By Gary Blankenship
Many, if not most, lawyers who are now disbarred would likely face suspensions ranging from more than three years up to five years, under a proposal made by a Supreme Court-appointed commission. But that recommendation wouldn’t necessarily mean more lawyers who are suspended instead of disbarred would eventually return to the practice of law.
Retired Third District Court of Appeal Judge Alan Schwartz, chair of the Florida Board of Bar Examiners Character and Fitness Commission, said lawyers suspended for longer than three years would have to go through all the hoops that disbarred lawyers now face when they want to return to the practice of law.
Those steps include reapplying through the FBBE, meeting tough standards to show rehabilitation, and retaking the bar exam. The recommendation on disbarment was one of several made by the commission (See story on page 1 of the April 15 News).
The FBBE is set to review the commission’s report this month.
Schwartz said although the commission, appointed last year by then Chief Justice Fred Lewis, was charged with looking at policies relating to Bar admissions, the group included the disbarment recommendation because it related to another proposal — that felons be permanently denied admission to the Bar. The report also noted that the FBBE has petitioned the court to change its rules to allow it to permanently deny an applicant Bar admission, something the court has done in opinions but which is not encapsulated in the rules.
“It is not a cataclysmic issue. It is an important issue as a matter of principle as well as public relations. It’s unseemly to have a [previously] disbarred lawyer practicing law,” Schwartz said of the recommendation.
Bar Board of Governors member Bill Kalish, who has also served on the FBBE, had a different view.
“To have somebody permanently barred is unnecessarily harsh, because the examiners board has the experience in the admissions process to deal with the concept of rehabilitation,” he said. “Hopefully not everybody in the world is necessarily incorrigible. There may be opportunities for people who show rehabilitation.”
Bar statistics tell an interesting story on the issue. From 1992 to 2008, 1,179 lawyers lost their licenses due to being disbarred or from some form of disciplinary resignation. During the same time, 28 — or a bit more than 2 percent — successfully applied and went through the readmission process. Another 19 applied and were rejected.
Of the 28 who were readmitted, none have had any subsequent disciplinary sanctions.
Because disbarment would be more serious, with no chance of readmission, Schwartz said the commission envisioned that disbarment would become a lesser used option.
“It [the report] says since we recommend that disbarment should be reserved for the most serious cases, in the less serious cases there should be a provision for a longer suspension,” he said. “We understood, and rightfully so, that the Bar and [grievance] referees will be reluctant or more reluctant to recommend disbarment, because disbarment under our scheme is even more serious and that’s the way it should be.”
Although there are no exact figures, most disbarments are for five years. The Supreme Court can specify a longer period in its final order. In the past five years, out of 377 license revocations, 54 were permanent disbarments or permanent resignations. There were no figures readily available on how many disbarments were for longer than five years, but not permanent, although such orders are relatively rare.
Also, permanent disbarment is sometimes imposed on someone already disbarred for a shorter period for either earlier disciplinary infractions or a rule violation while disbarred, such as continuing to practice law.
Schwartz said the commission’s view was that since most disbarments are for the minimum five-year period, those would become suspensions from more than three years to five years. He noted that currently lawyers suspended from 91 days to three years must show rehabilitation at a Bar hearing before they are readmitted, and may also have to retake parts of the bar exam.
The new extended suspension, Schwartz said, would be the equivalent of the current disbarment process as far as gaining readmission. Rather than a Bar hearing, the lawyer would have to reapply to the FBBE and undergo a character and fitness review and retake the bar exam.
The character and fitness review would include complying with the stiff requirements of Rule 3-13, Elements of Rehabilitation, of the Rules of the Supreme Court Relating to Admission to the Bar. Rule 3-13 requires the person seeking readmission to provide clear and convincing evidence of good character and rehabilitation and show that restitution, if applicable, has been made.
The rule also specifies that the applicant must demonstrate “positive action showing rehabilitation by occupation, religion, or community or civic service. Merely showing that an individual is now living as and doing those things he or she should have done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. The requirement of positive action is appropriate for applicants for admission to The Florida Bar because service to one’s community is an implied obligation of members of The Florida Bar.”
While the requirements of Rule 3-13 are high, “We think in instances of being suspended for more than three years, that should be required,” Schwartz said.
Kalish, who read the commission’s report, said he was concerned with the permanence of the disbarment recommendation. Combined with the recommendation that felons be prohibited from practicing, he said many people who can be rehabilitated would be precluded from regaining their legal licenses.
He noted that frequently substance abuse problems result in felony charges, yet there is an established history that those with addiction diseases can be rehabilitated. Similarly, vehicular homicide is a felony, yet it results from an accident which might not justify a permanent disbarment.
“I think what that is intended [in the current rule] is that the people who have to make a determination of whether someone who has to be admitted or not should hold out the possibility that someone can be rehabilitated,” Kalish said.
Role of FBBE
He noted that part of the FBBE’s function is to evaluate character and rehabilitation, not only for disbarred lawyers seeking readmission but for first-time applicants who have had legal run-ins or other problems and now seek to practice.
“I think the people who are in charge of the reviewing process are able to determine whether someone has rehabilitated themselves,” Kalish said. “To extend [permanent disbarment] to convicted felons, to forever foreclose someone just doesn’t seem fitting.”
The commission’s report has been sent to the FBBE. FBBE Chair Reginald Hicks said the board was to consider the report at a retreat scheduled to begin June 11 (after this News went to press). He declined to talk about the commission’s report, saying he thought it was appropriate for the full board to discuss it first. But, he added, others have not been reticent on giving him their views.
“People have been very forthright in giving me their opinion, both lawyers and judges,” Hicks said. “There really are some strong feelings, but until the board takes a position, I don’t want there to be a chilling effect.”
If disbarment did become permanent, Florida would join only five other states who, according to the report, deny readmission to a disbarred lawyer: New Jersey, Ohio, Oregon, Kentucky, and Indiana. The report noted that Florida is one of several states where permanent disbarment is an option.
Permanent revocation of a professional license is also not unknown in Florida.
Larry McPherson, executive director for the Florida Board of Medicine, said the board changed its policies in recent years and all license revocations are now considered permanent.
In cases where a physician seeks to give up a license, similar to the Bar’s disciplinary resignation, “The board typically accepts such an offer if it contains an agreement by the licensee never again to seek licensure in Florida as a physician,” McPherson said. “During the period of fiscal year ’05 though fiscal year ’08, there was only one licensee who was allowed to withdraw the relinquishment after it was accepted by the board and have her case go through the disciplinary process. She later received a penalty that allowed her to keep her license.”
For the fiscal year that ended June 30, the Board of Medicine reported 20 license revocations for doctors and 44 voluntary relinquishments. The board oversees more than 57,000 licensed doctors, including almost 41,000 in state and more than 12,000 out of state who hold Florida licenses.
Permanent revocation, however, is not automatic for all state-licensed professions. Alexis Lambert, with the Department of Business and Professional Regulation, spot checked two professions: architects and certified public accountants.
In both cases, those who lose their licenses are allowed to reapply. But it’s not a common action.
“In general, when a [licensing] board revokes a license, the final order will indicate if the person can petition for reinstatement and any time limits for that,” Lambert said. “If they do reapply, the board has to approve it. They don’t go through the normal application process.”
And that, she added, is a much stricter process than for first-time applicants.
Lambert said she didn’t know of anyone in either profession recently who had successfully been reinstated, and she said the long-time executive director of the accountancy board could not recall any instance of anyone even reapplying after losing an accountancy license.
She also noted, though, that revocation is fairly rare in both professions. For example, architects are included with interior design in counting licenses, and there are about 11,000 of those two professions in Florida. Lambert said in the past five years, 16 architects have lost their licenses.