Wednesday, February 4, 2009

Florida Supreme Court: "Member Of The Bar" Means, Well, Not What It Says

The Florida Supreme Court has determined in this Advisory Opinion that elected-but-not-yet-seated Circuit Court Judge William Abramson cannot take the bench because he is not a "Member of the Bar" in the sense that, well, being a "Member of the Bar" doesn't mean you can be a "suspended Member of the Bar."

I disagree.

If you don't know about this case, oh man, talk about a controversial judicial race. Just take a quick read here

The Court correctly framed the issue as "whether suspended lawyers are “member[s] of the bar of Florida” for the purpose of satisfying the eligibility requirements for circuit court judge as specified in article V, section 8 of the Florida Constitution."

Section 8 provides: "No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida. No person is eligible for the office of circuit judge unless the person is, and has been for the preceding five years, a member of the bar of Florida."

The Court noted that under Florida Bar Rule 3-5.1(e), a suspended lawyer is a member of the Bar, but lacks the privilege to practice law, but that in adopting the Rules Regulating the Florida Bar, they did so 'to regulate the admission of persons to the practice of law and the discipline of persons admitted.'"

Here's where they make law: "We in no way intended for those rules and our disciplinary cases to define the phrase “a member of the bar of Florida” as used in article V, section 8."

To bolster their memory of the intent of the rule, they turn to the law of other states to, as they say "determine the “common sense understanding” of a provision in our constitution."

The Court states: "Based on cases from other state supreme courts, it is the 'common sense understanding' that where Bar membership is an eligibility requirement for judicial office, one may not be a judge in a court in which one’s own practice as a lawyer would be disallowed. See State ex rel. Willis v. Monfort, 159 P. 889, 891 (Wash. 1916) ( “[N]o person is eligible to the office of judge of the superior court unless . . . he is, at the time he becomes a candidate or is required to qualify as such judge, entitled to practice in the courts of this state.”); see also Johnson v. State Bar of Cal., 73 P.2d 1191, 1193 (Cal. 1937) (“Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible.”); Hanson v. Cornell, 12 P.2d 802, 804 (Kan. 1932) (“Obviously the Legislature intended that for one to be qualified to hold the office of judge . . . his admission to practice law created a status which continued and under which he was engaged in the active and continuous practice of law . . . .”); Cornett v. Judicial Ret. & Removal Comm’n, 625 S.W.2d 564 (Ky. 1981) (stating that a person under temporary suspension from the practice of law cannot serve as a judge).

"Therefore, (author's note: 'because other states say this,') we determine that article V, section 8 of the Florida Constitution contemplates that “a member of the bar of Florida” is a member with the privilege to practice law. It follows that a lawyer who is suspended from the practice of law fails to satisfy the constitutional eligibility requirements for a circuit court
judgeship."


My opinion: Abramson should be commissioned as a circuit court judge. The laws should be strictly construed unless it would render an absurd result. When a lawyer becomes a judge they are not subject to Bar discipline except in limited circumstances. Member of the Bar is different than Member of the Bar in Good Standing. There are members in good standing, suspended members, and then there are those that are disbarred. When you are suspended, you are subject to the Rules Regulating the Florida Bar even though you cannot practice, so you are still a member of the Bar. When Florida has to look to other states to determine the definition of "member of the Bar," it is clear that the term is not properly defined that that should enure to the benefit of Abramson.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. Please visit www.tannebaumweiss.com

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5 comments:

Josh King said...

Pretty ridiculous result. Under this ruling, anyone who didn't have 10 years of uninterrupted eligibility prior to taking the bench would not be qualified to serve.

Odds that there are FL judges who had suspensions or went inactive at some point during the 10-year window? Must they now be removed from the bench?

Brian Tannebaum said...

While I wish more common sense was applied to statutes, (you know Burglary with Battery - a.k.a home invasion - is a life felony in Florida, which means if boyfriend walks in to ex girlfriend's house to get his "sh*t" and touches her, it's the same thing), but this is taking a specific case and re-defining the meaning of "Member of the Bar," for the circumstance where the "Member" becomes a judge.

I wonder if he'll take the case to the Feds.

South Florida Lawyers said...

I have to agree with you (again!).

Pretty lame results-driven interpretation of "member of the bar" language.

Brian Tannebaum said...

SFL, agreeing with me is simply a function of your steadfast commitment to justice. You are truly a carrier of the torch my friend.

britney said...

nice post and thanks for sharing....

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