Author: Peyton B. Engel
Phone: (608) 257-0945
Admission to the practice of law in Wisconsin is conditioned, among other things, on satisfaction of a set of character and fitness requirements. SCR 40.02(3). There are no hard-and-fast standards; rather, the stated goal is “limit admission to those applicants found to have the qualities of character and fitness needed to assure to a reasonable degree of certainty the competence of services performed for clients and the maintenance of high standards in the administration of justice.” SCR 40.06(1).
The first thing to note is that these requirements are Wisconsin Supreme Court Rules: the decision to admit or deny an applicant ultimately rests with the state’s Supreme Court. That fact informs the entire process of character and fitness evaluation. The Supreme Court has appointed the Board of Bar Examiners to administer the admission of bar applications, including character and fitness matters.
The application for admission to practice law in Wisconsin includes a character and fitness component, in which applicants must disclose their histories, including some mental health issues and any criminal or disciplinary matters, and provide references. Each file is assigned to an investigator. Many applications sail past this stage, but when something in an application catches an investigator’s attention, the investigator may request additional information.
This is the first sign that an application may face trouble. It is important to take the investigator’s questions seriously, to respond promptly and completely, and to bear in mind that the investigator will probably consult other sources, such as court records or witnesses, to corroborate what the applicant has said. For better or worse, few applicants consult a character and fitness attorney at this point, and as a result, they may set themselves up for further difficulties as the process moves forward.
The investigator will next file a report, which the Board will consider. Before declining to certify an applicant’s fulfillment of the character and fitness requirement, the Board sends a letter, called an “at risk notice,” advising the candidate that his or her application will be denied, and informing the candidate of the right to request a hearing or to file a written supplement to the existing record.
Candidates who request a hearing are provided with the investigator’s report, and the materials on which it was based. See SCR 40, Appendix BA 6.045(a). Hearings take place before the Board, and candidates can be represented by counsel, and may call witnesses and submit documents. BA 16.065. It is at this point that the services of an experienced attorney can be especially helpful.
A Board hearing is a somewhat unique proceeding. There is no judge or jury: the Board members are the ultimate decision-makers, and the outcome is determined by a majority vote. BA 16.17. There is a court reporter, and testimony is offered under oath, but there are no formal rules of evidence. There is no adversary counsel: the Board members each take turns asking questions of witnesses. The candidate has the opportunity to make an opening statement and a closing argument. See, generally, BA 16.11-16.15.
The Board is not looking for excuses to deny applications. That said, the burden is on the candidate to establish that he or she has the requisite character and fitness for admission to practice law in Wisconsin. SCR 40.06(3). An attorney who is conversant with the Board’s standards and procedures, and who is familiar with the case law governing admission to practice can help maximize an at-risk applicant’s chances.
A candidate who does not prevail at a hearing can request a review of the decision by the Board, but the ultimate responsibility for regulating admission to the bar rests with the state Supreme Court. See In re Bar Admission of Rippl, 2002 WI 15, ¶ 3, 250 Wis. 2d 519, 639 N.W.2d 553; In re Bar Admission of Vanderperren, 2003 WI 37 ¶ 2, 261 Wis. 2d 150, 661 N.W.2d 27. The Supreme Court’s attitude is that it is better for the Board to err on the side of caution and let the Supreme Court grant the application on review than it is for the Board to admit a questionable applicant, because in that circumstance there would be no opportunity for the court to exercise its discretion. Rippl, Id.
For most applicants, the character and fitness requirement is a simple and straightforward matter. For others, who have events in their past that might raise questions, it is worthwhile to consult an attorney who does character and fitness work. While a candidate who receives an “at risk” letter is not required to retain counsel, that letter is an indication that the candidate’s efforts thus far have not persuaded the Board. Obtaining a law degree is costly, in terms of time, effort, and money—that investment is worth protecting, and an attorney can help minimize the chance that the character and fitness requirement will stand in the way of licensure in Wisconsin.