Me. Bar. Admiss. R. 9A
the Board, with the written consent of the applicant, may recommend to the Court that the applicant be admitted on a conditional basis. Provided, however, that a lawyer who has been disbarred or suspended from the practice of law or has resigned from the practice of law in another jurisdiction, and has not been reinstated to the practice of law in that other jurisdiction shall be ineligible for conditional admission pursuant to these Rules.
Me. Bar. Admiss. R. 9A
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).
Advisory Committee Note
February 2011
Rule 9A addresses bar admission applicants who have commenced but not completed rehabilitation from past conduct or behavior that indicated insufficient good moral character to qualify for admission to the bar pursuant to Rule 9 of the Maine Bar Admission Rules. It is designed to protect the public and the integrity of the profession in close cases for admission, while encouraging persons having a record of concerning conduct to seek professional assistance and rehabilitation.
For purposes of this Rule "rehabilitation" means restoration to a condition of good physical and mental health and competence and the ability to operate and manage work, finances, business and personal relationships, and health without further risk to self or others from prior conduct indicative of a lack of good moral character.
Conditional admission is not intended to apply to all applicants who have rehabilitated themselves from prior conduct of concern to the Maine Board of Bar Examiners, but only to those whose rehabilitation is sufficiently incomplete that protection of the public requires monitoring for a specified period. The availability of conditional admission does not preclude unconditional admission in cases when rehabilitation has been successful for a sustained time period; neither does it preclude denial of admission in cases when evidence of rehabilitation is established but other factors do not support admission.
Conditional admission is not available to lawyers who are disbarred, suspended from practice, or resigned from practice in other jurisdictions. Such lawyers must be restored to good standing to practice in the other jurisdictions before they can be considered for admission in Maine.
Execution of the conditional admission consent agreement, addressed in subdivisions (b) and (c), by those monitoring a conditionally-admitted lawyer is intended to assure that they will have the opportunity to participate in establishing the conditions of admission. Their participation provides for fully informed establishment of applicable admission conditions. Such execution also assures that those monitoring a conditionally-admitted lawyer are aware of the conditional admission and can act promptly to report or seek resolution of any problems and to initiate disciplinary action, if necessary.
Confidentiality, addressed in subdivision (d), is key to the success of conditional admission. Public disclosure and the stigma that could accompany it may discourage the treatment, diagnosis, and disclosure that the Rule seeks to promote for conduct of concern. Utilizing a confidential conditional admission process in cases of recent or incomplete rehabilitation or treatment results in candor in the process and benefits the public, the applicant, and the courts.
The Maine Board of Bar Examiners, the Maine Board of Overseers of the Bar, and Bar Counsel in drafting this Rule are aware of and have discussed at length the inherent tension between the benefits of confidentiality and the public's, including potential client's, interest in access to all material information about the applicant's good moral character. Without this Rule, under current admission practices, some applicants who would qualify for conditional admission under this Rule might be admitted unconditionally. Observing confidentiality will result in no less information being provided to the public and potential clients than is currently the case when such applicants are admitted unconditionally. It will, however, promote early disclosure and treatment of conduct or behavior of concern. The public's and potential client's interest in access to material information is protected by the requirement that records or documents that are public records in Maine or any other jurisdiction shall remain public records when they become part of the Board's file. Thus, civil and criminal court records and decisions, records and decisions of professional disciplinary regulatory agencies, and other public records relating to an applicant are exempt from the confidentiality requirement.
Pursuant to subdivision (e), the Rule does permit disclosure to the admission authority, the disciplinary authority, and the monitoring authority, to provide protection to the public in case a relapse should occur during a period of conditional admission.
Subdivision (f) provides for an initial maximum conditional admission time period of sixty (60) months, but many conditional admission periods may be considerably less than sixty (60) months. Of the states that currently have a conditional admission rule that provides for a maximum time limit, the majority provide for a maximum of twenty-four (24) months, although the ABA model rule provides for a maximum of sixty (60) months. The initial conditional admission period may vary according to the nature of the conduct or behavior requiring conditional admission, the applicant's history, and any professional opinion regarding probability of relapse. Subdivision (f) also allows the period of conditional admission to be automatically extended upon filing of a complaint to prevent the conditional admission period from expiring of its own terms before the Board can act on an alleged violation of the conditional admission consent agreement, the Maine Bar Rules, or the Maine Rules of Professional Conduct.
Subdivision (g) allows the initial period of conditional admission to be extended as a matter of discretion to address a relapse in prior conduct or behavior of concern. Subdivision (g) also provides limited discretion to modify the terms and time period of the consent agreement, including extending the duration of conditional admission beyond the initial period, if the applicant is determined to have violated the consent agreement by a relapse or recurrence of the conduct of concern. The Rule also provides that the period of conditional admission shall be continued until actions upon any complaint of violation and all available appeals are resolved.
The monitoring and supervision of a conditionally-admitted lawyer may be performed by a lawyer assistance program, an individual member of the Maine Bar, or another agency or entity. The monitoring authority should act on any problem conduct by determining whether it merits notice to the Board of Overseers of the Bar, which is the proper authority to enforce compliance with the terms of a conditional admission consent agreement and to determine violations. A violation of a conditional admission consent agreement will not necessarily result in revocation of admission.
When asserted conduct by a conditionally-admitted lawyer may constitute a violation of a conditional admission consent agreement, a violation of the Maine Bar Rules, or a violation of the Maine Rules of Professional Conduct, such conduct shall be investigated and a determination of violation, if any, reached pursuant to the procedures specified in the Maine Bar Rules.
The Rule is not intended to limit in any way the ability or authority of the Maine Supreme Judicial Court with respect to the admission of any applicant to the Maine Bar nor to affect in any way the ability or authority of the Maine Board of Overseers of the Bar or Bar Counsel to discipline a conditionally-admitted lawyer for violation of the Maine Bar Rules or the Maine Rules of Professional Conduct.
Subdivisions (h), (i), (j), and (k) are self-explanatory provisions addressing reapplication after revocation of conditional admission, responsibility for costs, expiration of conditional admission, and the ultimate authority of the Court to regulate attorneys that is not diminished by this Rule amendment.
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