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May 1, 2017
Court declines to amend certified legal interns rule

The Supreme Court rejected rule amendments supported by the Bar to speed up the process of law students becoming certified legal interns.

The proposal — opposed by the Florida Board of Bar Examiners — would have allowed law students who want to be certified legal interns to undergo a Level 2 criminal background check instead of a full Board of Bar Examiners character and fitness review. The students would still have had to apply for the full review as a CLI registrant, but would have been able to begin their internships sooner, as long as other requirements of the certified legal internship rule were met.

Quote“Although we are concerned that the current rule may have contributed to the reduced participation in certified legal intern programs, and we agree that this reduction in participation is detrimental to law students, law schools, and the programs themselves, we cannot place those interests, no matter how important, above our duty to ensure that the participating students and graduates, who actually provide legal representation under the supervision of members of The Florida Bar, possess the requisite character and fitness for eventual admission to the practice of law, either in this state or another state of their choice,” the court said April 13 in Case No. SC16-1963.

The Board of Governors supported the rule change on the recommendation of the Young Lawyers Division. The FBBE, however, argued that students should still have the full character and fitness review, mandated since 2007, before becoming certified legal interns.

The issue came to the YLD’s attention from law deans who said students were being discouraged from doing clinical work because of the length of time needed to clear the full FBBE character and fitness review.

Under the failed proposal, the FBBE would conduct the investigation “as soon as possible after the law student submits the registration and appropriate fee” and “issue an initial letter of clearance to the law student if the results of the Level 2 background investigation did not demonstrate a lack of honesty, trustworthiness, diligence, or reliability.” The Bar contended this process would ensure that the public is protected by confirming that the student had a clear criminal history before being certified in one to three weeks, rather than six to nine months. The process requires early application for Bar admission.

The FBBE, however, disputed that under the current rule, clearance of individuals takes six to nine months; rather, the examiners asserted that from October 2010 through September 2015, the average time ranged from approximately four to five and a half months. The FBBE also maintained it is not possible to determine requisite character and fitness for eventual Bar admission with just a Level 2 background check, especially when criminal conduct is only one of 14 areas of potentially disqualifying conduct the FBBE is required to consider under Rule of the Supreme Court Relating to Admissions to the Bar 3-12. The FBBE also contended that the standard to be met under the rule — that the examiners would issue a letter of initial clearance “if the results of the Level 2 background investigation do not demonstrate a lack of honesty, trustworthiness, diligence, or reliability”— is unclear. The FBBE also said the amendments would have the unintended consequence of more law students delaying filing the student registration because there would be no requirement to file an early application to obtain certification as a legal intern.

In its opinion, the court encouraged law school students to continue to participate in certified legal intern programs and to register early with the Board of Bar Examiners in order to receive timely clearance under the current rules.

“On balance, we conclude that the Bar’s proposal in this case is not an acceptable compromise between the position of the Florida Board of Bar Examiners — the entity in which we have reposed our trust to carry out the responsibility of screening the character and fitness of certified legal intern registrants — and the positions of the law schools and programs who rely on the participation of certified legal interns to help serve their clients,” the court said.

Chief Justice Jorge Labarga, and Justices Barbara Pariente, Peggy Quince, Ricky Polston, and Alan Lawson concurred in the per curiam opinion. Justice Fred Lewis concurred in result and Justice Charles Canady concurred in result with an opinion.

Justice Canady suggested referring the matter back to the Bar for the development of a proposal that would shift responsibility for providing letters of clearance for certified legal interns from the Board of Bar Examiners to the Bar itself.

“I believe that the public interest can be adequately protected through the suggested Level 2 background investigation coupled with supervision of interns by members of The Florida Bar,” Canady said. “And I believe that this approach can most appropriately be implemented by the Bar.”

[Revised: 04-24-2018]