Tuesday, September 29, 2009

Blogging the Board of Bar Examiners Hearings: Lots Of Head Shaking

I didn't like this past round of hearings.

There is a way of asking questions that indicates the questioner thinks the applicant isn't telling the truth, even if they just may be, telling the truth.

You know, it's the "you're sure you don't know why you were fired?" "You really don't remember what the officer said to you 10 years ago?" It's those type of questions that make the applicant feel that they may in fact, be lying. It's also disconcerting when the panelists are passing notes and whispering to each other during the hearing. If the panelists are concerned that a document they have contradicts an answer given by an applicant, then let's see the document, maybe it can be explained.

This is not a game, it's always the future of the applicant that is at stake. There is a difference between thinking the applicant is not telling the truth, and the reality of whether the applicant is actually telling the truth.

This round was one of those where I asked myself "what is the point here?" Is the point to resolve whether the applicant didn't disclose an arrest with intent ("I was afraid I wouldn't get into law school"), or was it negligence? Is the point to determine whether the applicant paid taxes late due to financial difficulties or financial irresponsibility, or is it to make the applicant feel like they are irresponsible, regardless of reality?

I didn't like this round of hearings.

And herein lies the problem: It all depends on who's asking the questions. Some panelists will make it clear they are not trying to "hide the ball," and others have hid the ball in a place that makes you wonder if it's in the same room.

Should a Bar applicant's admission rely on who's asking the questions? You could argue it's like being in court. One judge may determine that there was a good reason for the officer to bust into a house without a warrant, while another may rule otherwise.

The conventional answer is that the applicant can appeal.

Not really. The applicant, usually strapped in law school debt, first has to endure a "formal" hearing. Then they can appeal, to the Florida Supreme Court. The emotional and financial cost, is sometimes impossible for an applicant to take.

Yes, there's three people on the panel in an Investigative Hearing, but one panelist can determine the tone of the hearing.

There are applicants that do not belong in the Bar. Those are obvious. Then there are those who made some mistakes as a youth, missed some payments on bills, lied to someone about something in their past, and who don't do well at these hearings.

To me, the issue should be whether the applicant has the character and fitness to practice in Florida, not whether the applicant did well at the hearing.

There's a difference between an applicant who is not being candid at a hearing, and one who is not performing well.

I always hope that this distinction is made in determining who should be admitted to the Bar.

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


1 comment:

Jeff Gamso said...

A man who'd been on the New York bar's Character Committee for 30 years or so at the time (mid-1970s, maybe) told me that at one time the Committee had viewed its job as keeping as many people out as possible. In more recent years, he said, they viewed the job as letting in everyone they reasonably could.

For whatever it's worth.