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Disbarment should be forever, and felons need not apply

Senior Editor Regular News

Disbarment should be forever, and felons need not apply

Character and Fitness Commission recommends changes

Senior Editor

Judge Schwartz Even if civil rights have been restored, convicted felons should not have the privilege of practicing law in Florida, and there should be no second chances for disbarred lawyers.

Those were the most significant changes recommended by the Florida Board of Bar Examiners Character and Fitness Commission detailed in its recently completed final report after eight months of studying admissions standards, the first review in 15 years.

“We just felt it was inappropriate to have convicted felons barred from being on the Game and Fresh Water Fish Commission and being teachers and masseurs, and a whole slew of what would seem to be non-responsible positions, and not have it impossible to be a felon for a lawyer,” said Third District Court of Appeal Senior Judge Alan Schwartz, who chaired the 15-member commission.

The present Rule 2-13.3 says a person who has been convicted of a felony is not eligible to apply until the person’s civil rights have been restored.

“Having ones civil rights restored is almost an automatic thing. That doesn’t mean a great deal. Our change eliminates that. A conviction of felony does disqualify from being a member of The Florida Bar,” Judge Schwartz said.

Florida Supreme Court Justice Fred Lewis, who appointed the commission on June 17, 2008, said: “Many members of the commission were shocked that a felon, after serving time and having their civil rights restored, could be admitted to the Bar.

“When people ask, ‘How is it you can be a lawyer and a judge as a convicted felon, but I can’t teach school? Or you can’t be a police officer.’ How does one answer that? That police officer is going to come into my courtroom, if I am a judge, and he couldn’t be that officer if he had a felony,” Lewis said.

Before becoming involved in Board of Bar Examiners’ issues, Justice Lewis said, “I was not aware that you could be convicted of a felony and get into the Bar. I had one traffic ticket, and I was concerned that would keep me out of the Bar.”

Asked how many lawyers in Florida are felons, Justice Lewis answered: “I have no way of knowing.”

As for the recommendation that disbarment becomes permanent — a pending petition before the court from the FBBE — Judge Schwartz said: “It’s really the same kind of consideration, which gave rise to the felon decision. We thought it unseemly to have formally disbarred lawyers back in the practice of law and sometimes embarrassing the Bar by committing further wrongs. If you are disbarred, you should be disbarred. But that, of course, means that since it is permanent, or would be permanent, it should be reserved for extreme cases.”

Because disbarment would be permanent, the commission also recommends that Bar discipline guidelines be revised to allow for suspension from the practice for up to five years (currently three years) and amend the rules to require attorneys who have been suspended in Florida for three years or more to reapply for Bar admission.

The commission sent a warning that better enforcement is also needed in the area of conditional admissions involving lawyers with alcohol and drug addictions and mental health issues. Those conditionally admitted must follow certain conditions, such as urine testing for drugs and mental health counseling.

“What will happen is somebody will be under a conditional admission and they’ll go for a year and not comply and nobody does anything. Then, all of a sudden, they harm somebody, and you look back into it and see, oh, they haven’t been filing their mental health report. Well, they haven’t been going to see their mental health counselor,” Lewis said.

While there are not a lot of lawyers conditionally admitted, Lewis noted, “The grievance rate is three times higher for people in that category.”

Since its inception in 1986, more than 580 attorneys have been conditionally admitted to the practice of law in Florida, according to the report. The commission reviewed confidential information regarding those conditionally admitted between July 1, 2005, and June 30, 2008. During the three-year period, 21 lawyers received discipline from the Bar ranging from admonishment to permanent disbarment. Of the 21 receiving discipline, six were disciplined twice.

“There was a discussion: Should we even have conditional admissions? Also, it’s secret; it’s confidential. So the public could be dealing with a lawyer with problems and not know it. But if lawyers don’t get help, that’s even more risky. It’s a tough issue,” Lewis said.

In the end, the commission voted to retain conditional admissions, including confidential orders by the Supreme Court, but said there should be zero tolerance if lawyers don’t follow their conditions.

Monitoring should be strictly enforced by the Bar and Florida Lawyers Assistance, Inc., and if these agencies are unable to achieve the policy of strict enforcement, the Supreme Court should transfer the monitoring function to the Board of Bar Examiners, the group recommended.

Asked if the commission was unhappy with the level of current enforcement, Judge Schwartz responded: “I’m glad we made it clear. There was some talk about recommending that the program be administered by the Board of Bar Examiners. There is some dissatisfaction — missing drug tests and things of that kind. There was the thought that there is some problem about the people in the program who are supposed to be monitoring it are becoming advocates rather than enforcers. We thought it should be tightened up, and it will be tightened up.”

Judge Schwartz said the role of the enforcer is “somewhere in between” a counselor and a probation officer.

“Obviously, they have to establish a rapport with the person with difficulties. On the other hand, they have to see to it that the requirements of conditional admission are in fact followed.”

Judge Schwartz said the commission was “universally impressed with the work of the Board of Bar Examiners and staff. The first part of the report says that we have no further recommendations as to the process for interviewing, screening, and investigating the potential admittees to the Bar. We really think the Board of Bar Examiners, the staff, and the executive director are doing a fine job. They should be commended.”

Justice Lewis commended the work of the commission and said the report and recommendations are now in the hands of the Board of Bar Examiners, which has an October 1 deadline to report back to the court.

“If anything comes out of it, then the court will do whatever the court would do. It will require changes in rules,” Lewis said. “Our court may even send it to additional committees. I don’t know. This is just the beginning.”

The following are among the commission’s other recommendations:

• Consider expanding its current review of online personal Web sites — such as Facebook and MySpace — and consider whether a question should be added to the bar application requiring that all such sites be listed and access be granted to the bar examiners.

• Supports the Supreme Court Commission on Professionalism’s current focus on professionalism in law schools and newly admitted attorneys and recommends that the Bar, judiciary, FBBE, and law schools work with the commission to support its goals.

• Supports FBBE’s petition for changes to Rules 2-13.1 and 2-13.2, which would require readmission to their home state by attorneys who have been suspended or disbarred in another jurisdiction.

The members of the commission were: Chair Alan Schwartz, senior judge, Third District Court of Appeal, Miami; Vice Chair George LeMieux, Tallahassee; Past Florida Bar President Francisco Angones, Miami; John Anthony Boggs, Tallahassee; 19th Circuit Judge Cynthia Cox, Vero Beach; Loretta Fabricant, Miami; Richard Fulton, Orlando; Randall Hanna, Tallahassee; Past Bar President Benjamin Hill III, Tampa; U.S. Southern District Judge Paul Huck, Miami; Yvonne Loggins-Coleman, Orlando; Senior Second DCA Judge E.J. Salcines, Tampa; George Schultz, Jr., Jacksonville; First Circuit Chief Judge Kim Skievaski, Pensacola; and Florida Bar President Jay White, West Palm Beach.

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