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Admission by motion gets chilly reception at Tampa open hearing

Senior Editor Regular News

Twenty-four speakers came to the microphone at the Bar’s September 18 public hearing on admission by motion with reciprocity for out-of-state lawyers and, when they finished speaking after almost two hours, the message was clear — they don’t like the idea.

Only two of the speakers at the hearing held during the Bar’s Fall Meeting in Tampa supported allowing attorneys licensed in other jurisdictions to become Florida Bar members without taking the Bar exam. One other spoke in favor of special consideration for attorney spouses of military members stationed in Florida. The remaining 22, with varying degrees of vehemence, spoke against the preliminary recommendation made by a Vision 2016 Bar Admissions Committee.

“I think one of the reasons so many lawyers were upset about this is this forum should have come before the Bar president was going around the state advocating for reciprocity, and before the [Vison 2016] committee spent two years studying it,” said Palm Beach Gardens attorney Lloyd Schwed. He added, “What is so hard about asking out-of-state lawyers before they are given the privilege of a Florida license to take a test about Florida law?”

(Bar President Ramón Abadin has said reciprocity should be considered as a way to possibly expand work opportunities for Florida lawyers as technology plays an increasing role in legal practice. He has advocated full and complete discussion of this idea and all recommendations coming from the Vision 2016 process.)

Michael Winer of Tampa, chair of the Bar’s Workers’ Compensation Section and outgoing president of Florida Workers Advocates which is comprised of 300 workers’ compensation attorneys, said both organizations overwhelmingly oppose admission by motion.

“We come to this not from the angle of wanting to protect our own interests. . . but more so from the interest of protecting the public as a whole. We understand that the goal of the Bar is not to protect the lawyers, it’s to protect the public. Reciprocity does not breed competence to help achieve that objective. What reciprocity does is allow lawyers from other states who are not specialists to come in and begin to invade our practices such that what we [will] have is lawyers who are jacks of all trade and masters of none coming into our state and working on cases,” Winer said.

“When an orthopedic surgeon does a knee scope, a knee scope he does in Florida is the same as a knee scope he does in another state. But a personal injury trial, as an example, in Florida is not the same as a personal injury trial in New York; it’s not the same as a personal injury trial in Georgia. There are fundamental differences when it comes to the practice of law that I think strongly dictate voting down this measure.”

And so it went. Speakers argued admission by motion would favor large multi-state firms over small and solo practitioners who make up the bulk of Bar membership, that the state’s 12 law schools already churn out more lawyers than the legal market can support, and that clients would be hurt by unprepared lawyers handling their legal matters.

Board of Governors member Jay Cohen, who serves as administrator of Vision 2016, moderated the meeting. Looking out at the nearly 100 people attending the hearing, he provided one of the light moments at the meeting, commenting, “This is on the very controversial issue of dressing for success.”

Bar President-elect Bill Schifino also attended the meeting and assured the speakers that “myself and all of the Board of Governors. . . have listened very, very carefully to what you have had to say on this subject.”

Cohen, who has come out against admission by motion, noted that the issue has been presented preliminarily by the Multijurisdictional Practice — State Focus Committee of the Vision 2016 Bar Admissions Subgroup. He emphasized that there was no formal action item before the board but added that following the public hearing the board would discuss admission by motion at its October 16 meeting in Atlantic Beach and a vote would be taken.

Cohen kept the hearing moving with little comment between speakers. He did note that several Board of Governors members besides Schifino were in attendance and added, in response to comments that admission by motion favors large firms, that he practices in a four-person trial firm.

He also echoed Schifino, saying, “The Florida Bar. . . through the Board of Governors is alive and well and is a deliberative process, and what everyone should take away from this is this [hearing] demonstrates that.”

Kissimmee attorney Charles Tiffany was one of the two admission by motion proponents, saying allowing admission by motion would enhance freedom for the profession and opposing it does not address the real problem which is fewer people who can afford lawyers.

“It’s not these people coming down from the North scaring everyone; it’s these fears running over the profession that something is wrong,” he said. “We have to accept the fact that law practice is not as lucrative as is used to be, and you’re not guaranteed a ticket to the upper-middle class when you get a law degree.”

Tiffany argued that allowing more legal “trade” though admission by motion would mean more trade for everyone, adding, “I’ve never tasted anything that didn’t taste better if you dumped on a little hot sauce of freedom.”

First year attorney Gabriel Munoz-Calene of New Port Richey was the only other speaker to favor admission by motion, but said it should not be imposed if the overwhelming majority of attorneys oppose it.

He said a lawyer’s ability to be a counselor and advisor was more important than being a walking statute book. He also said the recommendation from the Vision 2016 committee that only those who had been in practice for five of the past seven years would prevent inexperienced lawyers from flooding to the state.

“In ‘The American Scholar,’ Ralph Waldo Emerson warns against hyper specialization and complexity. Talking about the ideal American man, he says that if our society becomes too specialized then the attorney is nothing more than a statute book,” Munoz-Calene said.

But Tiffany and Munoz-Calene, who got polite applause, proved to be the distinct minority, and speakers opposed to admission by motion were rewarded with hearty applause and cheers. Speakers included:

  • Ted Starr of Pinellas Park who said the suggested requirement that those seeking admission by motion should have clean disciplinary records in other states where they are admitted would be meaningless unless those states had effective disciplinary programs. He noted that California bar officials (California does not have reciprocity) recently admitted that their grievance process is overwhelmed.
  • Jason Mulholland of Tampa argued that admission by motion would mainly benefit large multi-state firms that could become so big that they would be “too big to fail and too big to jail.” Several other lawyers agreed multi-state large firms would be the primary beneficiaries.
  • John Hamilton of Tampa said the lawyer population has been growing faster in Florida than virtually anywhere else in the country, adding, “I challenge the Bar and the committee to prove by data that there is a need for more lawyers in Florida to serve the needs of our citizens.”
  • Charles Morehead of Ft. Lauderdale said the existing pro hac vice rule is sufficient for out-of-state attorneys who need to represent clients in Florida, and noted the committee’s study found the pro hac vice system is working well. Morehead is president-elect of the Broward County Bar Association, the president elect of the American Board of Trial Advocates of Ft. Lauderdale, and a board member of the Broward Justice Association, and he said all three organizations passed resolutions opposing admission by motion. “It is in our view ill conceived and little more than an attempt to allow large firms to flood wherever they wish with lawyers. And the people of the state of Florida deserve more.”
  • Gerald Heckler, who has a sole firm in New York, said he has practiced in California, Illinois, Massachusetts, as well as New York and earlier this year passed the bar exam and joined The Florida Bar. “Having done it the way I did, I really appreciate my license in Florida much more than if I had been able to do it by motion and come down and hang my shingle on the wall,” he said. “If I, after practicing for 45 years and operating a busy sole practice, if I can study for the bar and come down and take a bar exam, there’s no reason other lawyers can’t do that.”
  • Matthew Posgay, president of the Jacksonville Justice Association, said the bar exam is necessary to show competence with Florida law. “How can we guarantee the citizens of the state of Florida that the attorney they hire who is going to make money doing work for them is actually doing the job right, unless they know the basic issues of Florida law?” he asked. “If passing a test to show you can do your job is too tough, then why does the Bar support and promote board certification? Does that mean we throw those tests away and anyone can call themselves an expert? That doesn’t make any sense.”

Karen Scanlan of Chicago brought up the issue of attorney spouses of military service members stationed in Florida. The MJP — State Focus Committee recommended that the Bar look into finding a way to help those attorney spouses practice.

“We are not asking for reciprocity,” Scanlan said. “What we are asking for is a temporary license while we are with our spouses on duty in Florida.. . . Thirteen other states have passed a rule in support of military families.”

At least two other speakers expressed support for Scanlan’s request and the MJP — State Focus Committee in its preliminary report said it is still studying that issue..

Some speakers voiced opposition to allowing nonlawyers to have an ownership stake in law firms, something that is allowed in other countries and has been looked at in other states.

No recommendation on that has been made to the Board of Governors and the issue falls under the jurisdiction of another Bar Admissions Subgroup panel, the Alternative Business Structures for Law Firms Committee, which has yet to make any recommendation on that matter.

Several speakers questioned a Bar poll taken in 2013 that was cited by the committee in making its admission by motion recommendation. That poll indicated a majority of Bar members supported admission by motion with reciprocity for other states allowing the same.

However, since the committee made its preliminary report, lawyers sending comments to the Bar have opposed reciprocity by a more than 6-1 margin, with more than 1,100 lawyers expressing opposition.

A cross section of voluntary bar associations as well as Bar sections and committees have also passed resolutions or sent letters in opposition.

The MJP — State Focus Committee pointed to a rapidly changing legal landscape and the ability for lawyers, even in small and solo firms, to represent clients’ interest across state lines in making its recommendation. It also noted that admission by motion, with or without reciprocity, is now allowed in 39 states and the District of Columbia.

The committee proposed several conditions for admission by motion applicants:

• Must have a J.D. or LL.B. degree from an accredited law school.

• Must be admitted in another jurisdiction which requires passing a bar exam as a condition of admission.

• Must have actively practiced for five of the previous seven years.

• Must not have failed the Florida bar exam within the previous five years.

• Must be in good standing in all of the jurisdictions where they are licensed.

• Must not have any pending grievance actions in any jurisdiction.

• Must pass the Florida Board of Bar Examiners’ character and fitness review.

In its report, the committee concluded: “In its final analysis. . . erecting barriers to cross-border practice [is] no longer practical in today’s mobile society and that increased competition [is] not a principled reason for continuing such barriers. The committee further determined that our own members need and deserve the ability to serve their clients in other states, or to move to other states without having to retake a bar examination if it benefits them personally or professionally.

“Further, it became apparent that rules that permit cross-border practice and mobility could be designed for maximum consumer protection and, under a well-designed approach, public protection would not suffer.”

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