Defining Character and Fitness

INTRODUCTION

The legal profession in Michigan has a unique system of admitting and regulating its members. Unlike many occupations, attorneys are self-regulating and, to a certain extent, self-selective. A number of histories have examined how American attorneys in training (clerks), following the English tradition, would intern with other attorneys to study the law with mentors. When clerks were deemed ready, they were presented to the local bench and bar who decided whether the apprentice had met the standard for practice, thus "passing the bar," the physical barrier dividing the front of the court from the rear. It was both literal and figurative.

The modern system has taken the licensure of attorneys from these local bars to statewide uniform administration of applications, uniform vetting of credentials and due process. All states have regulations regarding attorney admissions though there are as many systems and standards as there are states and territories.

Though similar to some professions, the legal profession nonetheless has unique characteristics that set it apart from many other professions. Like all jurisdictions, the State Bar of Michigan follows a traditional review of the applicant's credentials; however, Michigan also has requirements that set it apart.

LEGAL BASIS

There are a number of sources that provide standards for admission to practice in Michigan. These include guides published by the State Bar of Michigan (SBM), classes and seminars held in Michigan law schools and numerous on-line sources for admissions data. However, the best place to start is to examine Michigan Compiled Laws. Statutorily, MCL 600.934 sets forth the standard for applicants to meet regarding fitness and good moral character. It states:

600.934 Qualifications for admission to bar; "good moral character" defined; election to use multi-state bar examination scaled score; disclosure of score.

Sec. 934.

(1) A person is qualified for admission to the bar of this state who proves to the satisfaction of the board of law examiners that he or she is a person of good moral character, is 18 years of age or older, has the required general education, learning in the law, and fitness and ability to enable him or her to practice law in the courts of record of this state, and that he or she intends in good faith to practice or teach law in this state. Additional requirements concerning the qualifications for admission are contained in subsequent sections of this chapter. As used in this subsection, "good moral character" means good moral character as defined and determined under 1974 PA 381, MCL 338.41 to 338.47.

(2) A person may elect to use the multi-state bar examination scaled score that the person achieved on a multi-state bar examination administered in another state or territory when applying for admission to the bar of this state, but only if all of the following occur:

(a) The score that the person elects to use was achieved on a multi-state examination administered within the 3 years immediately preceding the multi-state bar examination in this state for which the person would otherwise sit.

(b) The person achieved a passing grade on the bar examination of which the multi-state examination the score of which the person elects to use was a part.

(c) The multi-state examination the score of which the person elects to use was administered in a state or territory that accords the reciprocal right to elect to use the score achieved on the multi-state examination administered in this state to Michigan residents seeking admission to the bar of that state or territory.

(d) The person earns a grade on the essay portion of the bar examination that when combined with the transferred multi-state scaled score constitutes a passing grade for that bar examination.

(e) The person otherwise meets all requirements for admission to the bar of this state.

(3) The state board of law examiners shall disclose to a person electing under subsection (2) to transfer the multi-state bar examination scaled score achieved on an examination administered in another state or territory the score the person achieved as soon as that score is received by the board regardless of whether the person could have obtained that score in the jurisdiction in which the examination was administered. This subsection does not require disclosure by the board of the score achieved on a multi-state bar examination administered in another state or territory until the scores achieved on that examination administered in Michigan are released.

History: 1961, Act 236, Eff. Jan. 1, 1963;-- Am. 1972, Act 87, Imd. Eff. Mar. 20, 1972;-- Am. 1978, Act 289, Eff. July 10, 1978;-- Am. 1980, Act 271, Imd. Eff. Oct. 6, 1980;-- Am. 2000, Act 112, Imd. Eff. May 24, 2000;-- Am. 2004, Act 558, Imd. Eff. Jan. 3, 2005 Constitutionality: Requirement of United States citizenship as a necessary prerequisite for the admission to the practice of law constitutes denial of equal protection of the law under Const 1963, art I, § 2, and US Const, am XIV, § 1. In re Houlahan, 389 Mich 665; 209 NW2d 250 (1973), decided prior to the 1978 amendment.

MCL 600.934(1) uses precise language to set forth its requirements. To practice law in Michigan, you must demonstrate to the satisfaction of the Board of Law Examiners that the applicant:

1. Is 18 years or older;

2. Has the required general education, learning in the law;

3. Has the fitness and ability to enable him or her to practice law in the courts of record in Michigan;

4. Intends in good faith to practice or teach law in Michigan; and

5. Possess 'good moral character'

These are not the only requirements. The Michigan Supreme Court, through the Board of Law Examiners, sets forth more specific requirements in terms of law school requirements, passing scores on the MPRE (Multistate Professional Responsibility Examination) and, of course, the Michigan Bar Examination.

GOOD MORAL CHARACTER

Section (1) references MCL 338.41 through 338.47 as to what constitutes "good moral character." MCL 338.41 states:

338.41 "Good moral character" and "principal department" defined.

Sec. 1.

(1) 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.]

(2) As used in this act, "principal department" means the department which has jurisdiction over the board or agency issuing the license.

History: 1974, Act 381, Eff. Apr. 1, 1975;-- Am. 1978, Act 294, Imd. Eff July 10, 1978 Compiler's Notes: For transfer of powers and duties of adult foster care licensing from the department of social services to the director of the department of commerce, see E.R.O. No. 1996-1, compiled at MCL 330.3101 of the Michigan Compiled Laws. For transfer of powers and duties of the bureau of family services from the department of consumer and industry services to the family independence agency by Type II transfer, see E.R.O. No. 2003-1, compiled at MCL 445.2011. (Id.)

For purposes of an application to practice law, the phrase, "... a propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner." ... defines the most important characteristics of what attorneys need to possess. While these terms may not have the same import for other professions, attorneys are officers of the court, agents of their clients as well as servants of their clients (albeit a paid servant). This implies fiduciary duties on a licensed attorney in regard to conduct not only with clients, but with the courts and the general public as well as in accordance with the Michigan Rules of Professional Conduct (MRPC) 1.8. Thus, the SBM looks for past conduct that, if still present, would hinder an applicant's ability to practice within these standards.

Such a broad and open definition allows for varying interpretations by applicants as well as SBM's Standing Committee and District Committee members. Phrases such as "protect the public" and "entrust to the public" are often used in committee hearings and seen in written opinions. These references relate back to that fundamental definition.

PRIOR CRIMINAL HISTORY

The second statute referenced in MCL 600.943 is MCL 338.42. This statute discusses the effect of a criminal conviction on an applicant who wishes to practice law. It holds:

338.42 Judgment of guilt in criminal prosecution or judgment in civil action as evidence in determining good moral character; notice; rebuttal.

Sec. 2.

A judgment of guilt in a criminal prosecution or a judgment in a civil action shall not be used, in and of itself, by a licensing board or agency as proof of a person's lack of good moral character. It may be used as evidence in the determination, and when so used the person shall be notified and shall be permitted to rebut the evidence by showing that at the current time he or she has the ability to, and is likely to, serve the public in a fair, honest, and open manner, that he or she is rehabilitated, or that the substance of the former offense is not reasonably related to the occupation or profession for which he or she seeks to be licensed. [Emphasis added.]

Manual on the Character and Fitness Process for Application to the Michigan State Bar History: 1974, Act 381, Eff. Apr. 1, 1975;-- Am. 1978, Act 294, Imd. Eff. July 10, 1978 Compiler's Notes: For transfer of powers and duties of the bureau of family services from the department of consumer and industry services to the family independence agency by Type II transfer, see E.R.O. No. 2003-1, compiled at MCL 445.2011. (Ibid.)

Here, the effect of a criminal conviction or judgment in a civil action does not itself prevent one from being licensed. However, it does allow that the conviction to be used as evidence whether the applicant will conduct himself in a fair, honest and open manner. It allows for consideration of whether the person is rehabilitated, how the conviction is associated to the crime and whether that association/judgment affects the ability of the applicant to act in a fair, honest and open manner in the legal profession.

In a profession based in the law, it is a reasonable inquiry for SBM to know the facts of an arrest or a conviction. Sometimes, these revelations demonstrate isolated circumstances and anomalies in an otherwise normal history. Applicants often learn from these experiences and can demonstrate their maturation. Each incident is unique and must be considered in light of the applicant's complete history and circumstances. In instances of re-occurring or serial behaviors, the committee will look for a greater degree of effort in rehabilitation. Restitution and compliance with court orders are relevant as is conduct after court supervision is terminated.

The State Bar of Michigan Standing Committee on Character and Fitness Rules of Procedure (herein SBMCCF Rules) recognizes the provisions of this statute (See Appendix D—Rule E.3.).

For example, a homicide conviction may not necessarily be a bar to licensure where a fraud or theft conviction may be depending on the factors cited in the statute as well as those enumerated in the SBMCCF Rules. Each case will be individually considered in order for a panel to recommend whether it believes that the applicant has the requisite character and fitness.

In essence, an applicant must explain him or herself. This statute and the SBMCCF Rules provide a forum and a structure within which to do so. A more thorough explanation of how this is done is found in the SBMCCF Rules.

USE OF CRIMINAL RECORDS TO REVIEW APPLICANTS

MCL 338.43 discusses the use of criminal records in the examination process for an applicant seeking a license. Keep in mind these statutes apply to all professions, not just the legal profession. It states:

338.43 Using, examining, or requesting certain criminal records prohibited; prerequisites for furnishing criminal records; rules.

Sec. 3.

(1) The following criminal records shall not be used, examined, or requested by a licensing board or agency in a determination of good moral character when used as a requirement to establish or operate an organization or facility regulated by this state, or pursuant to occupational or professional licensure:

(a) Records of an arrest not followed by a conviction.

(b) Records of a conviction which has been reversed or vacated, including the arrest records relevant to that conviction.

(c) Records of an arrest or conviction for a misdemeanor or a felony unrelated to the person's likelihood to serve the public in a fair, honest, and open manner.

(d) Records of an arrest or conviction for a misdemeanor for the conviction of which a person may not be incarcerated in a jail or prison.

(2) A criminal record shall not be furnished to a licensing board or agency except by the principal department, and shall be furnished only after the director of the principal department or a person designated by the director has determined that the information to be provided to the board or agency meets the criteria set forth in this section.

(3) The director or a person designated by the director of the principal department shall promulgate rules for each licensing board or agency under that department's jurisdiction which prescribe the offenses or categories of offenses which the department considers indicate a person is not likely to serve the public as a licensee in a fair, honest, and open manner. Each licensing board or agency may make recommendations to the director regarding the rules to be promulgated. The rules shall be consistent with this act and promulgated pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws. Prior to the promulgation of the rules pertaining to a board or agency, all felonies shall be considered by the board or agency to be relevant to the ability or likelihood the person will serve the public in a fair, honest and open manner.

History: 1974, Act 381, Eff. Apr. 1, 1975;-- Am. 1978, Act 294, Imd. Eff. July 10, 1978 Compiler's Notes: For transfer of powers and duties of the bureau of family services from the department of consumer and industry services to the family independence agency by Type II transfer, see E.R.O. No. 2003-1, compiled at MCL 445.2011. (Ibid.)

Two questions on the Affidavit of Personal History deal with criminal convictions, expunged convictions, arrests and other matters seemingly barred by the above cited statute. Attorneys and applicants, having been trained in the law, are presumed to be knowledgeable of the law and its consequences. Because of the fiduciary role of attorneys, their access to sensitive data, the trust vested in attorneys by their status and license, and their roles as officers of the court, these matters are required to be disclosed to SBM as a routine part of the application. These records may indicate other problems such as substance abuse or mental illness.

There is no cited case law on the issue of an applicant's purposeful non-disclosure of an arrest not leading to a conviction, an expunged arrest, or a conviction that was set aside. However, it is helpful to note that:

As an agent of the Board of Law Examiners, the State Bar of Michigan's Character and Fitness Committee conducts character and fitness investigations of each bar applicant. Thus, the Board of Law Examiners and the Character and Fitness Committee are designated and empowered to discharge the statutorily defined duties of the Michigan Supreme Court. McCready v Michigan State Bar, 881 F Supp 300, 303 (WD Mich, 1995); Scullion v State Bd of Law Examiners, 102 Mich App 711, 715; 302 NW2d 290 (1981).