Rule 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 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 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 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 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 applicant’s admission to the State Bar of Montana immediately be revoked.