Me. Bar. Admiss. R. 9

As amended through November 25, 2024

Rule 9 - Good Character and Fitness to Practice Law

(a) General Requirement. Each applicant shall produce to the Board satisfactory evidence of good character and fitness to practice law. This burden is initially met by establishing in the completed application and additional materials required by Rule 5 the absence of any information adverse to the applicant's character and fitness to practice law. If any such adverse information is provided in the application and additional materials, or otherwise received by the Board, the applicant has the burden of producing further evidence to explain or rebut such information sufficiently to satisfy the Board that the applicant is of good character and is fit to practice law. The attributes of character and fitness to practice law that are relevant to this determination are those pertinent to the trust placed in lawyers by the public and clients as well as to the requirement that lawyers in this state comply with the Maine Bar Rules and the Maine Rules of Professional Conduct.

(b) Board Review of Character and Fitness. The Board may verify all information that it receives by any appropriate means, including the use of a three-member review panel designated by the Chair pursuant to Rule 4(b). The Board shall publish the list of applicants as soon as possible after May 20 and December 20 of each year with a request that anyone having adverse information bearing on the character and fitness to practice law of any applicant communicate it to the Board.

(c) Review and Additional Investigation.

(1)Determination of Need for Three-Member Panel. Notwithstanding the provisions of (2) herein, if the Chair, based upon the application, certificates, references, unsolicited communications, or other information received, determines that a hearing pursuant to Rule 9(d)(5) is necessary to resolve doubt regarding the applicant's good character and fitness to practice law, then the Chair may forego the designation of a three-member review panel, and direct the matter be set for hearing.

(2)Additional Investigation and Recommendations. If the application, certificates, references, unsolicited communications, or other information received by the Board cause the Board to doubt the good character and fitness to practice law of an applicant, the Chair, if it has not already done so, shall designate a three-member review panel pursuant to Rule 4(b) to conduct an investigation on behalf of the Board. An applicant who is requested upon reasonable notice to appear before the review panel to answer questions may be represented by counsel. Interviews by the review panel shall be recorded by the Board. Any other recording of the interview is prohibited. The review panel may request that Counsel for the Board assist in conducting the investigation. The review panel or, at its request, Counsel for the Board shall notify the applicant of the nature of the investigation and that the investigation is going forward and shall request that the applicant furnish explanations and further information concerning the matter or matters in question. For each investigation, a separate investigative file shall be maintained and shall be available to the review panel and Counsel for the Board. The investigative file shall contain all records and other information pertinent to the investigation, including all information received by the review panel or Counsel for the Board. If the investigation has been conducted by Counsel for the Board, at the conclusion of the investigation Counsel for the Board shall make a recommendation to the review panel, either that the Board find the applicant to be a person of good character and fitness to practice law, or that the Board conduct a hearing to resolve any doubt that remains concerning the applicant's good character and fitness to practice law. Counsel for the Board shall summarize with the recommendation the evidence upon which it is based.

(d) Hearing on Applicant's Moral Character.

(1)Determination of Need. If the review panel, on the basis of all material produced by the applicant or otherwise acquired by the review panel or Counsel for the Board pursuant to subdivisions (a), (b), and (c) of this rule and in light of any recommendation of Counsel for the Board, determines that doubt remains concerning the applicant's good character and fitness to practice law, the Board shall conduct a hearing to determine whether the applicant is a person of good character and fitness to practice law.

(2)Hearing Panel. The matter shall be heard by a panel consisting of all members of the Board except the members of the review panel. The hearing panel shall exercise all powers of the full Board in the conduct of the hearing, and the determination of the panel after hearing shall be the determination of the full Board. Four members of the hearing panel, including one public member, shall constitute a quorum for all actions and decisions.

(3)Representation by Counsel for the Board. Counsel for the Board shall prepare and present the case against the applicant at the hearing under paragraph (5) of this subdivision and shall represent the Board before a single justice of the Supreme Judicial Court or the Law Court on petition under paragraph (6) of this subdivision.

(4)Time of Notification and Hearing. The Board shall notify the applicant and Counsel for the Board of the time, place, and purpose of the hearing immediately after the review panel has decided that a hearing is required. Unless that decision is made after the bar examination, such notification shall be given to the applicant prior to the bar examination. The applicant shall be permitted to sit for the examination if the hearing cannot be held before that time or if the Board has not reached its decision.

(5)Conduct of Hearing.

A. At least 15 days before the time set for hearing, Counsel for the Board shall mail to the applicant and file with the Board a written statement summarizing the evidence that reflects adversely on the applicant's character and fitness to practice law, and stating that all material in the investigative file, other than Counsel for the Board's work product, will be available to the applicant at Counsel for the Board's office during usual office hours for inspection and copying at the applicant's expense. At least 15 days before the time set for the hearing, Counsel for the Board and the applicant or Counsel for the applicant, as the case may be, shall exchange witness and exhibit lists, and each shall provide the Board seven (7) copies of each exhibit intended to be introduced at the hearing by such party.

B. The hearing shall be open to the public, except that to protect the interests of an applicant, witness, or third party, the Board may, upon application and for good cause shown or on its own motion, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement that order. The deliberations of the Board following any hearing under this subdivision shall not be open to the public. The decision of the Board following any hearing under this subdivision shall be made available to the public.

C. Evidence shall be admitted at the hearing if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Board may exclude irrelevant or unduly repetitious evidence and shall observe the rules of privilege recognized by law.

D. The applicant may be represented by Counsel and may present evidence. The applicant and Counsel for the Board may call, examine, and cross-examine witnesses.

E. The Chair of the Board, or the member of the Board presiding at the hearing in the absence of the Chair, shall have the power to administer oaths.

F. The Board shall cause all hearings to be stenographically or electronically recorded in a form that will readily permit transcription.

G. Subpoena. A witness or the applicant may be summoned by subpoena to give evidence or appear before the Board at the hearing. Any member of the Board, a notary public, or any clerk of the Superior or District Court may issue such subpoenas as well as subpoenas duces tecum to compel the production of books, papers, and photographs or other documents or tangible things at or before the hearing. At or before the time specified in the subpoena for compliance therewith, the Board may quash or modify any subpoena issued under this rule if it is determined that the subpoena is unreasonable or oppressive. Witness fees in all proceedings before the Board shall be the same as for witnesses in a civil action in the Superior Court. When a witness who has been subpoenaed fails to appear without reasonable excuse, the Supreme Judicial Court or any justice thereof, or the Superior Court or any justice thereof, or the District Court or any judge thereof, may, on application of the Board, invoke the provisions of Rule 45(f) of the Maine Rules of Civil Procedure for such failure.

H. The Board shall render a written decision within 30 days after the conclusion of the hearing, determining either that the applicant is a person of good character and is fit to practice law or that the applicant has not satisfied the Board that the applicant is a person of good character and is fit to practice law. At the applicant's request, or in the discretion of the Board, a decision adverse to the applicant shall include specific findings sufficient to support the Board's determination. A copy of the Board's written decision and findings, if any, shall be promptly mailed to the applicant or the applicant's counsel and to Counsel for the Board.

(6)Proceedings Following Board Determination.

A. Within 30 days after receipt of the Board's written adverse decision, an applicant may file with the Executive Clerk of the Supreme Judicial Court a petition for admission to the bar seeking a determination that the applicant is a person of good character and is fit to practice law. At the time of filing, the applicant shall serve a copy of the petition upon Counsel for the Board and the Board by ordinary mail.

B. Within 15 days after receipt by the Board of the petition, Counsel for the Board shall file a response on behalf of the Board.

C. Proceedings upon the petition shall be a hearing de novo before a single justice of the Supreme Judicial Court assigned by the Chief Justice to hear the matter. In this paragraph (6), the word "court" shall mean the single justice of the Supreme Judicial Court assigned to hear the proceeding. The following procedures shall apply:

(i) The applicant shall be treated as plaintiff and the Board as defendant, and the proceeding shall be captioned "[name of applicant] v. Board of Bar Examiners."

(ii) Counsel for the Board shall furnish to the applicant, within a reasonable time after the filing of the Board's response, at the applicant's expense, copies of all information in the applicant's Board file and Counsel for the Board's investigative file not previously disclosed, other than Counsel for the Board's work product, and copies of any exhibits presented at the Board's hearing not previously furnished. The stenographic or electronic record of the hearing made in accordance with Rule 9(d)(5) F and any other matter within the possession or control of Counsel for the Board or the Board that is discoverable under Rule 26 of the Maine Rules of Civil Procedure shall be made available to the applicant at Counsel for the Board's office during usual office hours for inspection and copying at the applicant's expense.

(iii) The court may order further production of documents, or may limit production, on motion and a showing of good cause.

(iv) The court may in its discretion hold a prehearing conference with Counsel for the Board and the applicant, or the applicant's attorney, to consider such matters as may aid in the disposition of the proceeding. The court may by written order limit the issues to be heard.

(v) At the hearing, evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The court may exclude irrelevant or unduly repetitious evidence and shall observe the rules of privilege recognized by law.

D. At all times, the applicant retains the burden of producing to the court satisfactory evidence of good character and fitness to practice law and of persuading the court that the applicant is a person of good character and is fit to practice law.

E. If the court is not satisfied that the applicant is a person of good character, or if the court is not satisfied that the applicant is fit to practice law, the court shall enter judgment accordingly. If the court finds that the applicant is a person of good character and is fit to practice law, it shall enter judgment accordingly and shall remand the proceeding to the Board with instructions to issue a certificate of qualification to the applicant, provided that the requirements of Rule 8(2) and Rule 8(3) are met.

F. The applicant or the Board may appeal to the Law Court as in a civil action within 10 days from the entry of the judgment of the single justice.

G. When the court enters a judgment against the applicant, if it determines that the grounds of the petition were frivolous, it may require the applicant to pay the reasonable expenses incurred by the Board and Counsel for the Board in the investigation of the matter or in the conduct of hearings before the Board or before the single justice or the Law Court. The court may make such orders as are just concerning the payment of such expenses.

Me. Bar. Admiss. R. 9

Amended effective 4/10/1988; 2/26/1990; 1/1/1993; 1/2/1996; 9/25/2000; amended August 2, 2024, effective 8/7/2024.

Advisory Note - August 2024

This amendment formalizes the Board's procedure for interviewing an applicant as part of an investigation of character and fitness. The applicant is entitled to reasonable notice and to full representation by counsel during the interview. The interview shall be recorded by the Board. Maine's procedure follows the majority of jurisdictions in not allowing applicants or their counsel to record the interview.

Advisory Committee Note to Amendments to

Rules 5, 8, 9 and 9A - November 2011

The Maine Bar Admission Rules presently require an applicant to produce satisfactory evidence of "good moral character" as a prerequisite to admission to the bar. These proposed amendments change various rules provisions to replace "good moral character" with "good character and fitness to practice law."

While "good moral character" is a term found in the statute, see 4 M.R.S. §805-A(2)(A), the Board of Bar Examiners has long been aware that a number of other jurisdictions use different words or phrases to express either this general concept or something similar to it. Moving from "good moral character" to "good character and fitness to practice law" is appropriate because, in the Board's experience, (1) the word "moral" does not serve to usefully further illuminate the various attributes of "good character" that are a prerequisite to admission to the bar, and (2) an applicant may be of good character but, for some other reason, is still unfit to practice law. An example of the latter instance is an applicant who may have a severe, untreated disorder or substance abuse problem that renders the applicant, in his or her current state, unfit to practice law.

The Board intends that these proposed amendments apply to all applications pending on the date the amendments take effect, as well as to all applications filed thereafter.

The Board also takes this opportunity to make the following housekeeping amendments:

· References in Rule 9(a) and Rule 11A(d) to the Maine Bar Rules are supplemented with references to the Maine Rules of Professional Conduct.

· The cross-reference in Rule 9(d)(5)(G) to M.R.Civ.P. 45(e) is replaced with a cross-reference to M.R.Civ.P. 45(f).

· The cross-reference in Rule 9(d)(6)(E) to Rule 8(2) is replaced with a cross-reference to Rule 8(2) and Rule 8(3).