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August 15, 2013
Citizenship should not factor in Bar admissions

By Gary Blankenship
Senior Editor

Citizenship status should not be a factor in determining Bar admissions but any policy on that issue should be in Bar admission rules, not the Rules Regulating The Florida Bar, according to the Bar Board of Governors.

On July 26, the board took that position, recommended by its Rules Committee, in response to a petition prepared by Tallahassee attorneys Sandy D’Alemberte and Patsy Palmer, who represent José Manuel Godinez-Samperio.

Sandy D'Alemberte The petition would amend Bar Rule 1-3.1 to provide, “No person who has complied with the requirements for admission to The Florida Bar shall be disqualified because he or she is not a United States citizen.”

Godinez-Samperio was an undocumented immigrant who came to this country with his parents when he was 9, and graduated from law school and passed the bar exam. He is the subject of a pending case at the Supreme Court where the Florida Board of Bar Examiners asked the court if under the Rules of the Supreme Court Relating to Admissions to the Bar undocumented immigrants can be admitted to the Bar. (See story in the July 1 News.)

The Department of Justice filed an amicus brief saying under federal law Godinez-Samperio could not be admitted.

However, since the court heard oral arguments last October, Rules Committee Chair John Alpizar told the board Godinez-Samperio has qualified under the new federal Deferred Action for Childhood Arrivals program and is now lawfully in the country. He has obtained a Social Security card, a driver’s license, and a work permit. He now works as a law graduate at a legal aid agency.

Alpizar also said no other state-licensed profession in Florida has a citizenship requirement.

“The petition and Mr. D’Alemberte candidly stated that the proposed amendment may fit more neatly with the rules for admission to the Bar, and they pointed out those rules contain no procedure for Florida lawyers to have standing to propose amendments. The court, of course, can address the issue of the admissions,” Alpizar said.

He added that the Rules Committee voted 6-1 that: “The board supports the concept [that citizenship should not be a requirement for Bar admission], but believes the concept is more appropriately placed in the rules for Bar admission and recommends that the court seek input from the Board of Bar Examiners on the issue.”

Board member Jack Hickey, who noted his wife is a foreign-born legal resident and a Bar member, supported the recommendation.

“There is no reason this should not pass,” he said.

But board member John Stewart questioned whether the Bar should be involved, although he added he personally supported the petition.

“I believe this board needs to be cautious on making endorsements of petitions that are not in our province and that may be divisive among our membership,” he said.

Board member Leslie Lott agreed, adding the matter is in litigation, which should raise further concerns about Bar involvement.

Board member Dennis Kainen, though, contended it was proper for the Bar to take a position because it involves the Supreme Court’s exclusive jurisdiction over the practice of law in Florida. He also said it’s appropriate because Florida has a high percentage of residents who were born in other countries.

Alpizar said the board should act because the court might well ask for the board’s input after D’Alemberte and Palmer file the petition.

The board approved the committee’s recommendation by voice vote, with several dissents.

D’Alemberte and Palmer were at the meeting but did not speak other than offering to answer questions. They did make an extensive presentation the previous day to the Rules Committee.

Afterwards, D’Alemberte said he was satisfied with the board’s action. He particularly noted Hickey’s comment about documented immigrants being admitted and said that is now Godinez-Samperio’s status.

“I’ve found other instances where the Board of Bar Examiners admitted someone in a position very much like José’s,” he said.

He also spelled out why the federal statute cited by the Justice Department in its brief, 8 U.S.C. §1621, shouldn’t be considered.

“I don’t think the federal government has any business telling the states who they can license. And there are a series of cases that say the federal government may not commandeer states to carry out federal policy,” D’Alemberte said.

“My second constitutional objection to that statute is the federal government has no business telling the state it must discriminate against aliens. Aliens get the protection of the equal protection clause.”

There’s also an opt-out provision in the federal law for states, and indeed the Florida Legislature has passed a law specifically allowing noncitizens to be licensed in professions regulated by the Department of Health, the Department of Financial Services, and the Department of Business and Professional Regulation, he noted.

The catch, D’Alemberte said, is “in Florida, the Legislature cannot adopt a law opting out for law admissions because the Supreme Court has exclusive jurisdiction.”

Under Bar rules, D’Alemberte and Palmer were required to submit the petition to the Board of Governors prior to filing it with the Supreme Court.

Those rules allow members to propose Bar rule amendments if 50 members sign the petition.

As of Bar News deadline, 110 lawyers had signed this petition.

[Revised: 03-22-2017]