Sunday, January 31, 2010

Back From The Board of Bar Examiners Hearings, With A Question

I had an interesting series of hearings last week. I left with some observations as usual, but also a question.

My question is "what is the purpose of this process?"

I always thought the process was meant to determine whether the applicant has the character and fitness to be a Member of the Florida Bar. I left this weekend thinking the process is meant to determine whether the applicant can back out of the corner they've been backed into at their hearing.

I'm not going to get into the details here, it's not fair to my clients, but safe to say all three hearings evidenced that the environment of these hearings is changing. Maybe it's too many applicants or maybe it's that this generation of new lawyers are just complete liars, criminals, scoundrels, and unworthy of practicing in Florida. I can't tell.

These applicants are scared, they're nervous. They're not there to perform. They are there to clear up any issues the Board may have as to their past - a past that is not perfect. Yes, some of them will lie, some of them can't be candid at all, but for the rest maybe that imperfect past will make them better lawyers than the lily white applicants the Board never sees.

Should we question these applicants on their failure to disclose issues and their candor? Absolutely. But we have gone overboard.

Well, no reason to complain without offering suggestions.

So here they are:

1. The Board is an arm of the Florida Supreme Court. I'd like the Florida Supreme Court Justices to randomly attend these hearings and observe.

2. Initial "Hearings" should be in the form of meetings, under oath, with "A" Bar Examiner, where questions are asked. If that examiner determines further inquiry is necessary, they will put their findings in writing for further determination by the Board. (In other states, applicants meet with individual examiners).

3. Just like oral arguments in the Florida and U.S Supreme Court where important things like the death penalty are being decided, hearings must be time limited. Thirty minutes. These time limits will prevent the examiners from engaging in anything less than direct questions designed to obtain direct answers.Hearings are taking way too long. My 1:30 hearing started at 2:45, and ended at 4:30. I was speaking to a colleague of an applicant who was hoping at 9:30 (while waiting for their 9:00 a.m. hearing to start), to make the 11:00 a.m. flight home. (The hearings were in the airport, steps from the gates). When she was still waiting at 10:50 a.m. for her colleague to have his 9:00 a.m. hearing, she just shrugged her shoulders at me.

3. Any issue over 10 years old must be certified by the Board to be of "great significance" to be part of any hearing.

4. Speeding tickets and the like have nothing to do with anyone's ability to be a good and ethical lawyer. I've been a lawyer 15 years, and not once have I ever had a potential or current client say "Mr. Tannebaum, what's your driving record like?" Nor has a client accused me of an ethics violation because of a traffic ticket. I know, they show disrespect for the law, but not too much disrespect.

I think for the most part the Board does the right thing. I just think getting there can be done a bit more efficiently.

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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1 comment:

Juan said...

Thank you for saying what I was thinking, but cannot say because then I would be deemed to be fostering ill will against the Board and their staff. As an applicant stuck in the bureaucratic wheel of the FBBE, I agree the process should be streamlined. Unfortunately, in my case just being a taxpaying citizen does nothing to change the rules. How can one change the rules if rulemakers are unyielding in thier beliefs that the system that is in place works? I guess one could publicly comment on the Board's suggested rule amemendments, but the Board has limitless deference and the Supreme Court almost never, at least form what I have seen, questions their policies or their reasons for amending the rules. They have unbridled latitutde to do what they want and make any detrmination about any applicant, whether based on fact, reality or just their gut feeling. Isn't that why there are lawyers in the first place? To make ceratain that fact finders hear all the relevant evidence and then decide? I like the idea of forcing the investiigative panel put their findings in writing. At least an applicant can figure out what it is that they find so reprehnsible about him/her. The FBBE abuses its power in the pursuit of noble cause - protecting the public. In truth, don't you think that they are really just protecting themselves from there being more lawyers in the marketplace? Unfortunately, as long as there are too many lawyers and too few clients to go around I fear that things will remain staus quo.