Friday, June 15, 2007

Florida Decisions Merit Study

The Florida Supreme Court issued opinions in three cases that address some of the most important issues posed in bar admissions and disciplinary cases. In a disciplinary matter, the court vacated an earlier decision and ordered disbarment in a case where the referee had recommended a three year suspension. The case involved intentional misappropriation and a series of arrests and convictions for possession of cocaine. The court found that disbarment was the only sanction for the misconduct, noting that the lawyer was able to function effectively despite the drug use (the attorney "passed the Florida Bar Examination and handled a complex litigation despite daily cocaine use") and was able to distinguish right from wrong. Thus, the drug abuse was not treated as a mitigating factor. The court also ordered that the lawyer pay the bar's costs. A dissent thought the costs should not be ordered as the accused lawyer had fully cooperated with the disciplinary process and was not responsible for causing rehearing of the case.

Two bar admission cases involved applications from previously admitted and sanctioned lawyers. One was admitted on a conditional basis with three years probation. He had resigned in 1997 while facing a wide array of charges relating to fitness to practice, including criminal conduct and misappropriation. He also practiced law in violation of a suspension order, failed to pay taxes for nine years and had unsatisfied judgments. He was a regular cocaine user beginning in 1980 and later became addicted to heroin while in law school. He had been sober since 1997 and had impressive character testimony. The court treated his recovery as a basis for conditional admission with supervision for three years. A dissent rejected the idea of treating a disbarred lawyer in the same light as a first time applicant and would hold that conditional admission should only be allowed for new applicants.

Admission was denied to another lawyer who had resigned while facing disciplinary charges. He had  misappropriated client funds "to finance a lifestyle beyond his means- a large house in an exclusive Miami neighborhood, a very expensive car, vacations whenever he wanted a break, and buying anything and everything he wanted." He had been convicted of felony theft. He borrowed from a trust fund established for the disabled son of his aunt and discharged the debt in bankruptcy. The victims and the tax man remain unpaid. The court rejected the suggestion that readmission would facilitate repayment of the victims and was thus appropriate.

How should addiction be treated in bar regulation? Should illegal drug use mitigate sanction? Should negligent misconduct be subject to significantly lesser sanction than intentional violations? How does addiction impact on intent determinations? Should a lawyer be required to make restitution before getting a suspended license back? Should an accused lawyer bear the costs of prosecution? Florida appears to treat addiction as mitigation only if the lawyer cannot otherwise function.  This trio of decisions from yesterday gives insight into these and other important policy questions.(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2007/06/florida_report.html

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