IN THE SUPREME COURT OF FLORIDA In Re: Amendments to Rules Regulating the Florida Bar Re: Chapter 11 Task Force, Case No. 03-122 To The Florida Supreme Court: My name is Don L. Horn and I am Chief Assistant State Attorney for Administration in the Miami-Dade County State Attorney's Office. I am sending these comments in objection to changes proposed to Rule 11. My comments are directed at proposed Rule 11-1.9 (c), Termination of Certification and Rule 11-1.3 (a), which will require an initial clearance letter as to character and fitness from the Florida Board of Bar Examiners. In my capacity as Chief of Administration for this office my duties include, among other things, recruitment, hiring, and direct supervision of our County Court Crimes/DUI Division, County Court Domestic Violence Unit and Juvenile Division. In accordance with the requirements of Rule 11 I am also the supervising attorney who is responsible for ensuring that our applicants meet the requirements to become CLIs under the rule. As a result, the amount of correspondence from me to Tom Hall is both plentiful and regular. My duties as head of recruitment and hiring require that I be intimately aware of the number of new hires and the breakdown of those new hires that are (as we say in-house) certifiable. This is a crucial issue for me because failure to hire enough applicants or failure to have enough CLIs to cover the courtrooms creates a tremendous increase in workloads for all of our prosecutors and a staffing nightmare for me. Although I recognize that the rules governing this program were not designed to assist in staffing governmental offices (such as State Attorney's Office and Public Defender Offices) we all recognize that creation of law school practice programs help achieve several stated purposes of Rule 11, which are to: provide competent legal services and to encourage more clinical instruction in trial work. ATTRACTING A DIVERSE WORK FORCE As you may be aware, our office is the 4th largest prosecutor s office in the nation. We participate in various minority job fairs and conduct on-campus interviews at more than 30 different law schools throughout the United States and Puerto Rico. Students at law schools where we do not conduct interviews are allowed to sign up for interviews at area law schools where we do. Accordingly, the number of schools represented in the applicants we interview is larger than total number of schools where we conduct interviews. Why is this relevant? Our office has a 3-tiered interview process. Over the course of the 2004-2005 academic year, we interviewed hundreds upon hundreds of 3 rd year law students to come up with an August class of fifty-four new hires. The graduates came from twenty-eight (28) different law schools. The tota l number of new hires in our office is larger than the total number of ASAs in several of the other prosecutor s offices located in the this state. (2nd Circuit, 44 ASA positions; 3rd Circuit, 24 ASA positions; 8 th Circuit, 48 ASA positions; 14 th Circuit, 25 ASA positions; and 16 th Circuit, 15 ASA positions.) Forty-four of our new hires qualified as post-graduate CLI s and twenty-eight (28) of them were graduated from non-
Florida law schools. Out of our total of 52 1 persons who took the July 2005 Florida Bar Exam, fourteen (14) of them did not pass. This number, approximately 26% of the hiring class, is higher than the recent percentage failure rate of our first-time bar takers. I am mindful that the passing score has increased and that some of our CLIs missed passing by a point or two. Our new hires who fail the bar include CLIs, non-clis, Florida law school graduates, non-florida law school graduates and demographically, they cross all racial, gender and ethnic lines. The one thing they have in common is they all arrived at our office with massive debt. Their massive debt is greeted with a legislatively approved, starting CLI salary in the amount of $31,992. When they pass the bar, their salary is increased to $38,317. Clearly, they are not working here to get rich. The people we hire are primarily persons who have a desire to give back to the community. They are willing to make great sacrifices and endure financial hardship to achieve that goal. In its present form Rule 11-9 (c) helps them in that regard. The 12-month-long certification period actually affords them somewhat of a safety net. It permits them the opportunity to start receiving a salary within several months of graduation from law school. We select a starting date for employment that is always after the July bar exam has been administered. This is intentionally done to minimize any impact on their preparation for the examination. As they are all required to take certain courses and participate in specific law school programs in order to be eligible for certification, they arrive here with knowledge and skills specific to the tasks they will be performing as prosecutors in our office. They also have the recently acquired refresher courses of criminal rules of procedure and evidence, having just completed studying for and taking the bar. They do not lose those skills if they fail the Florida Bar exam. In fact, by the time they receive their Florida Bar results they have participated in a 5-6 week-long extensive training program that is specifically designed to give them all the tools necessary to fulfill their duties and responsibilities as first year prosecutors in our office. After the training, the CLIs are assigned to either 1) our County Court/DUI/Traffic/Crimes Division; or 2) our County Court/Domestic Violence Unit. Within weeks of being hired, our CLIs are conducting trials on very serious misdemeanor cases DUIs and Domestic violence incidents. They convict some of these defendants at trial, most of whom are represented by members of the Florida Bar who have years of experience. Clearly, our CLIs have the specialized training, education, supervision and skills to be able to perform the job functions of Assistant State Attorneys. The proposed rule change would have two major impacts on this situation. First, early termination of their certification would preclude the CLIs from obtaining invaluable practical experience. As post-graduate CLIs these legal trainees have 12 months to learn how to call the daily arraignment and trial calendars, interview police officers and other witnesses, select juries, conduct bench and jury trials, examine and cross-examine expert witnesses, conduct bond hearings, argue evidentiary motions, conduct hearings, research and write appeals from misdemeanor court, and conduct oral arguments on such appeals. They also learn a great deal about criminal law, discovery rules, and the rules of 1 One person resigned before bar results were released and one person did not graduate until after the Bar exam was administered.
criminal procedure. They receive training on ethics and the particular ethical requirements of prosecutors. Our fourteen CLIs who failed the July 2005 bar exam would lose the benefit of such excellent, practical, hands-on experience if the proposed rule had been in effect when they graduated. The impact of the rule would have de-railed their fledging le gal careers approximately one month after they began. Second, termination of their certification would preclude our office from being able to staff the eighteen (18) county courtrooms in our misdemeanor domestic violence and DUI divisions. The ability to staff our county court division allows us to promote attorneys from our county court level to the four (4) juvenile delinquency courts. The attorneys practicing in our juvenile division are ultimately promoted to our Felony Division, which presently has twenty(20) criminal division circuit courts. Each of our felony court divisions is staffed with a supervisor (Division Chief) and three division prosecutors, A, B and C level. The C level prosecutors are the recent graduates from our Juvenile Division and on average have a caseload of approximately 300 cases, mostly 3 rd degree felonies. The more experienced division prosecutors and specialized unit prosecutors handle the bulk of the homicide, robbery, burglary and sexual battery cases. Our ability to staff the felony courts with prosecutors is directly related to our ability to promote Assistant State Attorneys from the less experienced levels in the office, namely, County Court and Juvenile. Our inability to appropriately staff these units will result (and has resulted) in increased caseloads for all our ASAs in divisions throughout the entire office. This obviously requires that our ASAs put in more hours at work. The extra hours and the excessive workload impact the quality of life for our prosecutors and tend to accelerate their burnout. One of the unfortunate consequences of these combined factors is a high turnover rate. 3 All of these staffing issues will be directly impacted by the proposed change to Rule 11-1.9 (c). I think this will be a significant loss for the citizens of Miami-Dade County and this State. The early termination of their CLI status will only serve to lessen the amount of post graduate clinical experience they will obtain. FINANCIAL IMPLICATIONS FROM ENACTING THE PROPOSED RULE As previously indicted, many of our law school graduates are saddled with debt when they start working in our office. Application of the proposed rule will have devastating financial consequences for many of our CLIs. In connection with accepting the offer to work here twenty-eight of our new hires were required to re-locate. They left the comforts of home, friends and relatives, seeking to start a new life. With the re-location came additional expenses. Failing the bar is a blow in and of itself. Losing your job (and the monthly salary that goes with it) within a month of moving to South Florida, would surely be unbearable. Moreover, many of the applicants would probably not even accept our offer if they knew this was a possible consequence of accepting employment with our office. LAW STUDENTS VERSUS LAW GRADUATES WHO IS BETTER QUALIFIED? 3 To be clear, the majority of ASAs who resign from our office do so because of financial difficulties. They come to this office with an expectation that they will work hard and do so in exchange for paltry salaries. They do not expect that they will have to do the work of two attorneys and to receive the same meager income. There must be an incentive even for those with burning desires to be public servants.
In comparing the proposed rule to the law school practice program for law students several ironies are noted. Firs, law students have not studied for the bar, taken the bar, nor completed their law school education. Yet, the rules allow them to practice under the supervision of a Florida lawyer. Under the proposed rule, a post-graduate CLI who has more legal education than the student, has graduated from law school, has successfully completed a law school practice program, and has studied for the Bar would no longer be able to practice under the supervision of a Florida lawyer. Clearly, the law student is not more qualified than a post-graduate CLI who failed the bar exam to provide competent legal services. However, one of the consequences of the rule change is that the post-graduate CLI will have his certification terminated sooner than the expiration of the 12-month period. Some would argue tha t post-graduate CLIs are treated differently than other applicants who have not yet passed the Florida Bar. They would be correct. This Court also recognizes that they are different by virtue of the fact that they have completed clinical programs and received specialized training in this area of practice. It is because they have received this training and experience that this Court allows them to represent clients pursuant to Chapter 11. The CLIs who fail the bar are not doing anything to harm the public. They are truly helping an overburdened criminal justice system perform more efficiently. The fact that they missed the bar by a few points does not deprive them of the knowledge, training, and experience they have received. They should be allowed to practice for the entire 12- month period before their certification expires. Most of them will pass on the second try. The experience they will have gained in the interim will be invaluable. Many of our state s prosecutors choose to work in these offices and represent the State of Florida because of a desire to help protect society. We want to give back to our communities. Most of us served as interns in law school and got bitten by the trial bug. Our lot was to be in a courtroom trying cases. As I prepared this letter I recalled my internship in the appellate division of the Public Defender s Office, which I participated in while I was attending the University of Miami Law School. After graduation, I was hired by the State Attorney's Office with approximately 45 other new-hires. I was one of a handful who was immediately assigned to the Felony Division. I had never tried a case in court. My first trial as a lawyer (which occurred shortly after I passed the bar in September of 1982) was a trafficking in Quaaludes case against a defendant who was a passenger in someone else s car. The driver had been acquitted in an earlier trial. At trial the jury found the defendant guilty as charged. I am certain that I was able to achieve that result, in part, due to the knowledge, training and experience I had received during my internship. If I had failed the bar, I still might have won the case because I still possessed the same skills. As stated in Rule 11-1.1, the bench and bar are primarily responsible for providing competent legal services for all persons. To me, all persons also includes the State of Florida. Our charging documents, our Informations and Indictments, all indicate that crimes are committed against the peace and dignity of the State of Florida. As prosecutors and as public servants we represent the State of Florida and its people. This state deserves competent legal services. One way to assist in providing these competent legal services is to leave Rule 11-1.9 (c) in its present form. The result will be an office with prosecutors who are more knowledgeable and more experienced. These results will inure to the benefit of the bench, the bar and the residents of this great state.
INITIAL CLEARANCE LETTER I am aware that the Florida Prosecuting Attorneys Association has submitted extensive comments in objection to Rule 11-1.3 (a), which will require an initial clearance letter as to character and fitness from the Florida Board of Bar Examiners. I join in those comments and adopt them herein. I pray that if this Court decides to hear oral argument on the proposed amendments to these rules that I be allowed to speak. Respectfully submitted, KATHERINE FERNANDEZ RUNDLE STATE ATTORNEY By: Chief Assistant State Attorney Florida Bar # 350885 E.R. Graham Building 1350 N.W. 12th Avenue Miami, Florida 33136-2111 (305) 547-0100 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and exact copy of the above comment was served on John F. Harkness, Jr., Executive Director Of the Florida Bar, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 and William P. White III, Chair, Chapter 11 Task Force, 25 North Market Street, Suite 200, Jacksonville, FL 32202-2802, and electronically submitted via e-mail on this 29th day of September, 2005. Chief Assistant State Attorney