§ 3-116. Investigation of applicants.

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§ 3-116. Investigation of applicants.

   (A) Purpose. The purpose of character and fitness screening before admission to the practice of law in Nebraska is to ensure the protection of the public and to safeguard the justice system. The attorney licensing practice is incomplete if only testing for minimal competence is undertaken. The public is adequately protected only by a system that evaluates 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 practice of law are worthy of the trust and confidence clients may reasonably place in their attorneys. (Appendix A).

   (B) Authority to investigate. The Commission has the authority to investigate and make determinations as to character and fitness to practice law. The Commission may allow its director to make such investigation of each applicant’s moral character and fitness to practice law when the application shows issues of character and fitness to practice law. The director shall report to the Commission the names of applicants that required investigation and the results of such investigation.

   (1) If the investigation as to character and fitness of an applicant is completed prior to the bar examination and the Commission determines the applicant should not be approved for admission, the Commission may deny the applicant permission to take the examination. In the event an applicant has been denied admission due to character and fitness, he or she shall be prohibited from filing another application for admission for a period of 3 years unless the Commission or Court’s order denying admission provides the applicant an alternative period of time to reapply.

   (2) For applicants that have been granted permission to sit for the examination, the final determination of character and fitness shall be reserved until after the bar examination. The conduct of the applicant through the application and examination process shall be considered by the Commission when determining the character and fitness of the applicant. Such permission to sit for the bar examination does not constitute approval or evidence of approval of the applicant's character or fitness.

   (C) Appearance before Commission. An applicant may be required to appear before the Commission upon reasonable notice and submit to an interview touching upon any matter the Commission deems relevant to the consideration of the pending application.

   (D) Failure to appear. Failure to appear before the Commission as directed shall be sufficient reason for denial of the application.

   (E) Certificate permitting or denying examination.

   (1) Permitting examination. The director of admissions shall provide the applicant a certificate permitting him or her to sit for the bar examination. The certificate shall indicate a reservation of the character and fitness determination until the completion of the bar examination.

   (2) Denying examination. If the applicant fails to meet the examination and admission requirements, written notice thereof shall be given to the applicant as provided in § 3-126.

   (F) Referral to NLAP. The Commission may refer applicants to the Nebraska Lawyers Assistance Program (NLAP) in the event the application indicates criminal alcohol or illegal substance offenses or other information indicating an actual or potential impairment related to a substance use disorder.

   (1) When a referral is made to NLAP, the Commission shall provide to NLAP facts and documentation related to the referral.

   (2) NLAP may:

   (a) recommend the Commission order an evaluation for a substance use disorder or

   (b) formulate a recommendation to the Commission regarding the existence of a substance use disorder and whether NLAP monitoring would be a beneficial condition of admission under § 3-120.

   (3) After the NLAP recommendation, the Commission may make such further investigation as it deems necessary to inform itself concerning the character and fitness of the applicant.

   (4) If additional evaluations are ordered by the Commission, that information shall be made available to NLAP if necessary.

   (G) Further inquiry. The revelation or discovery of any of the following may be treated as cause for further inquiry before the Commission determines whether the applicant possesses the character and fitness to practice law:

   (1) misconduct in employment;

   (2) acts involving dishonesty, fraud, deceit, or misrepresentation;

   (3) abuse of legal process, including the filing of vexatious or frivolous lawsuits;

   (4) neglect of financial responsibilities;

   (5) neglect of professional obligations;

   (6) violation of an order of a court, including child support orders;

   (7) evidence of mental or emotional instability;

   (8) evidence of drug or alcohol dependence or abuse;

   (9) denial of admission to the bar in another jurisdiction on character and fitness grounds;

   (10) disciplinary action by an attorney disciplinary agency or other professional disciplinary agency of any jurisdiction (Appendix A); or

   (11) citation, arrest, charge, or conviction for any criminal offense.

   The Commission may seek the assistance of a medical, psychological, or other expert of the Commission’s selection in determining the character and fitness of the applicant, and may require the applicant to submit to an independent evaluation conducted by an appropriate health care professional selected by the Commission. The cost of the independent evaluation shall be paid by the Commission unless otherwise ordered.

   (H) Factors. The Commission will determine whether the present character and fitness of an applicant qualifies the applicant for admission. In making this determination through the processes described above, the following factors should be considered in assigning weight and significance to prior conduct:

   (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 factors underlying the conduct;

   (5) the seriousness of 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 admissions process; and

   (10) the materiality of any omissions or representations.

   (I) Early application for purposes of character and fitness review.

   (1) Any prospective applicant for admission to the Nebraska State Bar who is currently matriculating in an approved law school may file an early application solely for the purpose of receiving a determination of that person's character and fitness for admission. An early application will not substitute for any portion of the regular bar application process, and any person filing such an early application shall still be required to complete all application materials at the time of regular application.

   (2) Decision. After due consideration of an early application, the Commission may:

   (a) Approve the application, with conditions where appropriate, provided that the applicant shall remain subject to all other qualifications for admission to practice;

   (b) Deny the application; or

   (c) Determine that the application is not ripe for consideration and decline to rule on the application.

   (3) A decision to approve the application pursuant to subsection (2)(a) above shall be binding only as to the facts and circumstances under consideration at the time and shall not prevent consideration of undisclosed conduct, subsequent conduct prior to admission or consideration of past facts and circumstances (including those already reviewed as part of an early application) which relate to subsequent conduct either directly or indirectly.

   (4) A denial issued pursuant to subsection (2)(b) shall not prevent a person from filing an application for admission at a later date.

   (5) Subject to approval by the Court, the Commission shall establish a nonrefundable early application fee.

Rule 16 adopted May 22, 1996; Rule 16 amended May 13, 2004. Renumbered and codified as § 3-116, effective July 18, 2008; § 3-116 amended January 11, 2012, effective January 1, 2013; § 3-116(A) and (B) amended December 19, 2012, effective January 1, 2013; amended July 25, 2013, effective August 1, 2013; § 3-116 amended February 12, 2020.