Focus on Professional Responsibility--A Lawyer’s First Experience With Professional Regulation: The Character and Fitness Process

by Thomas K. Byerley

There are three hurdles all lawyers must clear before they receive a law license: graduation from an approved law school, passing the bar examination, and passing a character and fitness investigation. Although most lawyers are intimately familiar with the first two hurdles, most know little about the character and fitness process. Since this is a prospective lawyer’s first experience with professional regulation, the character and fitness process merits examination.

Many lawyers do not know that the Board of Law Examiners (BLE), in addition to writing and grading the bar examination, makes the final determination on whether or not an applicant currently possesses the requisite character and fitness to practice law in this state. MCL 600.925. However, pursuant to Rule 15 of the Rules Concerning the State Bar of Michigan, the Bar, through its Standing Committee on Character and Fitness, makes a thoroughly researched recommendation to the BLE on all applicants for admission.

All individuals who seek to become members of the State Bar of Michigan must file with the State Bar an Affidavit of Personal History. In filling out the affidavit, the applicant is required to disclose a detailed history of all relevant life events, including criminal history, litigation history, financial history, and general fitness. The applicant is also required to sign the affidavit under oath and, importantly, to advise the Bar of any changes in the accuracy of the affidavit. Fingerprint cards (for checking criminal history) and the applicable investigation fee must accompany the affidavit. At some point in the application process, the applicant must also provide copies of driving records, criminal clearances, law school character and fitness certification, and references.

Between 35 and 60 percent of applicants are approved administratively simply on the review of the Affidavit of Personal History and comparison with official records. Many other applicants are approved administratively after an investigation by the Character and Fitness Department investigators. For approximately 10-12 percent of applications received, however, there are character and fitness issues that remain after administrative review.

Of the approximately 1,400 applications received each year, about 100 of the applicants are referred to district committees for interviews. These district committees are assembled and convened throughout the state, utilizing the contributions of approximately 130 volunteer lawyers. Members of the district committees volunteer their time to interview applicants and to prepare written recommendations based upon those interviews.

The Standing Committee on Character and Fitness, a committee of 24 lawyers appointed by the State Bar president, reviews the recommendations of the district committee. After review, the standing committee may agree with the district committee recommendation, require additional investigation, or require a full hearing before the standing committee. The final hearing may result in agreement or disagreement with the district committee.

Each year, the standing committee holds between 22 and 35 evidentiary hearings (about two percent of the yearly applicants) to consider serious character and fitness issues that are discovered during the investigation. The hearing is trial-like: The standing committee acts as the fact-finding body, evidence is presented, sworn testimony is offered, a court reporter records testimony, and the applicant has the right to retain counsel. A volunteer lawyer (usually a member of the committee) is assigned the task of representing the interests of the State Bar at the hearing. The applicant has the burden of proof to show by clear and convincing evidence that he or she currently possesses the requisite character and fitness to practice law in this state.

Once the standing committee has completed its hearing, a final report and recommendation is transmitted to the BLE for its consideration. An individual who receives an unfavorable recommendation from the standing committee may request a final hearing before the BLE. The BLE may also decide to conduct a review hearing on some individuals that the standing committee has recommended for approval. The BLE’s determination on character and fitness is final.

What conduct triggers a character and fitness investigation? The Standing Committee on Character and Fitness has developed standards for conduct that leads to detailed investigation. Conduct meriting investigation includes:

•Unlawful conduct (including criminal offenses)

•Academic misconduct

•Making false statements, including omissions

•Misconduct in employment

•Acts involving dishonesty, fraud, deceit, or misrepresentation

•Abuse of the legal process

•Neglect of financial responsibilities

•Neglect of professional obligations

•Violation of a court order

•Evidence of mental or emotional instability

•Evidence of drug or alcohol dependency

•Denial of admission to the bar in another jurisdiction on character and fitness grounds

•Activities that constitute practicing law without a license

•Disciplinary actions by a lawyer (or other professional) disciplinary agency

There is no conduct that "automatically" disqualifies an individual from passing the character and fitness examination. Many people are surprised to learn that the most common reason for character and fitness denial is lack of candor to the committee, not some particular bad act. Indeed, the committee is particularly sensitive to the applicant’s ability to handle and resolve any past problems and their candor relating to such problems. The types of conduct that most often result in denials are lack of candor, neglect of financial responsibilities, involvement in civil litigation, criminal convictions, and employment terminations.

The overwhelming majority of applicants who apply for admission to the State Bar of Michigan are approved after the character and fitness process. However, the character and fitness process is designed to protect the public from individuals who do not possess the requisite character and fitness to practice law in this state. Michigan is considered to be a leader in the United States in its character and fitness process.

Michigan’s system works well for a number of reasons. First and foremost, it works because lawyers from all over the state volunteer their time and efforts to serve on district committees, the standing committee (chaired by Michael Leib of Southfield), and as State Bar counsel. The members of the district committees and standing committee are comprised of practicing lawyers, lawyers in administrative positions, and judges. They give hundreds of hours. Their law firms, employees, partners, and staff should be congratulated for allowing them to serve the Bar and the public. Lawyers who volunteer their time get little, if any, public recognition, but these contributions are the backbone of the character and fitness process. Second, the staff of the Character and Fitness Department at the State Bar, led by Diane Van Aken, works quietly and efficiently to process all applications in a highly professional and expedited manner. Finally, the system works because of the strong cooperation between the State Bar of Michigan and the BLE.

With the continued participation and cooperation of the many lawyers who volunteer their services to this process, the State Bar of Michigan will continue to be a national leader in regulating the legal profession.