Monday, May 21, 2012

Blogging The Florida Board Of Bar Examiners Hearings: Now I'm Confused

Like any lawyer after a long period of time practicing in front of the same court or board, I left this weekend's hearings with a sense of confusion. I thought I understood this process. Maybe I do, but I'm not sure.

The purpose, in my opinion, of bar admission hearings are two fold: One is to ask questions relating to issues of character and fitness, the other is what I call "legalized hazing."

When someone is appointed to the Board of Bar Examiners, they go through some training. Some Board members stick to the script, while others just want to get to the point and determine whether the applicant should be admitted. I don't know what that training entails, but if I had to guess, I would guess the following is taught (it isn't, but it just looks this way from the other side of the table):

1. Make the applicant uncomfortable.

Regardless of their answer to a question, respond with "I'm confused," or "I thought you said before, that...." This is interrogation 101. Make the person being questioned second guess what they just said, even if you know they are telling the truth.

2. Even if you, as a lawyer on the Board, understand how something happened, (because you've been in that situation), pretend you don't.


This always entrigues me, this "I don't understand," when every lawyer who has practiced law for 5 minutes has had the same situation. I sit there and look around thinking "you know what happened here, it happens all the time." Some Board members do the "spoon feeding" thing and say "so what happened was....," while others continue with open ended questions appearing to have no idea what caused the situation to occur.

3. In an "us" vs. "them" mentality - ignore the lawyers who represent applicants.

I've been told this is not true, that members of the Board haven't been told "not" to talk to lawyers that appear before the Board, but "I'm confused" when the more senior members of the Board chat it up with us in the hallways and otherwise outside the hearing setting while the new members make it clear that saying "hello" or even making eye contact is a real problem. By the way, the applicants notice this, and it doesn't say much for the profession. What's funny is that when I'm in court and I see a judge off the bench, I usually say hello instead of turning my head.

4. Assume misinterpretations of questions are lies, lies, lies.

When an applicant says they answered a question because they thought the question said "this" instead of what the Bar Examiner "knows" to be the correct interpretation, what we have here is a difference of interpretations. Sure, some applicants are full of it and were just trying to pass one over on the Board, but let's assume that maybe there's a few that are just not as smart as the Bar Examiners and were just wrong. It is entirely possible that the applicant is not as smart in the nuances of the Bar application as the Board Member.

5. In another attempt to make the applicant uncomfortable, make faces that indicate you are just shocked, shocked, shocked at the answer you are hearing while becoming more aggressive in your questioning.


I was always told that in court, it's inappropriate to make faces. What are we teaching young lawyers?

For that matter, as another Bar Defense Lawyer said to me this weekend "these applicants go to hearings and think that this is the way lawyers behave."

That comment hit me. While the Board is not group of similarly minded, or similarly behaved people, when an applicant pays a fee, plus hires a lawyer, puts on a suit, travels to another city, and sits in a room with those that are judging whether they should be a lawyer - shouldn't they demonstrate lawyers at their best?

Listen, there's nothing wrong with a little in-your-face-talking-to at these hearings. Nothing wrong with scaring the crap out of a potential lawyer in an effort to let them know that this is a rough and tumble profession and certain behavior is not tolerated. But shouldn't there be a demonstration of the behavior that is expected from lawyers?

An applicant's lack of understanding of the question, or the issue that is trying to be created, doesn't always equate to a lie, and many Board members understand this. The purpose of these hearings should, should be to gather information and determine whether the applicant is being candid and whether both those issues establish a person with the character and fitness to be an attorney at law. There's an applicant blatently lying? Slam him. But some of them are being honest, I promise you that.

Which brings me to another issue of confusion: financial responsibility.

I always advise applicants that putting their financial house in order is essential to being admitted in Florida. This means either all debts are paid, there has been efforts to pay, or there is a payment plan. I have declined to represent applicants that have financial issues and have made no effort to resolve them. I know the Board will defer their admission until efforts are made to pay debt. The old "let me in to the Bar so I can make money and then I'll try to pay my debt" doesn't work.

The reasons for the financial issues are still fair game for the Board, as they need to know whether the applicant is responsible when it comes to their own, and more importantly, client funds.

But when there is a large debt, fully paid, and the Board eats the guy alive, casting irrelevance on the payment of the debt, it's more confusion for me. I saw this recently. This was the guy. In the sea of law students with crushing debt, unpaid taxes, maybe mortgage foreclosures, he was the one that paid off a large debt. Man was I excited. What an example.

But that he paid the debt was not even relevant, it seemed. They did all the things I've described above, and made it clear that they were just not believing anything he said about anything.

But the guy had a large debt, and he paid it, every penny.

So what do I tell my clients?

Of course I know what I will tell them in addition to everything else I tell them:

"Ignore the dirty looks and 'shocked' looks on their faces, don't be 'confused' by the 'I'm confused' method of responding to your answers, if you're lying, don't, but if you're not, don't let 'I thought you said' put you off-guard.

And, if you ever get the chance to apply for the Board of Bar Examiners, remember everything that happened when you were there."

Anonymous comments are welcome as long as they say something relevant and half-way intelligent and arent a vehicle for a coward to attack someone. I trust you understand. Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint. Share/Save/Bookmark

20 comments:

Anonymous said...

Finally a useful post.

Brian Tannebaum said...

Thank you Anonymous, now I can sleep at night.

Melissa Brumback said...

How can one post both make me laugh out loud (literally, none of that "ROFLMAO" nonsense) AND make me angry at these jerks at the same time?

For those of us NOT licensed in Fla, do all applicants have this "honor" or only the chosen few?

Anonymous said...

You're so rude to people (granted, on the internet) yet preach about the merits of civility.

I found your blog when going through a C&F review and found it a very useful look into the process and always came back eager to read more installments on the subject. But your blog turned into this odd, completely irrelevant place for you to rant and rave against the dangers of social media and on-line promotion to the profession. Please post more about the issues facing bar applicants undergoing the C&F process and less about whatever it is you are so angry about...

Brian Tannebaum said...

I'm so sorry Anonymous. I sometimes forget that I'm supposed to only write about things that interest you. Please forgive me.

Anonymous said...

No problem, you are forgiven. Resume writing about relevant things! THANKS FOR UNDERSTANDING!

Jordan Rushie said...

Interesting post. I serve on compulsory arbitration panels in Philadelphia and I've noticed that defense attorneys try and do the same with unsophisticated plaintiffs.

"Sir, back in 1982, isn't it true you had a wrist injury?"
"Um, I don't really remember... maybe."
"I subpoenaed your medical records from high school. You didn't disclose that wrist injury in your response to interrogatories, did you?"
"What are interrogatories?"
"Here, these. You signed this verification, didn't you?"
"I... I don't know. I mean, I don't know. My lawyer answered them."
"I'm a bit confused. Didn't my interrogatory say 'every injury you have ever had'?"
"Um, I guess."
"You guess?!" (looks disgusted)
"I don't know. I mean, yeah. I guess. I sprained my wrist when I fell off a swing set. Guess I forgot to mention this. It was about 20 years ago. What does this have to do with my back injury, anyway?"
"Were you lying then or lying now?"

Maybe that stuff is persuasive for a jury, but at the arbitration level, we all just end up saying "Defense counsel was really annoying. She kept beating up on some poor unsophisticated litigant over a wrist injury he forgot to disclose."

Of course, bar examiners just get to do whatever.

Anonymous said...

Dear Sh*^ for Brains,

If I am going to peruse this crappy blog, I expect 2 posts per week.

You have more than enough anger for two posts per week.

Suck it up, stop kissing ass to the civil lawyers who send you work, stop wasting time on ABOVEBIGLAWSUCKSBLOG, and blog, angry boy.

Youre from Miami. You work. dont pretend.

Anonymous said...

Having been through this process, I have to say this is completely true. Both the content of the questioning and the manner in which it is delievered is border line ridiculous. It likes these are sadistic people who have a bug under a magnifying glasson a hot day. And the idea that something is rationally related to the practice of law? It is more like they think they are the deacon board and you are big trouble for fishing on Sunday. I found it the examiner to be unprepared and the display to be an embarassment to Board and to me. I sat quietly, a person who gets more calm when people shout and snarl at me, obviously attempting to distort the record with questions that are completely baseless in light of the undisputed facts. Just let it roll off. And moreover, while it may be the idea of the farcical process, go to another state where the admissions authorities are in touch with reality.

Anonymous said...

I had the unfortunate luck to get stuck in the FBBE's gauntlet. I admit that my application deserved an investigative hearing, but Florida, in my opinion, goes above and beyond.

I was admitted in Georgia unconditionally after a 5 minute investigative hearing. The Florid investigative hearing, hour and a half. Outcome, 1 year withdrawl and community service. Fortunately, I was admitted without conditions. For those of you in similiar situation, keep your head up. At the end of the day the FBBE eventually do the right thing; just takes a while.

Also, this blog is generally spot on regarding the hearings and process.

Anonymous said...

I had a hearing during the last round and it went better than I thought. I didn't have a lot of people trying to trick me with tough questions, or asking things that were off topic. I screwed up on my law school app, and on my bar app, and basically everywhere else in between, but they really just let me tell my story and explain myself.

I think they really just want people to take responsibility for the bad things they've done and show the Board that they know its serious and that they are committed to doing right in situations where they have previously done wrong.

The biggest thing here is patience. It was over 15 months from the time I filed my application to when I had my hearing. However, when the time came I was prepared (lots of help from my attorney) and we got what I think is the best possible result.

Kissimmee Kid said...

I'd like to have heard more on the legal hazing. Law is my second career, and I am old enough to have gone to college when fraternities hazed. I wanted to belong to a frat, and I went through the process.

Years later, when I sat in Curtis Hixon hall in Tampa and watched the older brothers prowl the hall, I recognized the attorney admission system for what it was; hazing.

I know in our pc culture we denounce hazing, but, if we were honest about our world we would admit that there is some merit to a system where those who want to belong to a group pass through a pledgeship before they are admitted. Would the Marine Corps be the valued fighting unit the nation needs without Paris Island? Don't we haze medical interns before they become doctors?

Let us be honest. Some applicants to the bar are put through the wringer just to scare all the other applicants. The board members described in this post are just frat boys in suits, not that there is anything wrong with that.

Anonymous said...

I too danced the dance with the FBBE. Beware of the FLA (Florida Lawyers Assistance) cures everything approach - unless you have ongoing substance abuse issues. If not it is a vortex that will drain your wallet.

I also love how condescending the FBBE members can be. For example, Question: Do you know that as a lawyer you will have to communicate with judges, other lawyers, court staff, and the public at large?

Anonymous said...

Brian,

Any idea as to how often the FBBEs meet. I have passed the bar and was told that everything for my application is received, however I have to wait for the next board meeting in order for my clearance to be sworn in. It's been a month since I got my results and its killing me.

Brian Tannebaum said...

Friday

Anonymous said...

Brian, your post is smack on point. This process lacks rhyme or reason.

Anonymous said...

I would love a few more blog posts of encouragement and "what to expect." I know I'm in for some serious unpleasantness, but some war stories mixed in with a little more of the content of this blog entry would make a bunch of us feel much more at ease.

I'm in the unfortunate position of having to jump through hoop after hoop (mostly because I was old enough to have made a mistake or two by the time I got to law school). There are so many horror stories of how the FBBE "hazes" people who answer "Yes" to ANY question on their bar application, but I can't tell you how much I would love to hear what you have to say about what to expect, and/or what you have seen.

First day of law school orientation we were told "DO NOT LIE TO THE FBBE. If you've messed up, you've messed up, just make sure you tell them. Disclose, Disclose, Disclose!" I've followed that advice, but it still feels like I'm stuck in the rabbit hole.

Thank You

Brian Tannebaum said...

6:34 p.m., anything else I can do for you?

Anonymous said...

I think this is great and accurate. Since having my investigate hearing a few months ago, I feel like a new post on here would add some credibility to the blog.

I want to start by saying I applied in 2013, when I received my clearance 21 months had gone by. It took three months to get a hearing and another month to get a result. Here is the best advice I can give to someone who just found out they have an investigate hearing:

(1) Get a lawyer.
(2) If you lied start coming clean. But refer to (1) before you start coming clean.
(3) If you didn't lie go back over everything and figure out what looks so bad and start explaining it very candidly or fixing it if possible. Again, refer to (1). Don't do anything unless your lawyer okays it.
(4) The board doesn't do anything fast. So just because you replied or made amendment don't think they are going to quickly react too. It was a lot of waiting.

Emphasis on the attorney. Get one you trust and like, and then when you hire him/her take the time to get their opinion before you interact with anyone about your matter (e.g. your school, your old school, past employer, police, etc.). I didn't want to risk running up my fee with my lawyer, I tried to handle a related matter on my own and made my situation twice as difficult.

Good luck! And for those of you like me you probably need to hear it's okay, start forgiving yourself, you can be redeemed.

Anonymous said...

Based on my personal experience, having undergone the torture for more than a year to finally receive the oath, the Board serves to, essentially, torture would-be Florida lawyers.

The utter lack of communication is reminiscent of Kafka's book "The Trial."

Stick to your guns, disclose everything, and pray.