By Jan Pudlow
Watch what you post on your Facebook or MySpace social networking Web sites, because the Florida Board of Bar Examiners is interested in taking a peek — and not as your “friend.”
The FBBE’s Character and Fitness Commission had recommended in its final report that the board consider expanding its current review of personal Web sites during background investigations “as deemed necessary” and determine whether a question should be added to The Florida Bar application to require that all such sites be listed and access granted to the board.
When the Board of Bar Examiners met in July to finalize its response to the commission’s recommendations, it took up the issue and decided to adopt a policy that the investigation of social networking Web sites be conducted on a case-by-case basis.
“In reaching this policy, the board reasoned that if applicants are required to provide access to their social Web sites, they are likely to delete any derogatory material before staff has the opportunity to review it,” the examiners wrote in their response filed with the Florida Supreme Court.
The Board of Bar Examiners did adopt the policy that investigation of social networking Web sites should be conducted for the following bar applicants:
• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”
• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”
• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;
• Applicants with a history of unlicensed practice of law (UPL) allegations;
• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”
• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”
Rejecting the Ban on Felons
On the commission’s hot-button issue of recommending a permanent ban on convicted felons practicing law, the FBBE rejected that recommendation and gave further explanation in its written response. (See story in August 1 Bar News.)
“The current policy (adopted by the board in 1995) provides that bar applicants who are convicted felons should be the subject of additional inquiry due to the seriousness of their past misconduct. The board has pending before the court a proposed rule amendment that would codify the board’s policy in this area.” In re Amendments to the Rules of the Supreme Court Relating to Admissions to the Bar, Case No: SC08-2296.
In its response filed with the court, the board explained why it prefers its current policy over a blanket disqualification of unpardoned convicted felons.
“First, there is the large disparity in criminal conduct that results in a felony conviction. This disparity can be produced by jurisdictional differences in the prosecution of particular crimes. The disparity can also be caused by societal changing views regarding certain illegal acts. Thus, an illegal drug possession charge that resulted in a felony conviction 30 years ago may result today in a misdemeanor charge or pretrial diversion,” the examiners wrote.
They also noted discretion built into the criminal justice system every step of the way — from the law enforcement officers’ initial arrest to prosecutors’ filing of charges or referral to a diversionary program, to judges’ sentencing decisions.
“For example, one law enforcement officer might arrest an individual for misdemeanor resisting arrest without violence, whereas another officer might arrest the same individual for felony battery of an officer,” the board wrote.
“In the latter scenario, the prosecutor might subsequently refer the case to a pretrial diversionary program, or reduce the felony charge to a misdemeanor in the charging document, or reduce a charged felony to a misdemeanor during plea negotiations. Lastly, even if the defendant were to plead guilty to the felony charge, the trial court must decide whether to adjudicate the defendant guilty (resulting in a felony conviction) or to withhold adjudication (resulting in no felony conviction.)”
The board also expressed concern that it is the executive branch that grants pardons and the reasons differ based on the policies of presidents and governors involved and don’t necessarily require a showing of rehabilitation.
The board concluded the admission of convicted felons is a decision that should rest solely with the Florida Supreme Court under art. V, §15 of the Florida Constitution, and the commission’s proposal “would relinquish some of the court’s decision-making authority in the bar admissions area to the chief executive officers of the state and federal governments.”
During the past 14 years, the board’s current policy of evaluating convicted felons firsthand at investigative and/or formal hearings to determine a “clear and convincing demonstration of rehabilitation” has succeeded in protecting the public and safeguarding the judicial system, the examiners concluded.
Even though the board does not support the commission’s call to permanently bar convicted felons, should the Supreme Court wish to take the matter further, it did offer proposed rule amendments and policy modifications that include requiring public formal hearings for all convicted felons.
To read the FBBE’s full response to the Character and Fitness Commission’s report, go to www.floridasupremecourt.org.