Tag Archive for: florida bar admissions denial

SUPREME COURT DISCIPLINES 27 ATTORNEYS

Summary of orders issued Jan. 4 – Feb. 3, 2011 from The Florida Bar’s website:

The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined 27 attorneys, disbarring seven and suspending 15. Some attorneys received more than one form of discipline. Two attorneys were placed on probation; five attorneys were publicly reprimanded. Two attorneys were ordered to pay restitution.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

FLORIDA’S SUPREME COURT DISCIPLINES 20 ATTORNEYS

The following information was obtained on The Florida Bar’s website.

It was announced on Feb. 1, 2011, that The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined 20 attorneys, disbarring five and suspending 12. Some attorneys received more than one form of discipline. Two attorneys were placed on probation; three attorneys were publicly reprimanded. One attorney was ordered to pay restitution.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.

The court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission. 

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

SUMMARY OF UNLICENSED PRACTICE OF LAW CASES IN FLORIDA

 

In order to determine whether an activity constitutes the unlicensed practice of law, a two part analysis must be made.  First, it must be determined whether the activity is the practice of law.  The second question is whether the practice is authorized.  If an activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a nonlawyer.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).

The first question which must be addressed in order to determine whether a service or activity constitutes the unlicensed practice of law is to determine whether the activity constitutes the practice of law. In The Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963) the Court found that setting forth a broad definition of the practice of law was “nigh onto impossible” and instead developed the following test to determine whether an activity is the practice of law:

…if the giving of (the) advice and performance of (the) services affect

important rights of a person under the law, and if the reasonable protection

of the rights and property of those advised and served requires that the

persons giving such advice possess legal skill and a knowledge of the law

greater than that possessed by the average citizen, then the giving of such

advice and the performance of such services by one for another as a course

of conduct constitute the practice of law.

When applying this test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.”  The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980).

Although a codified definition does not exist, there is a large body of case law applying the Sperry test to determine whether a specific activity constitutes the unlicensed practice of law.  Therefore, although one cannot go to one particular source such as a dictionary for a definition, in most instances whether an activity constitutes the unlicensed practice of law can be found in case law.

Once it is determined whether an activity is the practice of law, it must be determined whether the Court or another body has authorized a nonlawyer to engage in the activity.  An activity may be authorized by court rule, case law, an administrative rule or a federal rule or statute.

What follows is a summary of what has been held to constitute the unlicensed practice of law in various circumstances.  Any authorized activities are also noted.  (Please note that the following is only a partial list of unlicensed practice of law cases.  There are over 230 reported unlicensed practice of law cases/opinions in Florida.)

1. ACCOUNTANTS  

Generally, it constitutes the unlicensed practice of law for an accountant, whether or not a CPA, to draft corporate documents.  Although the accountant may not draft the documents, the accountant may sell the forms necessary to establish a corporation and complete the forms with information provided in writing by the individual.  The Florida Bar v. Fuentes, 190 So 2d 748 (Fla. 1966); The Florida Bar v. Town,174 So. 2d 395 (Fla. 1965), The general rule and exception applies to all nonlawyers.

A CPA may represent individuals before the IRS in tax matters.  This practice is specifically authorized by 26 C.F.R. § 601.502 and C.F.R. Part 10.  As the activity is authorized by a federal rule, Florida may not enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 363 U.S. 379 (1963).

2.  ADMINISTRATIVE PRACTICE

In the Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980) the Supreme Court of Florida held that the legislature has the constitutional authorization to oust the Court’s responsibility to protect the public from the unlicensed practice of law in administrative proceedings under Article V, Section 1 of the Florida Constitution, and when it does so any “practice of law” conduct becomes in effect, authorized representation.  In other words, the legislature may authorize nonlawyer representation in administrative proceedings.  The activity is still the practice of law, it is merely authorized.  However, in order to do so, the agency must have a properly promulgated rule and the nonlawyer must follow the dictates of the rule.  The authorization is not blanket authority to appear in any proceeding but must be sought on a case-by-case and agency-by-agency basis.

3.  APPEARANCES PRO SE

The general rule is that an individual may appear pro se and represent themselves in court.  Fla. Stat. § 454.18.  This general rule does not apply to probate proceedings or to corporations.  In a probate proceeding, unless the individual attempting to appear pro se is the sole interested party in the matter, the individual must be represented by a member of The Florida Bar.  Rule 5.030, Probate and Guardianship Rules, Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).  A corporation, as a fictitious entity, may not appear pro se.  Szteinbaum v. Kaes Invecsiones Valores, 476 So. 2d 247 (Fla. 3d DCA 1985).  The general rule that a corporation may not appear pro se does not apply to small claims court as Rule 7.050 of the Small Claims rules specifically allows a corporation to appear pro se.  However, an exception exist for evictions.  In those cases, a corporation may not appear pro se and must be represented by an attorney.  Johnstown Properties Corp. v. Gabriel, 50 Fla. Supp. 138 (Fla Polk Cty. Court 1980).

4.  FEDERAL PRACTICE

Generally speaking, you must be a member of The Florida Bar in order to represent an individual in federal court.  In the area of federal administrative practice, if there is a rule or regulation which allows an attorney admitted in another state or a nonattorney to appear before the agency, Florida cannot enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 373 U.S. 379 (1963).  The activity is still the practice of law, it is merely authorized.  Whether the activity is allowed and the extent to which the individual may appear and/or practice will be governed by the rules of that particular agency.  If the agency does not have a rule allowing the practice, any representation would constitute the unlicensed practice of law.  The Fla. Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997).

5.  HOUSE COUNSEL

An attorney licensed in a state other than Florida may work in Florida as Authorized House Counsel for a corporation if the attorney registers pursuant to Chapter 17 of the Rules Regulating The Florida Bar.  The activities which the Authorized House Counsel may perform are limited and do not include going to court.

6.  OUT-OF-STATE ATTORNEYS

An attorney admitted to the practice of law in a state other than Florida may not engage in the general practice of law in Florida or establish a law office in Florida.  An attorney licensed to practice law in a state other than Florida may establish an interstate practice in Florida only if the attorney follows the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).  An attorney admitted to the practice of law in a state other than Florida may not appear in a Florida court as the representative of a party unless the attorney first seeks permission to appear pro hac vice pursuant to Rule 2.510 of the Florida Rules of Judicial Administration.  (It should be noted that this rule does not allow a resident of Florida to appear pro hac vice.)  Rule 4-5.5 of the Rules Regulating the Florida Bar describes the legal services in an out-of-state attorney can provide in Florida on a temporary basis.

7.  BANKRUPTCY

It constitutes the unlicensed practice of law for a nonlawyer to prepare bankruptcy forms for another.  The Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998).  This includes the petition and any necessary schedules.  However, the nonlawyer may sell blank forms necessary for a bankruptcy and complete the forms with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So 2d 1186 (Fla. 1978).  It also constitutes the unlicensed practice of law for a nonlawyer to represent someone in bankruptcy court.  The Florida Bar v. Kaufman, 452 So. 2d 526 (Fla. 1984).

8.  DO-IT-YOURSELF LEGAL KITS AND BOOKS

Generally speaking, a nonlawyer may sell legal forms and kits and complete them with information provided in writing by the customer.  Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978).  If the nonlawyer is using a Supreme Court Approved form, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1(a), Rules Regulating The Florida Bar.

Generally speaking, it does not constitute the unlicensed practice of law for a nonlawyer to sell a book that contains general legal information.  New York County Lawyers Association v Dacey, 287 N.Y.S. 2d 422 (N.Y. 1967); 283 N.Y.S.2d 984 (N.Y. App. 1967).  The book may also contain legal forms.

9.  EVICTIONS

It constitutes the unlicensed practice of law for a nonlawyer to represent a third party in an eviction.  Generally speaking, a nonlawyer may not prepare evictions forms for another unless the nonlawyer is merely typing the information provided in writing by the individual or completing a Supreme Court Approved form with the factual information provided by the individual.  An exception exists for property managers.  In The Fla Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions, 605 So. 2d 867 (Fla.1992), clarified, 627 So. 2d 485 (Fla.1993) the Court held that a property manager may sign and file complaints for evictions and motions for default in uncontested residential evictions for nonpayment of rent as long as the property manager is using a Supreme Court Approved form.

10.  FEDERAL PATENT PRACTICE

Title 37 C.F.R. §§10.1(1), 10.6, and 10.36 allow an attorney admitted in another state or a registered patent agent to prepare and file patent applications before the Office of Patent and Trademark.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry,  373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.  However, the authorization granted by the federal regulations does not extend to actions in state court.  Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (Fla. 4th. DCA 2001).

11.  FEDERAL TAX PRACTICE

Title 31 C.F.R. § 10 allows attorneys admitted in any state and some nonlawyers to represent individuals before the IRS.  Similar regulations exist for Tax Court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

Federal regulations also allow nonlawyers to prepare federal income tax returns for individuals.  Arguably, this activity is also the practice of law and merely authorized.

12.  GENEALOGISTS/HEIR HUNTERS

While “heir hunting” is generally allowed and would not be considered the practice of law, the heir hunter may not solicit heirs to recover part of the estate or file pleadings to do so.  The Florida Bar v. Heller, 247 So. 2d 434 (Fla. 1971).

13.  HOLDING OUT TO PERFORM LEGAL SERVICES

It constitutes the unlicensed practice of law for a nonlawyer to hold himself out as an attorney either expressly or impliedly.  This would include using the title Esquire (The Fla. Bar v. DeToma, 501 So. 2d. 599 (Fla. 1987)), using the initials J.D. if they are being used to solicit legal services (The Florida Bar v Catarcio, 709 So. 2d 96 (Fla 1998)), using “legal” in the name of your business (The Florida Bar v. Miravalle, 761 So. 2d 1049 (Fla. 2000)), using the title “attorney” or “lawyer” (The Florida Bar v Gordon, 661 So. 2d 295 (Fla. 1995)), and using any other title, such as notario publico, which holds the person out as being able to provide legal services (The Florida Bar v. Borges-Caignet, 321 So. 2d 550 (Fla. 1975)).  It also constitutes the unlicensed practice of law for a corporation to advertise to provide legal services even if the services are being performed by a member of The Florida Bar.  The Florida Bar v. Consolidated Business and Legal Forms, 386 So. 2d 797 (Fla. 1980).  This is due to the fact that a corporation may not practice law.

The Court has also held that it constitutes the unlicensed practice of law for a group of nonlawyers to hold themselves out as a panel of judges capable of granting divorces in Florida.  The Florida Bar v. Gentz, 640 So. 2d 1105 (Fla. 1994).

Rule 10-2.1(c) of the Rules Regulating The Florida Bar defines “nonlawyer” as including members of the bars of other states.  Therefore, the general case law regarding holding out applies to out-of-state attorneys as well.  However, if the attorney is part of a properly constituted interstate practice or is engaging in an authorized activity in Florida, the attorney’s title may appear on letterhead and business cards as long as necessary limiting language is also included.  The Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981), The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).

14.  IMMIGRATION

Title 8 C.F.R.  292 permits an attorney admitted in another state to represent individuals before the INS.  This permission does not extend to federal district court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

This authorization does not generally extend to nonlawyers.  (There are some very limited circumstances in which a nonlawyer may represent someone before INS such as on a one case basis for no fee.)  Nonlawyer representation of another in an immigration matter therefore constitutues the unlicensed practice of law.  The Florida Bar v. Matus, 528 So. 2d 895 (Fla. 1988), The Florida Bar v. Becerra, 661 So. 2d 299 (Fla. 1995), The Florida Bar v. Lopez, 231 So. 2d 819 (Fla. 1970).

15.  INDIVIDUAL REPRESENTATION

Generally speaking, a nonlawyer may not represent another in court.  An out-of-state attorney who wishes to represent someone in a Florida court must seek permission to appear pro hac vice in order to do so.  Rule 2.510 Fla.R.Jud.Admin. A nonlawyer may be able to represent another individual in an administrative proceeding if the agency has a properly promulgated rule allowing the activity.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).  On a related note, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to represent an individual in a securities arbitration matter.  The Florida Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla.1997).

16.  INSURANCE ADJUSTERS

Florida Statute §626.854 sets forth the definitions and prohibitions on the activities of public adjusters.  Basically, a public adjuster may represent an insured in negotiations with their own insurance company on matters involving property damage.  The public adjuster may not negotiate on matters involving bodily injury or represent the parties in court.  Larson v. Lesser, 106 So 2d 188 (Fla. 1958).

17.  JAILHOUSE LAWYERS

 

There are several constitutional cases from the United States Supreme Court that deal with the issue of legal assistance to inmates.  From an unlicensed practice of law standpoint, the Code of Federal regulations and the Florida Administrative Code allow limited nonlawyer assistance in parole and probation matters.  However, a nonlawyer may not give an inmate legal advice, draft pleadings for the inmate or represent the inmate in court.  The Florida Bar v. Mills, 410 So. 2d 498 (Fla. 1982).

18.  LAW CLERKS/STUDENTS

A law student or law graduate may not practice law unless certified by the Supreme Court of Florida as a Certified Legal Intern pursuant to Chapter 11 of the Rules Regulating The Florida Bar.  If so certified, the law student or law graduate may represent certain individuals in limited circumstances.

19.  MECHANICS LIENS

The Supreme Court of Florida has held that a nonlawyer may prepare the notice to owner and notice to contractor required by the mechanics lien statute.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Notice to Owner and Notice to Contractor, 544 So. 2d 1013 (Fla. 1989).  However, a nonlawyer may not prepare liens or give legal advice regarding the statute.  The Fla. Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996).

20.  PREPARATION OF LEGAL DOCUMENTS

Generally speaking, a nonlawyer may sell forms and complete the form with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). If the nonlawyer is using a form approved by the Supreme Court of Florida, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1 (a), R.Reg.Fla.Bar.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.  This general rule has been applied in a variety of circumstances including the following:

     a.  BANKRUPTCY

Nonlawyers may only type bankruptcy forms from information provided by the individual in writing; they cannot offer legal advice or help select the forms.  In re: Calzadilla, 151 B.R. 622 (Bkrtcy. S. D. Fla. 1993).

     b.  CORPORATE

A nonlawyer may not prepare corporate documents for another.  This includes the articles of incorporation, the corporate charter and related documents.  The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966); The Florida Bar v. Keehley, 190 so. 2d 173 (Fla. 1966).

     c.  DIVORCE

The general rule discussed above applies to the family law area.  The forms contained in the family law rules are considered Supreme Court Approved forms.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.

     d.  INSURANCE DOCUMENTS AND PENSION PLANS

The Supreme Court of Florida has held that a nonlawyer insurance agent may not prepare legal documents, including pension plans.  The Florida Bar v. Turner, 355 So. 2d 766 (Fla. 1978).  However, in the area of pension plans, the Court has held that certain nonlawyers who are authorized to appear before the IRS are allowed to draft certain pension documents, including the plan itself.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. 1990).

     e.  PROBATE

The general rule has been applied to the probate area.  The Supreme Court of Florida has held that it constitutes the unlicensed practice of law for a nonlawyer to draft a living trust and related documents for another. The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992).  The Court also held that a nonlawyer cannot draft a will for a third party.  The Florida Bar v. Larkin, 298 So. 2d 371 (Fla. 1974).  However, a nonlawyer corporate creditor may file a statement of claim in a probate matter.  Summit Pool Supplies v. Price, 461 So. 2d 272 (Fla. 5th. DCA 1985).

     f.  REAL PROPERTY (INCLUDING REAL ESTATE LICENSEES & TITLE INSURANCE        COMPANIES)  

In 1950, the Supreme Court of Florida held that a real estate licensee may prepare the contract for sale of real estate but any other documents must be prepared by a member of The Florida Bar.  Keyes Co. v. Dade County Bar Association, 46 So. 2d 605 (Fla.1950).  The drafting of the contract is considered the practice of law, a non-licensee may not draft the contract.  The Court merely carved out an exception for licensees.

The Court later carved out an exception for title insurance companies.  In The Florida Bar v. McPhee, 195 So. 2d 552 (Fla. 1967) the Court held that a title insurance company may conduct the closing and prepare documents incident to the issuance of title insurance only if the company is actually issuing the title insurance.  Again, the activity is the practice of law, it is just authorized in these limited circumstances to these individuals.

As to others, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to prepare a warranty deed, quitclaim deed, land trusts, leases and mortgage agreements.  The Florida Bar v. Irizarry, 268 So. 2d 377 (Fla. 1972); The Florida Bar v. Hughes, 697 So. 2d 501 (Fla. 1997); The Florida Bar v. Lister, 662 So. 2d 1241 (Fla. 1995); The Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. 1985)(there are 3 Supreme Court Approved leases which nonlawyers may complete with information provided orally by the individual).  However, an authorized agent may bid at a mortgage judicial foreclosure sale.  Heilman v. Suburban Coastal Co., 506 So. 2d 1088 (Fla. 4th DCA 1987).

21.  SEMINARS ON LEGAL RIGHTS

A nonlawyer may conduct a seminar at which general legal information is given, however, the nonlawyer may not give specific legal advice.  The Florida Bar v. Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968).  Therefore, while the nonlawyer may give general information, the nonlawyer may not answer specific legal questions.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552

THE FLORIDA SUPREME COURT DISCIPLINES EIGHT ATTORNEYS

Summary of orders issued Oct. 5 – Dec. 1, 2010

On The Florida Bar’s website, it was announced that The Florida Bar, the state’s guardian for the integrity of the legal profession, that the Florida Supreme Court in recent court orders disciplined eight attorneys, disbarring one and suspending six. Some attorneys received more than one form of discipline. One attorney was publicly reprimanded. Four attorneys were ordered to pay restitution.

It was noted that as an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at The Florida Bar’s website.
These Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam.

This information was obtained from The Florida Bar’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

FLORIDA’S SUPREME COURT DISCIPLINES 18 ATTORNEYS 11/30/10

It was announced November 30, 2010 by The Florida Bar, the state’s guardian for the integrity of the legal profession, that the Florida Supreme Court in recent court orders has disciplined 18 attorneys, disbarring eight and suspending seven. Some attorneys received more than one form of discipline. Two attorneys were publicly reprimanded and three were placed on probation. One attorney was also ordered to pay restitution.

The Florida Bar, an official arm of the Florida Supreme Court, and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida.

The Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. The disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission.

This information was obtained from The Florida Bar’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

FLORIDA SUPREME COURT DISCIPLINES 22 ATTORNEYS 10/28/10

On October 28, 2010, The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined 22 attorneys, disbarring eight and suspending 12. Some attorneys received more than one form of discipline. Two attorneys were publicly reprimanded and one was ordered to pay restitution.

As an official agency of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation, are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 88,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.

The court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission.
This information was obtained from The Florida Bar’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

BAR APPLICANTS IN FINANCIAL TROUBLE

FINANCES CAN BECOME PROBLEMS FOR BAR APPLICANTS

          With increasing frequency I am representing more and more applicants in Florida Bar Investigative Hearings and Formal Hearings before the Florida Board of Bar Examiners with financial problems. These problems range from home foreclosure to unpaid credit card debt.  Applicants ask all the time,”How do I prepare for this hearing when I haven’t done anything to resolve any of these issues?”  Well, the fact of the matter is there are many things you can do. For instance,  it is up to the Florida Bar Applicant to establish a record of rehabilitation at the Investigative or Formal Hearing. One way that I advise my clients to establish financial rehabilitation, is to take a financial educational course. There are several that I find to be particularly helpful and accepted by the Board as establishing financial rehabilitation.  The classes have you set out a plan, which the Board appreciates, that shows how you are going to get out of debt and stay out of debt. If you are in the financial position to pay off debt and close out accounts, then I strongly suggest you do so and submit a newly amended financial affidavit reflecting your new plan.

            The Florida Board of Bar Examiners’ chief concern is that an Applicant isn’t going to turn their back on their creditors. Even if you pay $20 a month or any nominal amount you can afford toward your debt, it is more beneficial to you at your Bar Hearing because this acknowledges you owe the money and are working toward honoring your debts and not turning your back on your creditors. Why are they so concerned you may ask? Well, the answer to that question is simple, trust accounts. You will manage other people’s money as an attorney. If you can’t manage your own finances, don’t expect the Board to allow you to manage others.

            What if my home is in foreclosure or I am delinquent in my mortgage? The popular philosophy on this matter is completely opposite of that of the Florida Bar. Many people feel that in most instances it is financially irresponsible to continue to pay on a mortgage when the value of the house is underwater. The bank took a risk lending on the property just as you took a risk borrowing the money. It was an honest business transaction, with you on the one hand trying to make an investment in a property, and the bank on the other trying to make interest.  However, the Bar does not adopt this outlook and that is the only outlook you should be concerned with. Again, it goes straight to the core of financial responsibility. If you borrow money, you pay it back. If you can’t work out a new deal, then you at least need to stay in constant communication with your creditors and pay what you can. If you can’t pay anything, short sale the property. Also, put everything in writing, send letters so you have documented evidence at your hearing of this communication and work out plan.

            Do everything in your power to resolve all the financial issues before the hearing. Financial irresponsibility is one of the hardest bar hearings to defend because it is a problem today. If you committed a crime years ago, it is actually easier to defend because you have time on your side and it was an isolated incident, whereas with financial problems, as you sit before the Florida Board of Bar Examiners, that problem is still on going. For more advice on Florida Bar Investigative and Formal Hearings you should speak with a lawyer experienced with these types of issues. For a free consultation as to how to prepare for your Florida Bar Investigative Hearing or Formal hearing call, Lars K. Soreide, Esq., with the Soreide Law Group, PLLC. We represent applicants throughout the state of Florida. Our main office is located in downtown Fort Lauderdale. www.FloridaBarHearing.com (888) 760-6552.

The Disciplinary Actions for Substance-Abusing Attorneys Vary Widely

In the National Law Journal, Leigh Jones writes that an Indiana lawyer shows up at the courthouse drunk and gets into a car accident. His license is suspended, but stayed, for 180 days. A New Hampshire attorney and admitted alcoholic takes on what turns out to be a meritless case and conceals the defeat from clients. He is disbarred.

Also, an Iowa attorney and self-described alcohol abuser involved in a series of disciplinary actions, including taking a client’s money and abandoning a divorce case, gets a license suspension. He can apply to renew it in six months. Meanwhile, a Florida attorney who’s been sober and in a 12-step program since his arrest on drug charges in 2004 is disbarred for the six-year-old offense.

Each of these four cases involved substance abuse — and each had a very different outcome. The decisions, all from the past two years, show how broad the inconsistencies are in the way courts dole out punishment for substance-abusing attorneys. Whether because of uneven precedent, murky ethics rules or a hard-line stance against recognizing addiction as a mitigating factor in misconduct, courts can give attorneys little more than a slap on the wrist in some cases. In others, careers are finished.

In the Iowa case, for example, the court found that attorney Ross Hauser, who had practiced for 23 years, abandoned his client’s divorce action and failed to respond to disciplinary complaints. Records indicated that he admitted having a history of alcohol abuse. The Iowa Supreme Court in May, while recognizing the attorney’s multiple previous discipline problems, suspended his license with a chance for reinstatement after six months. The court rejected a recommendation by the state’s grievance commission that he provide ongoing evidence that substance abuse was not affecting his practice. The court wrote that it did not have a system in place to do so.

“There are concerns that attorneys are not being dealt with, one, in an enlightened manner and, two, consistently,” said Judge Robert Childers, chairman of the American Bar Association’s Commission on Lawyer Assistance Programs. He sits on the Tennessee Circuit Court’s 30th Judicial District, based in Memphis.

In New Hampshire, William Conner took on a case representing a couple suing a contractor over the construction of their home. Court records said the lawyer, who admitted that he was an alcoholic and had a previous public censure, failed to pursue the case, which was later determined meritless. The court said he also hid from the couple that the case had been dismissed. The court ruled that, although alcoholism can be a mitigating factor, disbarment was the only appropriate punishment for him.

But, Indiana attorney Peter Katic appeared in court with a blood-alcohol content more than twice the legal limit and was involved in a car accident while intoxicated, according to court records. The Indiana Supreme Court last year suspended Katic, who had previously served as a judge and had been disciplined twice for judicial misconduct, for six months. It stayed the suspension provided that he meet the monitoring requirements of the lawyer assistance program.

Bill Weigel, president of the National Organization of Bar Counsel, recognizes the inconsistencies in how disciplinary bodies and courts deal with substance-abuse problems. Because the cases are so “fact specific,” consistency can be difficult to achieve, he said. “These cases are so situational.”

Richard Baron would like to think that courts have become more enlightened about attorney addiction, but he’s not convinced. For 25 years, Baron has represented attorneys, most with substance-abuse issues, in disciplinary actions. In August, he had one of the biggest surprises of his career. Although his client, Daniel Noah Liberman, had been drug- and alcohol-free for six years, the Florida Supreme Court disbarred him following his guilty plea to a 2004 drug trafficking charge. The court on Aug. 26 rejected a referee’s recommendation that Liberman receive a three-year suspension. He had no previous arrests or discipline problems. The court noted that he “had an illness; he was drug addict.”

Liberman, who had been supplying friends with small amounts of metham­phetamine and Ecstasy, was asked by a friend, who unbeknownst to Liberman had been arrested and was working as an informant, to supply him with Ecstasy for a party. The amount Liberman supplied met the limit for a trafficking charge.

In a dissent, Florida Supreme Court Justice Barbara Pariente wrote that Liberman had accepted responsibility for his conduct, had gone into a rehabilitation program immediately following his arrest and always had tested negative on random drug tests. He was a supervising tutor for children at a charity serving poor and homeless people. The justice wrote that he had continued to work as a paralegal and was “a productive member of society.” She noted that there was no evidence that Liberman’s conduct had harmed any clients.

Even so, the majority concluded that only disbarment could “measure up to the gravity of a conviction for illegal drug trafficking.” The majority also determined that the mitigating circumstances were insufficient to warrant anything less than disbarment. Liberman did not respond to requests for an interview. Baron said the decision demonstrates a “hard right turn” by the court and ignores precedent in a strikingly similar case. “They were out to punish him,” Baron said.

PREVENTION VS. PUNISHMENT

There are about 45 lawyers assistance programs across the country, most of which work directly with bar counsel and courts to provide confidential support and facilitate addiction recovery through drug testing, 12-step programs and mental health assistance. In many states, they provide recovery “contracts” with attorneys, who agree to submit to monitoring.

John Clegg wishes he’d never gotten involved with a lawyers assistance program. The former partner at McGlinchey Stafford got help from the Louisiana program in 2006 for a cocaine addiction after firm leaders confronted him about his erratic behavior. His billing had become inconsistent, he was looking disheveled at work and he had behaved aggressively during a firm-hosted golf tournament, where he told an off-color joke that offended attendees.

Firm leaders and lawyers assistance workers held an intervention for Clegg, who admitted that he had used crack cocaine. He went to 90-day in-patient treatment, and once he got out, he returned to work at the firm under a five-year “contract” with the assistance program.

With his approval, program workers monitored his recovery and — because he had waived the program’s duty of confidentiality — they communicated with the law firm about his recovery progress. When he twice tested positive for drug use, however, the firm, compelled by its duty to its clients, alerted disciplinary authorities.

In July, the Louisiana Supreme Court ruled that, although assistance program volunteers and employees had a duty of confidentiality that participants can waive, that duty did not extend to law firms themselves. The court suspended Clegg for a year and a day and deferred all but six months on the condition that he continue treatment through the lawyers assistance program.

Clegg, who could not be reached for comment for this story, said at the time the decision was issued that he had planned to seek rehabilitation on his own before the intervention but decided to use the Louisiana program once co-workers confronted him. He made the wrong decision about getting help with the Louisiana program, he said. The ruling, he believes, served as a deterrent to getting help. “You’re just setting yourself up for discipline,” he said. “The only charges against me were because I was a [legal assistance program] participant.”

ABA RULES

A way to bring consistency to disciplinary actions involving substance abuse may be through the American Bar Association’s Model Rules of Professional Conduct. Last year, the ABA adopted a rule that substance abuse and mental health professionals hailed as a victory.

The rule allows for the conditional admission to practice for law graduates who have experienced chemical dependency. It provides that applicants who otherwise meet requirements but could have been prohibited from admission because of past drug or alcohol problems can practice if they demonstrate rehabilitation.

Four states are considering adopting the rule. Eighteen already have similar provisions in place. The purpose of the change is to prevent applicants seeking admission to the bar from keeping their addiction and recovery a secret. Otherwise qualified applicants often do not disclose their problems for fear they will prohibit admission, said Childers, chairman of the ABA’s Commission on Lawyer Assistance Programs. Childers pushed for the ABA’s new rule. “It encourages students to get help early on,” he said.

The new rule is not about coddling lawyers, he said. “This really is aimed a protecting the public. There are lawyers out there getting licensed with no conditions, no monitoring in place.”

Childers said he is aware of the Liber­man disbarment in Florida and is troubled by it. The commission will hold its annual conference in October. He expects much discussion about the Liberman case. “I’m hoping it’s an aberration,” he said.

Creating a rule to bring about consistency for existing attorneys is more difficult than dealing with attorneys seeking admission, Childers said. The facts of each case vary significantly, including whether there are prior sanctions, the number of misconduct claims, the degree of client harm and whether laws were broken. The key, he said, is to bring all parties to the table, including bar counsel, judges and health care professionals, and to work through the ABA commission’s “protocol” to create a proposal.

“I’d like to see absolute uniformity, but the facts of every case are different,” he said. “That’s why we have judges.”

This article is from the National Law Journal.

Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

The Use of and Rehabilitation at Formal Hearings at The Florida Board of Bar Examiners

On the Florida Bar Journal’s website, Charles A. Stampelos writes the following:

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.
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.

Stampelos goes on to say that you must advise the board of your mistakes and be absolutely candid 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.

Having disclosed these facts, you may expect the board to invite you to an investigative hearing. 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. 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 evidence 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.

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.

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.

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.

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 corroborated 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 currently me[t] the standards of conduct and fitness . . . .” Id. (emphasis added).

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).

Specifications 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 disbarred 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, 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. 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). 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. 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. In order to have any reasonable expectation of gaining admission, you must plan ahead and develop a plan and begin your rehabilitation now.
This very valuable information was written by Charles A. Stampelos and appears on the Florida Bar Journal’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

SUPREME COURT DISCIPLINES 20 ATTORNEYS 5/25/10

On May 25, 2010,The Florida Bar, the state’s guardian for the integrity of the legal profession, announced that the Florida Supreme Court in recent court orders disciplined 20 attorneys, disbarring six and suspending eight. Some attorneys received more than one form of discipline. Five attorneys were publicly reprimanded and three were placed on probation.

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, less than 5 percent of disbarred lawyers seek readmission.

As an official agency of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 88,000-plus lawyers admitted to practice law in Florida.

Soreide Law Group represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services or to speak to an attorney please visit: www.floridabarhearing.com or call (888) 760-6552.