Fl Bd Of Bar Examiners - Criminal, Substance-Alcohol Abuse & Mental Issues At An Investigative Hrg (1)
Fl Bd Of Bar Examiners - Criminal, Substance-Alcohol Abuse &Mental Issues At An Investigative HrgThe great irony of being in a situation to encounter one of these issues at an informal investigativehearing is that you have established yourself as one of the best and brightest, have or are about tograduate law school and you are about to set forth and pass the bar exam.This interesting situation of having to answer questions about your past indiscretions, your past orperhaps recent use of marijuana or cocaine or alcohol to excess, or the fact that you have been seenby and counseled by a mental health counselor is that you have most likely dealt with these issuesand moved on.Law schools, as you know, screen applicants with extreme focus to be sure the best and brightest aregoing to be admitted to their school. Then as a distinguished alumni, they will funnel contributions tothe law school to make it an even stronger and more viable institution.You may be interested to know that law schools do not expect everyone who is admitted to lawschool to graduate. This is to be expected because the rigors of law school and the methods ofteaching are not suited for everybody who is bright enough to be admitted. The bottom line here isthat you have survived and you see the finish line ahead. Congratulations!The Florida Board of Bar Examiners is not evil, vindictive or sadistic.I have had the opportunity to work with The Florida Bar for many, many years and this experiencehas allowed me to work with and along side those who are actually employed by the Board of BarExaminers as "prosecuting attorneys" and the distinguished panel of Board members who volunteertheir time to guarantee the integrity of this process. Their collective goal is to weed out those who arenot fit to practice law. My experience has shown that the Boards application of the stated policies andrules at an investigative hearing is one that allows for an excellent evaluation in the early stages ofthose who need further scrutiny and those who do not.Most of you who apply will meet the requirements therein, and pass the bar examination with yourcharacter and fitness issues behind you. Some of you will not. This is not to say you are less human,but I have a hypothesis to help you answer the "why me".You who have had an opportunity to experience life have not been sheltered or ushered through yourformal education experience by your parents or some other benefactor.This all boils down to one basic concept, most who are invited to discuss large credit card debt,former substance abuse, mental health counseling or common real life indiscretions that involve thecriminal justice system are normal healthy active and otherwise excellent citizens.It is just my opinion, but it is my opinion nonetheless, that those of you who have had the opportunityto experience life on its own terms without the safety net of legacy or other helpful heredity, will in theend make the best advocates and counselors of the law.The application process and investigative hearings:The application process is the most important stage of your legal career bar none (pardon the pun). Isay this because having been a lawyer for 17 or so years and one who has dealt with these matters
for many, many years, I have found that the application and how it is filled out is either the beginningof the end or the end of the beginning.You have either done the right thing, the applications out of the way and the character and fitnessissues are now being evaluated, or you have not done the right thing and committed "unintentionalsuicide" while filling out the application. I say unintentional because you will fill out the application asyou have others, and you will see nothing wrong with your answers, but the Board of Bar Examinersmay take issue with the "quality" of your responses.The application process is the best time to find competent assistance. I would urge all of you to do soif you have any of the life issues that Ive already mentioned. I can tell you with great confidence,none of these issues will disqualify you to become a lawyer.Believe it or start writing your own headstone.I have represented people who have been in prison for more than 5 years because of various crimessuch as robbery or as we lovingly said in my prosecution days, "relieving someone else of theresponsibility of taking care of their own stuff." They are now members of The Florida Bar and theirexperiences in life have made them excellent lawyers. I have also represented folks who have had 3dozen credit cards all of which were charged to the max and then discharged the whole mess throughbankruptcy. Everyone of them now has the title "Esquire" after their respective names.I have seen dozens of applicants who have had various and sundry mental health issues from asingle visit to a counselor after a drunken binge, to those who have been diagnosed as bi-polar orschizophrenic or both. They are now practicing lawyers and excellent members of our bar. And,finally, I have seen several dozen applicants who had documented substance abuse problemswhether it be alcohol, street drugs or prescriptions. They worked hard at sobriety and are doing justfine.You may be surprised, but I have found that those who have faced such problems and overcomethem are much more likely not, and I repeat not, to have any formal involvement with The Florida Bardisciplinary system unless its to voluntarily work as a grievance committee member.Responding to Inquiries from The Board of Bar Examiners after you have filed yourapplication: Those of you who fill out your own application without help will probably be pepperedwith inquiries from the Board of Bar Examiners. This is your second chance to mitigate or amelioratefuture damage to your ability to be admitted. There is just too much to cover in this area, but be thatas it may, the same advice applies. Experienced assistance is advisable before responding.The (Boards) inquiries are artfully drafted and generated because a formal investigation hasuncovered issues of interest. There are rules (i.e., proper procedures of how these questions shouldbe answered and in what time frames). Each question must be answered and then sworn to inaffidavit form (i.e., you swear you are not fibbing again).I have had clients who have literally been so busy with internships and job interviews and theexcessive pondering of how they are going to pay their law school loans that they have actuallyignored the Board of Bar Examiner inquiries. The mail from the Board of Bar Examiners was put tothe side to the point where formal charges are not only levied, but actually admitted against them
without their knowledge because they havent actually promptly opened their mail.At this point, not only is it much more financially cumbersome to "dig out", but it is tougher toovercome some character issues that have now been formed by the Board of Bar Examiners. When"the dog eats your mail" or you dont know the difference between junk mail and "extremely importantcareer threatening" mail, the Board may just form the opinion that you would not do well with a trustaccount.As to the investigative hearing, you may be invited to what is lovingly called an informal investigativehearing. These hearings are awkward to those who have "opportunities/issues" with their characterand fitness. Character and fitness is carefully dissected here. Most of my colleagues would agree thatpreparing and attending the hearing alone is a mistake.It has been my experience that the preparation for these hearings tends to amount to preparationsthat we trial lawyers routinely take getting ready for a jury trial. This means they try to anticipate everyquestion that might be asked and based on experience and common sense, understand andappreciate the reasons why certain questions or issues may be outlined in your invitation to the"informal" investigative hearing.Now, everybody has a right to have counsel, but a great many decide to go it alone which oftencompounds the need for counsel in the future.The Rules. If you read the rules regulating admissions to the bar here in Florida, you will find therereally are not that many of them and they are written in terms that, compared to other proceduralareas of law, are general versus detailed. The hearing is described generally to see if you have therequisite character and fitness without clear guidance of how it is measured."Rule 3-21 Inquiry process. The Board shall conduct an investigation and otherwise inquire into anddetermine the character and fitness of every applicant or registrant. The Board take and heartestimony, administer oaths and affirmations and compel by subpoena the attendance of witnessesand the production of books, papers and documents."The Possibilities. After the hearing before three Board members, you will receive a notice of Boardfindings:a) your notice may say the Board has decided to recommend your admission;b) your notice may say that the Board has decided to admit you if you meet conditions subsequent.This will delay your efforts;c) your notice may say that the Board has decided to defer their decision pending furtherinvestigations; ord) your notice may say the Board has decided to file formal specifications and endeavor to disallowyour admission altogether at a formal hearing.If you have not sought counsel up to this point, I would strongly urge that you do so now becausethere are opportunities for positive future interactions through the Board of Bar Examiners that youmay avail yourself of without having to or prepare yourself for and go through the rigors of a formalhearing which are to say the least "challenging".The Formal Hearing.
The formal hearing is much like trial on the merits of those charges or issues that have filed againstyou, the formal specifications.If you look at the rules, for example 3.22-23, the Boards rules regarding bar admissions outline howthis process will actually take place. There are some things that are similar to civil procedure andsome things that really arent, but those that are similar to civil procedure are, for example, theanswer. Specifications will be much like a formal complaint that may be answered either by admitting,denying or some other form of negotiated result to any specification. You will find that the formalhearing is much like the informal investigative hearing regarding the rules of evidence. There are alsosome avenues of reciprocal discovery that you can avail yourself of and generally exhibits andwitness lists are exchanged beforehand.Interesting aspects of the process: There are some very interesting aspects concerning this entireprocess and I will mention them here.First, the application itself. Although there are some extremely pointed directions concerning theapplication and how it is to be filled out, there is plenty of room for self-analysis and self-determination.Second is the investigative hearing. The hearing is announced as the informal investigative hearing.As you walk in, you will find a court reporter who will not only have his/her fancy court reportingmachine, but also a tape backup and microphones strewn about to make sure nothing is missed.You will also find that the Board members that are asking you questions have a document to whichthey are referring in an effort to formulate questions. This document is the substance and result of theinvestigation of your application and any and all responses you have made to inquiries. I will tell youwhat I always tell those who seek my advice - the investigative document being used by the Boardmembers is complete, accurate and unbelievably detailed. For example, they found that my client hadnot properly withdrawn from a university in the mid 60s (yes, 45 years ago), he/she had actually beenadministratively expelled. He/she never even listed this "attempt" at secondary education in Ohio, Ibelieve, on any job application in his/her entire life. My client had already passed the bar exam.I will also tell you that I do my best to match the Boards investigative skills, but they pale incomparison. In other words, this is not informal, nor is it investigative. By the time your invitation ismailed, an exhaustive investigation of your past has left no stone unturned and the investigation isover. The Board learned that my client was a gang member before college. In the hearing, headmitted to selling crack and stealing cars. He had never been arrested as a "gang member" orrelated activity, and he had not admitted this to me.Lastly, this investigative report will be the foundation for the formal hearing in regard to preparation forthe six member Board. You will never, ever receive a copy of it or get an opportunity to even glanceat the contents.Those of you with some experience will probably compare this to a federal prosecutors work product.If you review the Rules Regulating the Rules of Admission to The Florida Bar, you will see the variouscriteria concerning the determination of your character. Some of them are obvious, some are not.The Board reserves the right to decide after caucusing with each other, subsequent to an
investigative hearing or formal hearing, what is believable and what is not. You may not be inagreement with their conclusions, but as you will see, if you review the cases, there are not manyoptions, if any, to overturn the decisions made by the Board of Bar Examiners.To highlight the opportunities for changing the results at such a hearing, you may want to refer toFlorida Bar Board Examiners re: L.K.D. 397 So.2nd 673-675 (Fla.1981). The long and short of it isthat the Supreme Court of Florida reserves the right to review the Boards recommendation byreviewing the factual underpinnings produced by the application process, informal investigativehearing and the formal hearing along with all of the exhibits and witnesses brought forward byreviewing the transcripts of these hearings.The caveat as in cases involving lawyer discipline is that you should be careful what you ask for. I saythis because the court may and has overturned the recommendations of the Board of Bar Examiners,when after a formal hearing, has actually recommended the admission of the lawyer and similarly theSupreme Court increased the disciplinary sanctions recommended by a referee where therespondent lawyer has requested a review by that Court.The only interesting twist in cases involving candidates for admission to The Florida Bar is that theSupreme Court reviews every decision that the Board of Bar Examiners makes and must concur. Forsome interesting reading, I recommend that you read Florida Board of Bar Examiners Re: M.B.S. Fla.2007, if you have Lexus, or if you have West Law, it is Florida Supreme Court Case No. SC05-1118.Lastly, I will tell you from my experience that I dont actually know of a case right off the top of myhead where the Supreme Court has overruled the Florida Board of Bar Examiners and let someone inthat the Board recommended should not be admitted.Cases and Discussion: Mental Health Issues: In re Ford, 854 N.E. 2d 501, (Ohio 206). You will findthat Mr. Ford was a May 2004 graduate. He was rejected for lack of character and fitness. He had ahistory of mental health issues and some financial issues. He had filed bankruptcy twice and hadbeen in treatment for years for a medical condition. At the time of the hearing, the committee foundthat Mr. Ford had his mental issues under control with medication and counseling, but had concernsregarding the stress of practicing law and this condition. As you will see if you read this entire case,the court adopted the recommendation of the Board, which precluded the admission to the bar.After reading this case, I am confused, but believe the Ohio court backed into their decision by anunidentified concern about the mental health issues by highlighting a perceived pattern of disregardfor some drug and alcohol issues. The applicants disregard for the laws of Ohio were cited but itappears that there werent enough criminal violations or substance issues that would have otherwisekept him out.Lack of Candor: You will find that when you fail to fess up to prior criminal convictions and thecircumstances therein, not only will the Board find out, but they will have a concern over your candor.If you further go to an investigative hearing and continue to stand on these tiny fibs, your initial lack ofcandor will be exacerbated to the point where you will be asked, more than likely, "to take some timeoff". An interesting example of this can be found in Florida Board of Bar Examiners Re: D.M.F, 491So.2d 1104.
Criminal Charges: Mr. Lee King was a peace officer and could serve summons, deliver court papersand was authorized to carry a handgun. He was upset when he wasnt given a full time sworn policeofficer position. While off duty he got drunk and used his service weapon to shoot two men severaltimes at close range. The victims were unarmed. Apparently because of Mr. Kings inebriation he wasa poor shot. He was convicted, served time, went through mental health counseling.He then decided law school was a good career move. He was admitted to the practice of law in Texasin 1994. He later moved to Arizona and began working in a law firm in Arizona. He passed the barexam and finally, after two rounds before the Board of Bar Examiners, the recommendation was thathe be admitted to practice law and as in Florida, Arizona has the procedural caveat where thesupreme court reserves the right to review all recommendations by the Board of Bar Examiners. TheSupreme Court stated that Mr. King would have to show an extraordinary amount of rehabilitation.The court said he would have to establish that he accepted responsibility for his past conduct andidentified and overcame the weaknesses that led to the unlawful conduct. In his bar application hestated that due to his strained emotional state and the anti-police sentiment of the day (2003) that itwas in his best interest to plead guilty to one charge and throw himself upon the mercy of the courtrather than fight the charges. The court felt that Kings explanation was a bit lacking in sincerity andcommon sense. He never became a lawyer in Arizona. Perhaps he is a "packing heat" Texas lawyer!Closing remarks: To borrow a theme from some commercials of the day: "The cost of law school$100,000.00. The cost of preparing for and taking the Bar exam $5,000.00. Perhaps the best feelingsyou will ever have...hearing that you passed the bar exam. The cost of not having to explain toeveryone why you have a law degree, passed the bar exam and cant practice law... PRICELESS."RN to BSN Ohio University