October 23 2012
RULES OF PROCEDURE OF THE
COMMISSION ON CHARACTER AND FITNESS
OF THE
SUPREME COURT OF MONTANA
Effective October 23, 2012
SECTION 1: PURPOSE
The primary purposes of character and fitness screening before admission to the
Bar of Montana are to assure the protection of the public and safeguard the justice
system. An attorney should be one whose record of conduct justifies the trust of
clients, adversaries, courts, and others with respect to the professional duties owed to
them.
The public is adequately protected only by a system that evaluates the character
and fitness as those elements relate to the practice of law. The public interest requires
that the public be secure in its expectation that those who are admitted to the bar are
worthy of the trust and confidence clients may reasonably place in their attorney.
SECTION 2: DEFINITIONS
Except as otherwise indicated, the following definitions apply:
(a) "Applicant" as used in these rules refers to any person applying or
reapplying for temporary or permanent admission to practice law in Montana. This
does not include those applying for admission pro hac vice.
(b) "Commission" as used in these rules refers to the Commission on
Character and Fitness, whose members are appointed by the Montana Supreme Court.
(c) "Fitness" as used in these rules is the assessment of mental and
emotional health and condition as it affects the competence of a prospective attorney.
The purpose of requiring an applicant to possess this fitness is to exclude from the
practice of law any person having a mental or emotional illness or condition which
would be likely to prevent the person from carrying out duties to clients, courts, or the
profession. An applicant may be of good moral character, but may be incapacitated
from proper discharge of his or her duties as an attorney by such illness or condition.
The fitness required is a present fitness, and prior mental or emotional illness or
conditions are relevant only so far as they indicate the existence of a present lack of
fitness.
(d) "Good Moral Character" as used in these rules refers to the qualities of
fairness, discreetness, honesty, reasonableness, unquestionable integrity, and ability
and willingness to act in accordance with the standards set forth in the Montana Rules
of Professional Conduct.
(e) "Certification" as used in these rules refers to permission to sit for the
Montana bar examination and/or be admitted to the practice of law in Montana.
(f) "State Bar of Montana" is the entity administratively serving the
Commission, providing staff and prosecutorial support.
SECTION 3: GENERAL POWERS
(a) Administration of Oaths. Any member of the Commission shall have
power to administer oaths in relation to any matter within the functions of the
Commission.
(b) Admission to the Bar. The Commission shall conditionally or
unconditionally certify to the Supreme Court for admission to the Bar such applicants,
and only such applicants, who possess the necessary qualifications of good moral
character and fitness to practice law, as defined in these rules.
(c) Commission and Staff Judicial Immunity. In exercising its functions and
powers, the Commission, its members, employees, and all personnel through whom
the Commission functions, including the State Bar of Montana and mentors mandated
by the Commission, shall enjoy such judicial immunities as the Montana Supreme
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Court would enjoy if performing the same functions. The Commissioners and/or their
designees shall not disclose to any third party any information obtained with respect to
the character and fitness of any applicant, declarant, or conditionally certified
applicant, except:
1. upon written authority of such applicant, declarant, or conditionally
certified applicant;
2. in response to valid subpoena from a court of competent jurisdiction;
3. to the Montana Supreme Court, the Montana Supreme Court
Commission on Practice, Office of Disciplinary Counsel, the Montana
Board of Bar Examiners, or the Montana Lawyers Assistance Program;
4. upon written request from other admitting bar agencies or other bar
associations when accompanied by an authorization and release duly
executed by the person about whom such information is sought;
5. upon written request from the law school from which the applicant will
graduate or has graduated; and
6. to the National Conference of Bar Examiners.
(d) Subpoena Power. The Commission chair shall have power to issue
subpoenas for the attendance of witnesses or for the production of documentary
evidence before the Commission or before anyone authorized to act on behalf of the
Commission. The party desiring issuance of such subpoena shall apply therefor with
the Commission.
(e) Taking of Testimony. Any member of the Commission, and any other
person who has the power to administer oaths, shall have power, upon order of the
Commission, to take testimony in reference to any matter within the function of the
Commission.
(f) Third-Party Privilege. Records, statements of OpInIOn, and other
information regarding an applicant for admission to the bar communicated in good
faith and without malice by any entity, including any person, firm, or institution, to the
Commission or its members, employees, or agents are privileged, and no evidence
thereof is admissible in any lawsuit. Waiver, if any, of such privilege by voluntary
disclosure shall be determined under M. R. Evid. 503.
(g) Fees and Expenses. Commission members shall be entitled to actual and
necessary travel and per diem compensation provided by the State Bar of Montana for
its committees. The Commission may engage professional staff through the State Bar
of Montana necessary to accomplish its tasks.
(h) Other Powers. The Commission shall have such other powers as are set
out in the Rules for Admission to the Bar of the State of Montana. The powers set out
in these rules regarding subpoenas, discovery, and testimony shall be governed where
applicable by the Montana Rules of Civil Procedure.
SECTION 4: MORAL CHARACTER & FITNESS
(a) Every applicant for admission to the Bar of Montana shall be of good
moral character and fitness. The applicant shall have the burden of proving by clear
and convincing evidence that he or she is possessed of good moral character and
fitness. No applicant shall be certified by the Commission to the Bar Admissions
Administrator for examination and/or admission to the Bar of Montana unless such
applicant first produces satisfactory evidence to the Commission of good moral
character and an adequate knowledge of the standards and ideals of the profession and
that such applicant is otherwise fit to take the oath and perform the obligations and
responsibilities of an attorney. The Commission must be convinced that prior or
present conduct of the applicant of which the Commission becomes aware would cause
a reasonable person to believe that such applicant would, if admitted to practice law in
Montana, be willing and able to act in accordance with the standards set forth in the
Montana Rules of Professional Conduct, and would act fairly, discreetly, honestly,
reasonably, and with unquestionable integrity in all matters in which he or she acts as
an attorney at law. An attorney should be one whose record of conduct justifies the
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trust of clients, adversaries, courts, and others with respect to the professional duties
owed to them. A record manifesting a lack of honesty, trustworthiness, diligence, or
reliability of an applicant may constitute a basis for denial of admission.
(b) Evidence of any of the following will be treated by the Commission as
cause for further inquiry before the Commission decides whether the applicant
possesses the character and fitness to practice law:
1. Unlawful conduct;
2. Academic misconduct;
3. Making or procuring any false or misleading statements or omissions of
relevant information, including any false or misleading statement or
omission in the Application for Admission to the Bar of Montana, or in
any testimony or sworn statement submitted to the Commission;
4. Misconduct in employment;
5. Acts involving dishonesty, fraud, deceit, or misrepresentation;
6. Abuse oflegal process;
7. Neglect of financial responsibilities;
8. Neglect of professional obligations;
9. Violation of an order of the court;
10. Current mental or emotional illness or disorder;
11. Drug or alcohol dependency;
12. Denial of admission to the bar in another jurisdiction on character and
fitness grounds;
13. Disciplinary action by a lawyer disciplinary agency or other professional
disciplinary agency of any jurisdiction; and
14. Any other conduct which reflects adversely upon the character or fitness
of the applicant.
(c) In making the determination on character and fitness of each applicant,
the following factors shall be considered in assigning weight and significance to prior
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conduct of the applicant:
1. The applicant's age at the time of the conduct;
2. The recency of the conduct;
3. The reliability of the information concerning the conduct;
4. The seriousness of the conduct;
5. The factors underlying the conduct;
6. The cumulative effect of the conduct or information;
7. The evidence of rehabilitation;
8. The applicant's positive social contributions since the conduct;
9. The applicant's candor in the admission process; and
10. The materiality of any omissions or misrepresentations.
(d) An applicant may, by written request to the Commission on Character
and Fitness, withdraw an Application for Admission at any time. However, in such
event, the Commission may continue its investigative and adjudicatory functions to
conclusion. Failure on the part of the applicant to provide requested information
and/or documentation within a reasonable amount of time may result in denial of
certification for examination and/or admission.
(e) Alternatively, an applicant may, by written request, withdraw with
prejudice an application for admission to the Bar of Montana. The Commission shall
accept the withdrawal with prejudice and shall immediately dismiss its investigative
and adjudicatory functions. An applicant who files a withdrawal with prejudice shall
be permanently barred from filing a subsequent application for admission to the Bar of
Montana.
(t) An applicant who has been disbarred from the practice of law in another
jurisdiction shall not be eligible to apply for admission to the Bar of Montana for a
period of five (5) years from the date of disbarment. The applicant must also submit
written proof of compliance with the terms and conditions of his or her disbarment or
proof of good standing from the state in which he or she was disbarred.
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(g) An applicant who has been suspended from the practice of law in another
jurisdiction shall not be eligible to apply for admission to the Bar of Montana until
expiration of the period of suspension and until the applicant has submitted written
proof of compliance with the terms of the suspension.
(h) An applicant who resigned from the practice of law in another
jurisdiction in lieu of discipline or in lieu of cooperating with the disciplinary process
shall not be eligible to apply for admission to the Bar of Montana for a period of five
(5) years from the date of resignation.
(i) An applicant who initiated the admissions process in another jurisdiction,
but was denied admission or withdrew from the process prior to a final determination
on admission in that jurisdiction, shall not be eligible to apply for admission to the Bar
of Montana until the original jurisdiction has made a final determination on the
applicant's admissibility in that jurisdiction, unless the Commission grants a waiver for
good cause shown.
U) An applicant found guilty of a felony is conclusively presumed not to
have present good moral character and fitness. The presumption ceases upon
completion of the sentence and/or period of probation.
(k) There shall be a rebuttable presumption that nondisclosure of a material
fact on the application is prima facie evidence of the lack of good character. The
presumption shall be the same whether the nondisclosure is discovered prior or
subsequent to the applicant's admission to the bar. The presumption may be rebutted
by clear and convincing evidence of mistake or of rehabilitation and current good
character.
SECTION 5: INVESTIGATION, HEARING, & CONDITIONAL
CERTIFICATION PROCESS
(a) Initial Investigation. Every applicant's moral character and fitness to
practice law shall be investigated by the Bar Admissions Administrator and the
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National Conference of Bar Examiners.
1. Any concerns the Bar Admissions Administrator has will be referred to a
subcommittee of two (2) members of the Commission for further
investigation.
2. In every such investigation, the Bar Admissions Administrator or the
State Bar of Montana may obtain such information as bears upon the
character, fitness, and general qualifications of the applicant and
administer oaths and affirmations, and compel by subpoena the
attendance of witnesses and the production of books, papers, and
documents. Any member of the Commission may administer such oaths
and affirmations and have all other powers as set forth under Section 3.
3. Objection to any applicant may be made by any person by filing with the
Commission a sworn statement setting forth the basis for the objection.
This statement will be made available to the applicant.
4. The subcommittee may require sworn taped interviews with an applicant
to clarify information in the application, to determine eligibility for
admission, or to facilitate the investigation.
(b) Post Investigation. Following its investigation, the Bar Admissions
Administrator or the State Bar of Montana shall recommend to the Commission that an
applicant be granted certification; granted conditional certification subject to
probationary terms as specified by the subcommittee; or denied certification.
1. In the event the subcommittee recommends denial of certification for
examination and/or admission, written notice shall be served upon the
applicant advising the applicant as to the matters which, if proven, would
preclude a favorable finding by the Commission.
2. If such notice is served upon an applicant, the applicant shall file an
answer to the notice within twenty (20) days from receipt of the notice.
If an applicant fails to file an answer to the notice within such time or
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within any extension of time allowed by the Commission, the matters
shall be deemed admitted and the Commission shall enter findings of
fact, and appropriate conclusions of law, which may include a
recommendation that the applicant not be admitted to the State Bar of
Montana.
3. In the event the subcommittee does not agree upon a recommendation,
the full Commission will decide whether to certify, conditionally certify,
or deny certification for examination and/or admission. Such decision
will be by a majority vote of the full Commission.
(c) Hearing. In the event the applicant is denied certification, the
Commission shall notify the applicant in writing of the specific reasons for denial.
The applicant shall have thirty (30) days from receipt of the decision to file a written
request for hearing. The hearing panel shall consist of the remaining members of the
Commission not participating in the investigation of the applicant. A majority of the
hearing panel shall make the final decision.
1. The Commission shall notify the applicant in writing of the date, time,
and place of such hearing and of the applicant's right to be represented
by counsel at the hearing, to examine and cross-examine witnesses, to
adduce evidence bearing on the aforesaid adverse matters and upon the
applicant's moral character and general fitness to practice law and, for
such purposes, to make reasonable use of the Commission's subpoena
powers.
2. If the applicant files a written request for hearing, the applicant must
supply a list of witnesses, including addresses and phone numbers, and
all supporting documentation including evidence, affidavits, exhibits,
etc., he or she feels is necessary to support his or her certification at least
ten (10) days prior to the hearing. The applicant must supply the original
and nine (9) copies of all such materials to the Commission's office, 7
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West Sixth Avenue, Suite 2B, P.O. Box 577, Helena, MT 59624.
3. The hearings before the Commission shall be open unless the applicant
requests that they be private and the panel chair rules that the applicant's
individual privacy requires that the meeting be closed. In making this
determination, the panel chair must find that the demands of individual
privacy clearly exceed the merits of public disclosure.
4. The burden of proof shall be on the applicant to establish by clear and
convincing evidence that the applicant is possessed of good moral
character and general fitness to practice law.
5. Rules of Evidence need not be observed. The Commission may, in its
discretion, take evidence in other than testimonial form, having the right
to rely upon records and other materials furnished to the Commission in
response to its request for assistance in its inquiries. The Commission
may, in its further discretion, determine whether evidence to be taken in
testimonial form shall be taken in person at the hearing or upon
deposition, but all testimonial evidence shall in either event be taken
under oath. A complete stenographic record of the hearing shall be kept,
and a transcript may be ordered by the applicant at the applicant's own
expense.
6. The Commission on Character and Fitness shall, when denying
admission, issue written findings of fact, conclusions of law, and
decision concerning the applicant's character and fitness to practice law.
(d) Conditional Certification.
1. The subcommittee or a majority of the remaining members of the full
Commission may conditionally certify the applicant for examination
and/or admission. The subcommittee and Commission may require
specific probationary terms for admission, including, but not limited to,
requiring alcohol or drug treatment, requiring medical care, requiring
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psychological or psychiatric care, requiring professional office practice
or management counseling, requiring enrollment with a consumer credit
counseling service, requiring practice supervision, requiring notice to the
Commission on Character and Fitness if a complaint against the
applicant is filed by the Commission on Practice and/or Office of
Disciplinary Counsel, and requiring professional audits or reports. The
Commission may require persons to supervise the probation and may
recommend that cooperation with such supervisors be a probationary
term. The Commission may reqUire a specific duration for such
probationary terms.
2. If the applicant refuses the subcommittee's final terms of the conditional
admission, the character and fitness process will proceed as if the
subcommittee had recommended denial as provided under Section
5(b)(1) of these Rules.
(e) Failure to Comply with Stipulation. Upon failure to comply with the
terms and conditions of the conditional certification stipulation, the Commission may:
1. Request evidence of compliance with the stipulation be submitted to the
Commission within ten (10) days following the date of the request.
2. In the event there is continued non-compliance with the stipulation, the
Commission may convene a show cause hearing at the request of the
applicant applying the provisions of Section 5(c) of these Rules. Prior to
completion of the conditional admission period, the Commission may
conclude that violation of any probationary terms may be grounds to
withdraw certification for admission and examination. After completion
of the conditional admission, the Commission may conclude that
violation of any probationary terms for admission may be grounds for
recommendation by the Commission to the Montana Supreme Court that
applicant's certification to practice law be revoked and that the
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applicant's admission to the State Bar of Montana immediately be
revoked.
SECTION 6: SUPREME COURT REVIEW
(a) The findings of fact, conclusions of law, and final decision of the
Commission shall be conclusive unless a verified Petition for Review shall be filed by
the applicant with the Montana Supreme Court within thirty (30) days following
service upon the applicant of the findings, conclusions, and decision in the manner
provided by these rules. A copy of the Petition for Review shall also be filed with the
Commission. Within thirty (30) days of receipt of said Petition, the Commission shall
transmit the entire record to the Clerk of the Supreme Court and a response to the
Petition fully advising the Court as to the Commission's reasons for its decision, and
admitting or contesting any assertions made by the applicant in said Petition.
(b) Any interlocutory order of the Commission shall be subject to review as
provided by Rule 17 of the Montana Rules of Appellate Procedure.
(c) To the extent practicable, an appeal by an applicant for admission to the
practice of law from a final decision of the Commission shall be governed by the rules
set forth in the Montana Rules of Appellate Procedure.
(d) If the applicant is, was, or has applied to be licensed to practice law in
another jurisdiction, the Commission may provide such jurisdiction(s) with a copy of
their findings of fact, conclusions of law, and final decision without prior approval
from the applicant.
SECTION 7: REAPPLICATION
Except as otherwise specified within these rules, an applicant denied
certification may reapply for admission no earlier than four (4) years from the date of
the final decision. "Final decision" refers to the last decision made: by the Supreme
Court if the matter has been appealed, or by the Commission if it has not been
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appealed. The applicant must be able to demonstrate, by clear and convmcmg
evidence, rehabilitation and current fitness to practice law.