The Florida Board of Bar Examiners: The Use of and Rehabilitation at Formal Hearings
The scenario is this: You have graduated from college and have finished two years of law school. You worked to earn good grades with the expectation that you will graduate and become a member of The Florida Bar. You will be taking the bar examination in a year and are reviewing the bar application now.1
As you study the lengthy application, your anxiety level soars for you are asked to reveal that you have misdemeanor convictions for burglary and theft, that you are in arrears on several credit cards and loans, and that you have numerous traffic violations, and your driver license has been suspended.
You must advise the board of your mistakes and be absolutely candid2 in the explanation. A lack of truth and candor during the application process will land you in scalding water in the investigative and formal hearing process and possibly put you in another line of work.3
Having disclosed these facts, you may expect the board to invite you to an investigative hearing.4 You are entitled to be represented by counsel or you may go alone. If money is a problem, and it usually is, at least consult with an attorney who has handled these cases. The investigative hearing is a serious matter. Treat it as such. It bears repeating: A lack of candor during the bar application process, including the investigative hearing, could lead to your not being recommended for admission.
After the investigative hearing, the board will make one of the following determinations:
(a) that [you] have] established [your] qualifications as to character and fitness;
(b) that a Consent Agreement be entered into with [you] in lieu of the filing of Specifications pertaining to drug, alcohol or psychological problems. In a Consent Agreement, the Board shall be authorized to recommend to the Court the admission of the applicant who has agreed to abide by specified terms and conditions upon admission to The Florida Bar;
(c) that further investigation into [your] character and fitness is warranted;
(d) that Specifications be filed charging [you] with matters which if proven would preclude a favorable finding by the Board.
Fla. Bar Admiss. R. 3-22.5.
Based on the results of the investigative hearing, the board decides to file specifications (the charges) and you desire to contest them.5 You must answer them under oath. If you do not answer, the specifications are deemed admitted. Fla. Bar Admiss. R. 3-23, 3-23.1. Barring reaching a consent agreement as provided in Rule 3-22.5(b), you will proceed to a formal hearing. See Fla. Bar Admiss. R. 3-23.2 for a discussion of the formal hearing process, including but not limited to the notion that the “technical rules of evidence” do not apply. Witnesses can be subpoenaed by you and the board’s counsel. Pursuant to its procedures, the board will give you a copy of any exculpatory material and statements given to the board by witnesses who will testify live at the formal hearing. You may also obtain copies of the board exhibits to be offered at the formal hearing and copies of any documents you furnished the board during the application process, and copies of documents third parties (with their consent) furnished the board. However, except as noted here and in the admission rules, you are not entitled to a copy of the board’s investigative file. See generally Florida Board of Bar Examiners re: Interpretation of Article I, Section 14d of The Rules of the Supreme Court Relating to Admissions to the Bar, 581 So. 2d 895 (Fla. 1991); Fla. Bar Admiss. R. 1-60-1-64 regarding the scope of confidentiality of the application process.
Your formal hearing will be conducted before a quorum of the board which shall consist of not less than five members of the board and will not include any member who participated in the investigative hearing. This provision may be waived with your consent. Fla. Bar Admiss. R. 3-23.2.
During the formal hearing, as a matter of practice, the board’s counsel goes first and places into evidence6 documentation which supports the specifications. Board counsel may call live witnesses. You may cross-examine. Then it is your turn. You can offer documentary evidence and call live witnesses. However, make no mistake, you are the focus of the formal hearing. The board must prove its specifications; you do not have to disprove them. Coleman v. Watts, 81 So. 2d 650, 655 (Fla. 1955). However, you have the burden to prove that you have good moral character and the requisite fitness to practice law in Florida.7
The board, and necessarily the Florida Supreme Court, requires you to demonstrate present good moral character. Fla. Bar Admiss. R. 2-12. The court has adopted a rule to assist the board in making this determination:
3-12 Determination of Present Character. The Board shall determine whether the applicant or registrant has provided satisfactory evidence of good moral character. In addition to other factors in making this determination, the following factors should be considered in assigning weight and significance to prior conduct:
(a) age at the time of the conduct;
(b) recency of the conduct;
(c) reliability of the information concerning the conduct;
(d) seriousness of the conduct;
(e) factors underlying the conduct;
(f) cumulative effect of the conduct or information;
(g) evidence of rehabilitation;
(h) positive social contributions since the conduct;
(i) candor in the admissions process;
(j) materiality of any omissions or misrepresentations.
Fla. Bar Admiss. R. 3-12.
As you are having a problem with your prior misconduct, you should consider raising rehabilitation in your answer to the specifications and proving rehabilitation by clear and convincing evidence. The board considers several factors including unimpeachable character and moral standing in the community, good reputation for professional ability, where applicable; lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative, or other proceeding; restitution of funds or property, where applicable; and “positive action” such as a person’s occupation, religion, or community or civic service. The rehabilitation rule is clear: “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.” See Fla. Bar Admiss. R. 3-13(a)-(g), for additional criteria.9
Prior misconduct does not bar forever an applicant who has demonstrated good moral character. See, e.g., Florida Board of Bar Examiners re P.T.R., 662 So. 2d 334 (Fla. 1995); Florida Board of Bar Examiners re M.C.A., 659 So. 2d 34 (Fla. 1995); Florida Board of Bar Examiners re L.M.S., 647 So. 2d 838 (Fla. 1994); Florida Bar Board Examiners re Kwasnick, 508 So. 2d 338 (Fla. 1987); Application of V.M.F. for Admission to The Florida Bar, 491 So. 2d 1104 (Fla. 1986); In re Petition of Diez-Arguelles, 401 So. 2d 1347 (Fla. 1981). It just may take some time and convincing.10
The court has stated the test to be used to determine whether a person is of good moral character:
We must now determine two issues. First, are the facts in this case such that a reasonable man would have substantial doubts about the petitioner’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation? Second, is the conduct involved in this case rationally connected to the petitioner’s fitness to practice law?
Florida Bar Board Examiners re G.W.L., 364 So. 2d 454, 459 (Fla. 1978).
For example, in V.M.F., 491 So. 2d 1104, the applicant, upon advice of his attorney/father, did not disclose two drug arrests or the circumstances on his Florida Bar application.V.M.F. also lied at the investigative hearing. However, the court felt that “the delay in admission of over one and one-half years [was] an adequate price to pay for his reluctance to reveal every aspect of” his arrest. The court noted that if V.M.F. “had willingly revealed all the circumstances surrounding the Michigan arrests there is no doubt that the Board should have recommended his admission. See Petition of Diez-Arguelles, 401 So. 2d 1347 (Fla. 1981).” V.M.F., 491 So. 2d at 1107.
In Florida Board of Bar Examiners re J.A.S., 658 So. 2d 515 (Fla. 1995), the court admitted J.A.S. conditioned on his continued participation in the Florida Lawyers Assistance program.11 His problems with the legal system appeared to stem from his addiction problem. Nevertheless, J.A.S. was admitted notwithstanding a 1976 conviction for disorderly conduct, a 1980 arrest for simple assault that was subsequently dismissed, a 1983 conviction for resisting arrest, and a conviction for loitering with the intent to use a controlled substance (heroin). He was also dismissed from the police force based upon the heroin conviction. Id. at 515. J.A.S. also exhibited financial irresponsibility by defaulting on a student loan, which he subsequently repaid, and gave responses to the board and others that were false, misleading, or lacking in candor. Id. at 515-16. The court concluded that none of the incidents were recent, that J.A.S. sought and received professional help, and that J.A.S. had proven rehabilitation. Id.
J.A.S. was active in Narcotics Anonymous and served as a helpline volunteer, was a volunteer member in the guardian ad litem program, volunteered as a carpenter after Hurricane Andrew struck Miami and volunteered with the Dade County Bar Association, and “replaced his former anger with acceptance and now tries to do things for others.” Justice Harding with three justices concurring, found that J.A.S. “presented the same type of overwhelming evidence of rehabilitation that th[e] Court found dispositive in D.M.J.,” notwithstanding recognizing that the court is “required to and [does] give the Board’s findings great weight.” Id. at 517.12
In Florida Bar Board Examiners re D.M.J., 586 So. 2d 1049 (Fla. 1991), the board found after the investigative and formal hearings, that five specifications had been proven and the applicant knowingly participated in the criminal conspiracy to import cocaine; gave false testimony at the investigative hearing as to his knowledge of the importation scheme; failed to disclose on an employment application that he was dismissed from the University of Mississippi for scholastic reasons and falsely stated his major at another university; falsely stated on his law school application the reasons he was dismissed from the University of Mississippi and failed to disclose he attended East Carolina University; and displayed financial irresponsibility by failing to satisfy a judgment against him in 1981 until 1986. The board concluded that specifications 3, 4, and 5 were not disqualifying in and of themselves, but that specification 1 “was disqualifying in and of itself or in conjunction with the remaining specifications.” Id. at 1050 n.1. Despite upholding “[t]he Board’s determination that [D.M.J.] knowingly participated in the drug conspiracy,” the court concluded D.M.J. provided sufficient evidence of rehabilitation and ordered his admission. Id. at 1050-51.
D.M.J. presented numerous character witnesses, whose testimony was “highly favorable and uncontroverted.” The favorable recommendations included the judge for whom he clerked, two Florida attorneys who knew him for many years, and an attorney for whom he previously clerked. Id. at 1050. Two former law school professors submitted affidavits attesting to his “outstanding legal ability, honesty, generosity, and integrity.” Witnesses also corroborated13 D.M.J.’s charitable work “over the past several years for the Civil Air Patrol and the Kiwanis Club.” Id. at 1051. The court further noted that the offense in question occurred more than 12 years ago and there was no indication of conduct which would warrant disqualification since that time. The court concluded that D.M.J. “demonstrated that he currently14 me[t] the standards of conduct and fitness. . . . ” Id. (emphasis added).15
In L.M.S., the court ordered admission notwithstanding the board’s negative recommendation. L.M.S., 647 So. 2d at 839. During L.M.S.’s final semester (fall of 1991) of law school, she was enrolled in a supervised research and writing course that required completion of a paper. She originally planned to sit for the General Bar Examination in February 1992, but postponed that sitting because of financial considerations. She did not complete her paper until February 1992 and had not received a grade on the paper when she sat for the general bar examination in July 1992. Her grades were impounded because she could not show she had completed her graduation requirements when she took the test.
“L.M.S. admits that she made an error in judgment in sitting for the July 1992 examination. She maintained that she honestly believed she was eligible to take the exam even though she had not received a grade for her paper and she had received two letters from her law school advising her that she might be ineligible to sit for the Bar exam because she had not completed her graduation requirements.” Id. (emphasis added).
Specifications16 were filed and the board found two specifications were proven, but not disqualifying. It found that five specifications were disqualifying because they demonstrated her lack of honesty, truthfulness, and candor. The board also found L.M.S.’s testimony was “unreasonable and unworthy of belief.” Id.
The board identified numerous problems L.M.S. had with candor before the board. They all emanated, however, from one basic issue: whether she was candid when she advised the board that she had completed the requirements for graduation when, in fact, she had not.
The court did not condone L.M.S.’s statements that were false, misleading, or lacking in candor, but found she should be admitted, assuming she passed the bar examination. She acknowledged her mistakes; her employers considered her dependable and hardworking; and she had “not engaged in any behavior similar to that which led to her taking the July 1992 exam.” Id. at 839. “[I]n light of L.M.S.’s overall record, it [was] not clear [to the Court] what further rehabilitation she could show.” Id.
In P.T.R., the applicant had been disbarred17 in Florida for stealing from a client and misleading the court. He was readmitted. The court discusses each of the rule rehabilitation criteria. The court felt that P.T.R.’s transgression was a single, isolated episode and that he proved rehabilitation by performing volunteer work for his homeowner’s association, donating blood (he had a rare type), service as treasurer, coach, or umpire for his son’s Little League team, traveling with his daughter to swim meets when she was younger,18 and teaching martial arts to children for free.
In M.C.A., the applicant was accused of cheating on a law school exam and sanctioned by the law school pursuant to a settlement agreement. She advised the board of the incident, but protested her innocence both before the law school and before the board. The board recommended denial of admission because she maintained she did not cheat on the exam. The court rejected this “Catch-22″ position. The court also concluded that she proved her “present fitness” to practice law. The incident occurred almost five years ago; she complied with the conditions of the settlement agreement entered into with the law school; she applied for and was readmitted to the law school; favorable letters of recommendation were submitted in her behalf; and “[s]everal of her professors wrote that the cheating incident was totally out of character for [her] and that they did not believe that she had in fact cheated.” Id. at 35. In light of her overall record, the court granted admission. The case is not so much one of rehabilitation as it is a case of successfully overcoming one isolated, yet serious, incident.
In contrast, in Florida Board of Bar Examiners re J.J.J., 682 So. 2d 544 (Fla. 1996), a lawyer was suspended for three years in his home state which followed money laundering/tax convictions. He was reinstated and applied for admission in Florida. The court denied admission finding that his sporadic participation in a local service organization, active participation in local bar association, and pro bono legal service was not enough to establish rehabilitation in light of the serious misconduct.
W.H.V.D. was denied admission twice. Florida Board of Bar Examiners re W.H.V.D., 653 So. 2d 386 (Fla. 1995). He was initially denied because of his conduct while he served as a trustee for a church and school stewardship fund during the mid-1970s. This conduct included making unauthorized loans while he was a trustee and engaging in unethical behavior such as conflict of interest and breach of fiduciary duty. He also demonstrated a lack of candor in dealing with the board. He reapplied and was required to prove rehabilitation.19 He failed to do so.
The board found and the court concluded that W.H.V.D. did not “fully appreciate either the seriousness of his past behavior or the consequences of his present behavior.” Id. at 388. Also, he did not take the “extra steps to show rehabilitation” since being denied admission the first time. Opening his house to migrants on two occasions and doing well at work were insufficient. The board noted in its report on rehabilitation that they would view favorably activities such as counseling or teaching young law students and young lawyers on ethical considerations. Id. at 388 n.1. The court was confident that he could demonstrate positive action showing rehabilitation in other ways as well. Id.
As a general rule, if the board does not recommend your admission after the formal hearing and your case is not ripe for a conditional admission, your ability to reapply for admission will be withheld for a specified period not to exceed two years. Fla. Bar Admiss. R. 3-23.6(c).20 Following a formal hearing, and sometimes following an investigative hearing, the board has recommended that admission be withheld for one year where rehabilitation was shown but insufficient.21 Also, the court has authorized applicants to reapply for admission within one year, rather than wait the ususal two-year period. See, e.g, Florida Board of Bar Examiners re J.E.G.R., 720 So. 2d 244 (Fla. 1998); Florida Board of Bar Examiners re N.W.R., 674 So. 2d 727 (Fla. 1996); Florida Board of Bar Examiners re F.O.L., 646 So. 2d 185 (Fla. 1994); Florida Board of Bar Examiners re B.H.A., 626 So. 2d 683 (Fla. 1993).
If you face a formal hearing and have committed one or more acts of misconduct, rehabilitation may be at issue, but you have to assert and prove it. If you have to reapply for admission after a negative recommendation, including being unsuccessful in seeking review by the court, you must prove rehabilitation the next time through the system.22 In order to have any reasonable expectation of gaining admission, you must plan ahead and develop a plan and begin your rehabilitation now. q
1 See Richard C. McFarlain, Character & Fitness Process Before The Florida Board of Bar Examiners, 63 Fla.B.J. 29 (January 1989) for a good discussion of the entire bar application process. Also, the board has submitted several proposed changes to the Rules Relating to Admission to the Bar which are now under consideration by the Supreme Court. See Fla.B.News, January 15, 2000, Notice at 12-15.
2 Truth means telling the board of your problems. Candor requires you to accurately tell the board what happened.
3 The Court has said: “While there is no litmus test by which to determine whether an applicant for admission to the Bar possesses good moral character, we have said that no moral character qualification for Bar membership is more important than truthfulness and candor….” Florida Board of Bar Examiners re L.M.S., 647 So. 2d 838, 839 (Fla. 1994)(citations omitted).
4 The board considers several criteria when determining whether to pursue a further inquiry. See Fla. Bar Admiss. R., 3-11 which include unlawful conduct, academic misconduct, financial irresponsibility, making any false or misleading statement or omission of relevant information, including any false or misleading statement or omission on the bar application, or any amendment, or in any testimony or sworn statement submitted to the board.
5 You have the option of withdrawing your application without prejudice and the board shall consider acceptance of the request but may continue its investigative and adjudicative functions to conclusion. Fla. Bar Admiss. R., 3-15. Or, you can withdraw your application with prejudice and the board is required to accept the withdrawal. However, if you do, you are “permanently barred from filing a subsequent application for admission to The Florida Bar.” Fla. Bar Admiss. R. 3-16.
6 At the very least, board counsel will place the following documents into evidence: the specifications, your answer, your bar application, as amended, and the investigative hearing transcript. Other documents may be offered in support of the specifications.
7 Once a prima facie showing has been made, “it is incumbent upon those making objections [the board and its counsel] to offer evidence to support the same and to overcome the prima facie showing made by [you]. It is not for [you] to prove the falsity of the charges made against [you].” Id.
8 The board’s formal hearing does not preclude the Court from reviewing the factual underpinnings of the Board’s recommendation, based on an independent review of the record developed at the hearings. Florida Bar Board Examiners re L.K.D., 397 So. 2d 673, 675 (Fla. 1981).
9 You may ask which criterion is the most important. It depends on the severity of your problem before the board. “The nature and seriousness of the offense are to be weighed against the evidence of rehabilitation.” Florida Board of Bar Examiners re J.A.S., 658 So. 2d 515, 517 (Fla. 1995), quoting Florida Board of Bar Examiners re D.M.J., 586 So. 2d 1049, 1050 (Fla. 1991)(Harding, J., concurring)). The more severe the misconduct, e.g., disbarment, the more rehabilitation must be proven. However, as a general rule, assuming the other criteria are satisfied if at issue, the “positive action” requirement seems to be paramount.
10 The court has denied admission in cases where the proven specifications involve extensive misconduct. See, e.g., Florida Board of Bar Examiners re G.J.G., 709 So. 2d 1377 (Fla. 1998); Florida Board of Bar Examiners re R.L.B., 660 So. 2d 1049 (Fla. 1995); Florida Board of Bar re M.R.I., 623 So. 2d 1178 (Fla. 1993); Florida Board of Bar Examiners re C.W.G., 617 So. 2d 303 (Fla. 1993); Florida Board of Bar Examiners re J.H.K., 581 So. 2d 37 (Fla. 1991); Florida Board of Bar Examiners re R.D.I., 581 So. 2d 27 (Fla. 1991). However, the court does not publish all of its decisions. Many cases are decided without comment by a denial of the applicant’s petition for review filed after the board’s negative recommendation.
11 The FLA program assists lawyers who suffer from impairment related to chemical dependency or psychological problems which affect their professional performance or practice of law. See R. Regulating Fla. Bar Bylaw 2-9.11; Fla. Stds. Imposing Sancs. (Drug Cases)10.0. When appropriate, you should consider counseling for these and other related problems.
12 However, the board’s formal hearing does not preclude the court from reviewing the factual underpinnings of the board’s recommendation, based on an independent review of the record developed at the hearings. Florida Board of Bar Examiners re L.K.D., 397 So. 2d 673, 675 (Fla. 1981).
13 Live witnesses (preferable) or evidence by affidavits should corroborate your efforts at rehabilitation. Further, to be of any help, character witnesses and affiants should be intimately familiar with your background and your problem. You can expect the live witnesses to be questioned in detail and asked among other things: Have you read the specifications and the answer? Which specification gives you the most concern? When did the applicant disclose his problem to you?
14 Compare with Fla. Bar Admiss. R. 3-12,“Determination of Present Character” (emphasis added).
15 The decisions rendered in V.M.F. and D.M.J. are unusual perhaps because of the time which elapsed between the “substantive offense” and consideration by the board and the court (notwithstanding candor related issues arising during the bar application process) and, at least in D.M.J.’s case, significant rehabilitation and favorable character witnesses. V.M.F. is cited in L.M.S. and the court characterized its holding in V.M.F. as follows: “granting admission to applicant who was not completely candid in bar application about a drug arrest where applicant had no other transgressions and led an exemplary life in the intervening ten years.” L.M.S., 647 So. 2d at 839.
16 The specifications concerned, in part, L.M.S.’s application(s) for admission to the bar examination(s) and statements made to the board during the application process, including statements made during her investigative hearing. 647 So. 2d at 839 nn. 2 and 3.
17 All applicants who have been disbarred from the practice of law or have resigned pending disciplinary proceedings are required to appear for a formal hearing which is open to the public. Fla. Bar Admiss. R. 3-22.7. See also Fla. Bar Admiss. R. 2-13, regarding eligibility requirements.
18 The court rejected this item as “positive action.” 662 So. 2d at 337 n. 2. However, the court did not read the rehabilitation rule as narrowly as the board “to preclude otherwise acceptable positive action simply because there is a benefit to the applicant.” Id. at 337-38. The court encourages “positive actions such as assisting the homeless, sick, or abused, or working as a guardian ad litem.” Id. at 338. The court notes that the “positive action” requirement is “broad in scope.”
19 The court stated that an applicant, like a person seeking reinstatement to the Bar, who has been denied admission to the Bar “bears the [same] heavy burden of establishing rehabilitation.” W.H.V.D., 653 So. 2d at 388, quoting Florida Bar v. Janssen, 643 So. 2d 1065, 1066 (Fla. 1994). See also Florida Board of Bar Examiners re L.H.H., 660 So. 2d 1046 (Fla. 1995) (insufficient rehabilitation shown by disbarred lawyer); Florida Board of Bar Examiners re J.C.B, 655 So. 2d 79 (Fla. 1995)(same);but see Florida Board of Bar Examiners re P.T.R., 662 So. 2d 334 (Fla. 1995)(rehabilitation shown by formerly disbarred attorney).
20 In cases involving material omissions or misrepresentations in the application process, the Board may recommend you be disqualified for a period greater than two years up to five. Fla. Bar Admiss. R. 3-23.6. The usual two-year waiting period is significant. You must wait two years to reapply and then, with some modifications, the application review process, including background investigation, begins anew. You will be required to reappear at a formal hearing and prove rehabilitation by clear and convincing evidence. Fla. Bar Admiss. R. 2-14 “Petitions for Rehabilitation.”
21 In some cases, the board will recommend admission at the end of the deferral period (one or two years) if the applicant is error free during the deferral period, and if the applicant demonstrates additional rehabilitation to the satisfaction of the board. In essence, the board is saying that if you are a good person for a year, for example, and comply (and offer proof) with the rehabilitation rules, i.e., perform community service, etc., you stand a good chance of being admitted without any additional hearings before the board.
22 See Fla. Bar Admiss. R. 2-14.
Charles A. Stampelos has been a member of The Florida Bar since 1977 and is a shareholder in the Tallahassee law firm of McFarlain, Wiley, Cassedy & Jones, P.A. He received his law degree from the Marshall-Wythe School of Law at the College of William and Mary. Mr. Stampelos is chair of the Florida Commission on Ethics.
This column is submitted on behalf of the Administrative Law Section, Dan R. Stengle, chair, and Robert C. Downie II, editor.