Proposed Amendment to Rule (a): Requirements and Limitations

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1 Comments of the Florida Association of Criminal Defense Lawyers, and the Florida Association of Criminal Defense Lawyers, Miami Chapter In Re: Amendments to Rules Regulating The Florida Bar Re: Chapter 11 Task Force, Case No The Florida Association of Criminal Defense Lawyers ( FACDL ), and the Florida Association of Criminal Defense Lawyers Miami Chapter ( FACDL- Miami ) respectfully submits these comments in response to the Court s proposed amendments to Chapter 11, Rules Regulating The Florida Bar ( Rules Governing the Law School Practice Program ). First and foremost, FACDL and FACDL-Miami join the Court s legitimate concern that Florida s litigants be faithfully served and that its civil and criminal justice systems operate in a manner to inspire public confidence in the rule of law. The privilege to practice law does not come without responsibilities, and primary among them is our ensuring the provision of competent legal services for all persons, particularly those unable to pay for them, particularly the indigent criminal defendant. The Court and The Florida Bar joined together to encourage law schools to provide clinical instruction in litigation of varying kinds under Chapter 11, Rules Regulating The Florida Bar ( Rules Governing the Law School Practice Program ). Florida s legal educators developed hands-on programs to allow law students to represent clients in the courtroom. It is the finest training for anyone aspiring to be a litigator. The clinical programs do not only provide experience that is unique for a law student, they also are a recruitment tool for quality students and experienced faculty. Applying for a certified legal intern status ( CLI ) allows the student, then graduate to practice prior to taking and passing the Florida Bar Examination ( Bar ). It also allows the CLI a one-year term to practice prior to passing the Bar. see Rule (a). These students and graduates are not let out to practice on their own, rather, they are required to practice while under the supervision of qualified lawyers.

2 With this in mind, FACDL and FACDL-Miami respectfully submit that, as presently proposed, three of the Court s suggestions none of which, we understand, was recommended by the Chapter 11 Task Force do more to undermine than enhance the goals they seek to fulfill of competent representation and quality justice. Proposed Amendment to Rule (a): Requirements and Limitations In order to appear pursuant to Chapter 11, the Court would now require law students first to make application for admission to The Florida Bar as well as receive a letter of initial clearance as to character and fitness from The Florida Board of Bar Examiners. Requiring that Florida law students pledge to sit for the Florida bar as a prerequisite to experiencing the benefit of a clinical legal education is unfair and will likely result in consequences perhaps unintended by the Court. First, not all Florida law students intend to practice law in Florida. Under the Court s current framework, these students would be prohibited from participating in the Program. Second, only these students would be so prohibited. It is questionable whether distinguishing between equally qualified students based solely upon where they intend to practice is rationally related to their knowledge or ability, let alone their character or fitness, and thus implicates equal protection concerns. Third, prior to admission to law school itself, our law schools would be required to provide a disclaimer to its students when they apply. Recruitment will suffer on all levels. None of these factors, we believe, could have been the Court s intention. Another factor that mitigates strongly against the rule amendment is that in order to secure a clearance letter in time, students would have to incur a fee to apply to The Bar during their first semester of study, even if they were not sure they wanted to participate in the Program. As to the clearance itself, we question the wisdom of assigning governance of the Program to the Board of Bar Examiners Florida s investigative body for prospective lawyers, distinct from prospective student-practitioners. FACDL and FACDL-Miami do not oppose a more uniform manner of making 2

3 reasonable background inquiries of Program participants, especially in light of some large-scale failures to self-police that are of evident concern to the Court. But absent a host of undefined procedures, along with the Board s avowed incapability, as presently staffed, to accomplish the task, Florida s traditional six-to-eight month character and fitness investigation seems far too severe an expenditure of time and limited resources. A better idea would be to have Program employers, who are already compelled by rule to conduct their own investigations, do so with the prospective law students. These type of clearances can be effectuated more quickly, and law students would not have to make the decision whether to participate and in what special area, let alone whether to commit to practice in Florida altogether, during the first days of their first year of legal education. Proposed Amendment to Rule (c): Continuation of Practice Program The Court would also terminate certification of those who, after completion of the Program or graduation, fail any portion of the bar examination, even if that portion is the multistate portion, having passed the Florida portion. While the rule s other termination provisions failing to take the next available Florida bar exam and denial of admission to The Bar outright remain unchanged, this amendment would end the year-long grace period and would devastate our prosecutor, public defender and legal aid offices throughout the state. In the 12 months of certification following graduation, many provisional hires mostly governmental -- are able to sit twice for the bar exam, in summer and winter for spring graduates. This is not just about open hearts and second chances, although it stands to reason that those who fail the bar at first try fare far better their second time at bat. This is about both these things. It is about stability. Numerous employers -- again, largely governmental, but many private too -- along with their employees, commit to one another based upon a promise, a covenant to work hard in return for the opportunity. In these circumstances, the decision to extend an offer, and the decision to accept, turn almost exclusively on this mutual pledge. This impacts the hiring of in-state law students and particularly out-of-state graduates. Florida prosecutor and public defender officers seek the best and the brightest from across the country. However, the proposed change would 3

4 cause these talented out-of-state recruits to turn to other states. What employers might benefit from their undertaking would not be worth the effort; and the same would apply to the risks provisional employees take upon relocation. In sum, the proposed amendment would work against bringing the best and brightest to Florida, and destroy the recruiting of many law students from Florida who have CLI status. FACDL and FACDL-Miami believe strongly that it would have an undue impact on our criminal justice system, as many prosecutor and public defender offices fill their new classes almost exclusively with provisional hires. Were this new rule implemented, given the average pass/fail rate, innumerable court divisions would be understaffed due to the firings. As the Court previously found just over a decade ago, this provision should be declined. See The Florida Bar Re: Amendments to Rules Regulating The Florida Bar, Amendment to the Rules Regulating The Florida Bar Rule 4-1.8(e), 635 So.2d 968, 976 (Fla. 1994). Proposed Amendment to Rule : Approval of Legal Aid Organization Finally, the Court intends to limit law student and, thereby, law school clinical and externship participation to legal aid organizations that exclusively provide legal services to the indigent. Most legal aid organizations do just this, but for those that do not, we see no reason to prohibit the Program, to prohibit our students, from practicing within organizations that predominantly service the poor. Conclusion While one unauthorized student may well have slipped scrutiny, and it would be easier to create blanket rules that unintentionally destroy the good intentions of a wonderful program, FACDL and FACDL-Miami submit, most respectfully, that the Court s reaction is unwarranted in scope, and likely to cause unintended consequences. For the reasons set forth, FACDL and FACDL- Miami, request that the Court withdraw its proposed amendments, and revise Chapter 11 of the Rules 4

5 Regulating The Florida Bar consistent with the views and concerns expressed herein Respectfully submitted, MICHAEL J. SNURE BRIAN L. TANNEBAUM FLORIDA BAR NO.: FLORIDA BAR NO.: President President Florida Association of Florida Association of Criminal Defense Lawyers Criminal Defense Lawyers 1150 Louisiana Avenue Miami Chapter Suite One 150 West Flagler Street Winter Park, Florida Penthouse Miami, Florida (fax) (fax) 5

6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was provided via U.S. Mail this 29 th day of September, 2005 to John F. Harkness, Jr., Executive Director of The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida , and William P. White, III, Chair, Chapter 11 Task Force, 25 North Market Street, Suite 200, Jacksonville, Florida BRIAN L. TANNEBAUM 6

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