At its best, both processes give the applicant/petitioner the opportunity to document the changes in their lives so we can entrust them to the public to serve as attorneys.
In the end, we want lawyers who have the talent and ability to serve the public admitted and/or returned to practice. When new lawyers are admitted, we want a broad representation of the public. When suspended lawyers are returned to practice, it is not because it’s a right, but because they have earned the trust of the public and their peers.