Fl Bd of Bar Examiners – Criminal, Substance-Alcohol Abuse & Mental Issues at an Investigative Hrg

The great irony of being in a situation to encounter one of these issues at an informal investigative hearing is that you have established yourself as one of the best and brightest, have or are about to graduate 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 or perhaps recent use of marijuana or cocaine or alcohol to excess, or the fact that you have been seen by and counseled by a mental health counselor is that you have most likely dealt with these issues and moved on.

Law schools, as you know, screen applicants with extreme focus to be sure the best and brightest are going to be admitted to their school. Then as a distinguished alumni, they will funnel contributions to the 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 law school to graduate. This is to be expected because the rigors of law school and the methods of teaching are not suited for everybody who is bright enough to be admitted. The bottom line here is that 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 experience has allowed me to work with and along side those who are actually employed by the Board of Bar Examiners as “prosecuting attorneys” and the distinguished panel of Board members who volunteer their time to guarantee the integrity of this process. Their collective goal is to weed out those who are not fit to practice law. My experience has shown that the Board’s application of the stated policies and rules at an investigative hearing is one that allows for an excellent evaluation in the early stages of those 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 your character 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 your formal 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 the criminal 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 opportunity to experience life on its own terms without the safety net of legacy or other helpful heredity, will in the end 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). I say 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 beginning of the end or the end of the beginning.

You have either done the right thing, the application’s out of the way and the character and fitness issues are now being evaluated, or you have not done the right thing and committed “unintentional suicide” while filling out the application. I say unintentional because you will fill out the application as you have others, and you will see nothing wrong with your answers, but the Board of Bar Examiners may 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 so if you have any of the life issues that I’ve 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 crimes such as robbery or as we lovingly said in my prosecution days, “relieving someone else of the responsibility of taking care of their own stuff.” They are now members of The Florida Bar and their experiences in life have made them excellent lawyers. I have also represented folks who have had 3 dozen credit cards all of which were charged to the max and then discharged the whole mess through bankruptcy. 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 a single visit to a counselor after a drunken binge, to those who have been diagnosed as bi-polar or schizophrenic 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 problems whether it be alcohol, street drugs or prescriptions. They worked hard at sobriety and are doing just fine.

You may be surprised, but I have found that those who have faced such problems and overcome them are much more likely not, and I repeat not, to have any formal involvement with The Florida Bar disciplinary system unless it’s to voluntarily work as a grievance committee member.

Responding to Inquiries from The Board of Bar Examiners after you have filed your application: Those of you who fill out your own application without help will probably be peppered with inquiries from the Board of Bar Examiners. This is your second chance to mitigate or ameliorate future damage to your ability to be admitted. There is just too much to cover in this area, but be that as it may, the same advice applies. Experienced assistance is advisable before responding.

The (Board’s) inquiries are artfully drafted and generated because a formal investigation has uncovered issues of interest. There are rules (i.e., proper procedures of how these questions should be answered and in what time frames). Each question must be answered and then sworn to in affidavit 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 the excessive pondering of how they are going to pay their law school loans that they have actually ignored the Board of Bar Examiner inquiries. The mail from the Board of Bar Examiners was put to the side to the point where formal charges are not only levied, but actually admitted against them without their knowledge because they haven’t actually promptly opened their mail.

At this point, not only is it much more financially cumbersome to “dig out”, but it is tougher to overcome some character issues that have now been formed by the Board of Bar Examiners. When “the dog eats your mail” or you don’t know the difference between junk mail and “extremely important career threatening” mail, the Board may just form the opinion that you would not do well with a trust account.

As to the investigative hearing, you may be invited to what is lovingly called an informal investigative hearing. These hearings are awkward to those who have “opportunities/issues” with their character and fitness. Character and fitness is carefully dissected here. Most of my colleagues would agree that preparing and attending the hearing alone is a mistake.

It has been my experience that the preparation for these hearings tends to amount to preparations that we trial lawyers routinely take getting ready for a jury trial. This means they try to anticipate every question that might be asked and based on experience and common sense, understand and appreciate 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 often compounds 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 there really are not that many of them and they are written in terms that, compared to other procedural areas of law, are general versus detailed. The hearing is described generally to see if you have the requisite 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 and determine the character and fitness of every applicant or registrant. The Board take and hear testimony, administer oaths and affirmations and compel by subpoena the attendance of witnesses and the production of books, papers and documents.”

The Possibilities. After the hearing before three Board members, you will receive a notice of Board findings:

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 further investigations; or

d) your notice may say the Board has decided to file formal specifications and endeavor to disallow your 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 because there are opportunities for positive future interactions through the Board of Bar Examiners that you may avail yourself of without having to or prepare yourself for and go through the rigors of a formal hearing 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 against you, the formal specifications.

If you look at the rules, for example 3.22-23, the Board’s rules regarding bar admissions outline how this process will actually take place. There are some things that are similar to civil procedure and some things that really aren’t, but those that are similar to civil procedure are, for example, the answer. 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 formal hearing is much like the informal investigative hearing regarding the rules of evidence. There are also some avenues of reciprocal discovery that you can avail yourself of and generally exhibits and witness lists are exchanged beforehand.

Interesting aspects of the process: There are some very interesting aspects concerning this entire process and I will mention them here.

First, the application itself. Although there are some extremely pointed directions concerning the application 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 reporting machine, 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 which they are referring in an effort to formulate questions. This document is the substance and result of the investigation of your application and any and all responses you have made to inquiries. I will tell you what I always tell those who seek my advice – the investigative document being used by the Board members is complete, accurate and unbelievably detailed. For example, they found that my client had not properly withdrawn from a university in the mid 60’s (yes, 45 years ago), he/she had actually been administratively expelled. He/she never even listed this “attempt” at secondary education in Ohio, I believe, 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 Board’s investigative skills, but they pale in comparison. In other words, this is not informal, nor is it investigative. By the time your invitation is mailed, an exhaustive investigation of your past has left no stone unturned and the investigation is over. The Board learned that my client was a gang member before college. In the hearing, he admitted to selling crack and stealing cars. He had never been arrested as a “gang member” or related 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 for the six member Board. You will never, ever receive a copy of it or get an opportunity to even glance at the contents.

Those of you with some experience will probably compare this to a federal prosecutor’s work product. If you review the Rules Regulating the Rules of Admission to The Florida Bar, you will see the various criteria 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 in agreement with their conclusions, but as you will see, if you review the cases, there are not many options, 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 to Florida Bar Board Examiners re: L.K.D. 397 So.2nd 673-675 (Fla.1981). The long and short of it is that the Supreme Court of Florida reserves the right to review the Board’s recommendation by reviewing the factual underpinnings produced by the application process, informal investigative hearing and the formal hearing along with all of the exhibits and witnesses brought forward by reviewing the transcripts of these hearings.

The caveat as in cases involving lawyer discipline is that you should be careful what you ask for. I say this 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 the Supreme Court increased the disciplinary sanctions recommended by a referee where the respondent lawyer has requested a review by that Court.

The only interesting twist in cases involving candidates for admission to The Florida Bar is that the Supreme Court reviews every decision that the Board of Bar Examiners makes and must concur. For some 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 don’t actually know of a case right off the top of my head where the Supreme Court has overruled the Florida Board of Bar Examiners and let someone in that 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 find that Mr. Ford was a May 2004 graduate. He was rejected for lack of character and fitness. He had a history of mental health issues and some financial issues. He had filed bankruptcy twice and had been in treatment for years for a medical condition. At the time of the hearing, the committee found that Mr. Ford had his mental issues under control with medication and counseling, but had concerns regarding 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 an unidentified concern about the mental health issues by highlighting a perceived pattern of disregard for some drug and alcohol issues. The applicants disregard for the laws of Ohio were cited but it appears that there weren’t enough criminal violations or substance issues that would have otherwise kept him out.

Lack of Candor: You will find that when you fail to fess up to prior criminal convictions and the circumstances 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 of candor will be exacerbated to the point where you will be asked, more than likely, “to take some time off”. An interesting example of this can be found in Florida Board of Bar Examiners Re: D.M.F, 491 So.2d 1104.

Criminal Charges: Mr. Lee King was a peace officer and could serve summons, deliver court papers and was authorized to carry a handgun. He was upset when he wasn’t given a full time sworn police officer position. While off duty he got drunk and used his service weapon to shoot two men several times at close range. The victims were unarmed. Apparently because of Mr. King’s inebriation he was a 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 Texas in 1994. He later moved to Arizona and began working in a law firm in Arizona. He passed the bar exam and finally, after two rounds before the Board of Bar Examiners, the recommendation was that he be admitted to practice law and as in Florida, Arizona has the procedural caveat where the supreme court reserves the right to review all recommendations by the Board of Bar Examiners. The Supreme 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 and identified and overcame the weaknesses that led to the unlawful conduct. In his bar application he stated that due to his strained emotional state and the anti-police sentiment of the day (2003) that it was in his best interest to plead guilty to one charge and throw himself upon the mercy of the court rather than fight the charges. The court felt that King’s explanation was a bit lacking in sincerity and common 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 feelings you will ever have …hearing that you passed the bar exam. The cost of not having to explain to ‘everyone’ why you have a law degree, passed the bar exam and can’t practice law … PRICELESS.”

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