FLORIDA BOARD OF BAR EXAMINERS RE: J.C.B.
No. 84,542
SUPREME COURT OF FLORIDA
655 So. 2d 79;
1995 Fla. LEXIS 534;
20 Fla. L. Weekly S 165
April 13, 1995, Decided
PRIOR HISTORY:
[**1] Original Proceeding - Florida Board of Bar Examiners.
COUNSEL: Arno Kutner of Kutner, Rubinoff
& Bush, P.A., Miami, Florida, for Petitioner.
L. Kinder Cannon III, Chair, Florida Board of Bar Examiners; Kathryn E. Ressel,
Executive Director; and Thomas A. Pobjecky, General Counsel and Robert G.
Blythe, Assistant General Counsel, Tallahassee, Florida for Respondent.
JUDGES: GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ.,
concur.
OPINION:
[*79] PER CURIAM.
This is a petition for review of a
recommendation by the Florida Board of Bar Examiners that J.C.B. not be admitted to The
Florida Bar. We have jurisdiction pursuant to article V, section 15 of the
Florida Constitution.
We deny J.C.B.'s petition because we find that he has not shown
rehabilitation sufficient to warrant his admission.
J.C.B. was admitted to The Florida Bar in 1955. This Court
disbarred him in 1986 for personal use of a client's legal funds and neglect of a
legal matter. He applied for
readmission to the Bar in 1992. He has passed the Multistate Professional Responsibility
Examination and both parts of
[**2] the General Bar Examination.
Because of J.C.B.'s
disciplinary history and information he provided on his Bar application, the Florida Board
of Bar Examiners held an
investigative hearing into his case in June 1993. Based on that hearing, the Board prepared
specifications and held a
formal hearing in May 1994. Finding the five
specifications proven, the Board
recommended that J.C.B. be
denied admission to the Bar.
The first
specification concerns J.C.B.'s
disbarment. This Court
disbarred J.C.B.
[*80] based on three instances in which he received money on behalf of a client, but
failed to forward the money to the client. Also, in another case, J.C.B.
neglected a
legal matter for four years, then refused to turn over files when the client hired a new
lawyer.
Specification 2(A) concerns J.C.B.'s arrest for second-degree grand theft in 1985 based on
his failure to deliver funds to a client. The charges were
dropped after J.C.B. transferred ownership of his Jaguar to the client, who then did
not show up for trial. The Board found that the underlying
misconduct of this
specification and
Specification 1 were
disqualifying for
admission.
Specification 2(B) concerns a contempt of court charge
[**3] filed in 1973 and later
dropped. J.C.B. said he thought the charge stemmed from his failure to appear in court
on behalf of a client.
The third
specification concerns financial irresponsibility to creditors. J.C.B. has
outstanding judgments from the mid-1980s to accountants, a foundation, a bank, and a
doctor, and Internal Revenue Service tax liens levied on bank accounts,
including one for more than $ 27,000. J.C.B. admitted the specific allegations,
but denied the general allegation that he lacked
financial responsibility.
In evaluating J.C.B.'s
financial responsibility, the Board considered that even though J.C.B. had no income from 1985 to 1986,
he bought a new Mustang convertible when there were less expensive cars on the
lot; J.C.B. has paid more recent obligations, but has left the mid-1980s
judgments unsatisfied; and he works full-time for a lawyer for $ 150 a week
when he testified that he could earn $ 40,000 a year as a law clerk.
The fourth
specification concerns the suspension of J.C.B.'s driver's
license for failure to pay a speeding ticket. The Board found that J.C.B. had, at the
very least, constructive notice of the suspension, but failed to report this on
his Bar
[**4] application.
Specification 5 concerns J.C.B.'s characterization in his Bar application of why he was
disbarred:
During this time frame, through my carelessness and gross negligence [a
client's] money held in trust by me was used for matters unrelated to his case.
J.C.B. said at his
investigative hearing that he made a mistake and negligently took the money, but he did not
steal. The Board found that J.C.B.'s application and testimony at the
investigative hearing were false,
misleading, or lacking in
candor. The
referee in his Bar discipline case specifically found J.C.B. guilty of violating
disciplinary rules involving dishonesty, fraud, deceit, or misrepresentation. J.C.B. also
denied during his
formal hearing that he intentionally stole from his clients. The Board said it was bound by
the
referee's and this Court's finding in 1986 that J.C.B. personally used a client's funds.
The Board found that
Specifications 2, 3, 4, and 5, when viewed collectively, were
disqualifying for admission to the Bar. The Board was concerned that five character
witnesses who
recommended J.C.B. for admission during the
formal hearing did not know why he was
disbarred. In addition, the
[**5] Board did not find specific evidence of
rehabilitation to overcome the
seriousness of the proven
specifications. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Article III, section 4.e. of the Rules Relating to Admissions to the Bar
requires an applicant such as J.C.B. to show by clear and convincing evidence
rehabilitation
including
occupation, religion, community, or civic service. J.C.B. testified that he was too old to
participate in some types of community service and that he was too busy
working.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Because of the
seriousness of J.C.B.'s past
misconduct, concerns about his apparent
financial responsibility, his apparent unwillingness to accept full responsibility for conversion of
clients' funds to his
own use, and insufficient evidence of
rehabilitation, the Board
recommended denying J.C.B. admission to the Bar.
In seeking
readmission, J.C.B. bears the heavy burden of establishing
rehabilitation. See
Florida Bar re Janssen, 643 So. 2d 1065, 1066 (Fla. 1994);
Florida Bar re Jahn, 559 So. 2d 1089, 1090 (Fla. 1990). To determine whether
[**6] J.C.B. should be
readmitted, we may review the factual underpinnings
[*81] of the Board's
recommendation by conducting an independent review of the record.
Florida Bd. of Bar Examiners re R.D.I., 581 So. 2d 27, 29 (Fla. 1991). Having done so, we agree with the Board that J.C.B. has not shown sufficient
rehabilitation and should not be
readmitted.
Against the weight of the record, J.C.B. continues to maintain that he was
merely
"grossly negligent" when he used client's funds for his
own use. J.C.B. argues that he is being penalized for consistently disagreeing with a
legal holding. He says there is no competent, substantial evidence that he is
unwilling or unable to acknowledge his prior
wrongdoing and that he did not give testimony that was false,
misleading, or lacking in candor in his sworn statement in his application and his sworn
testimony at the
investigative hearing. J.C.B. pleaded guilty to the charges before the
referee, did not contest the sanction of
disbarment, and has steadfastly maintained that he did not intend the ethical violations.
But the
referee and this Court have found J.C.B.'s behavior that led to his
disbarment to be intentional and not the result of negligence.
[**7]
We find J.C.B.'s case distinguishable from
Florida Board of Bar Examiners re L.K.D, 397 So. 2d 673 (Fla. 1981). In L.K.D., the applicant maintained her
innocence of a shoplifting charge. The Court found that her acquittal justified her
maintaining
innocence
"even though the Board might have thought it advantageous to make a showing of
repentance."
Id. at 676. In the instant case, J.C.B. was sanctioned for intentional
wrongdoing, yet he maintains that this
wrongdoing was merely negligent.
In addition, J.C.B. has not attempted to repay longstanding debts. He contends
that the Board found him
financially
irresponsible because he has not
declared bankruptcy, even though this Court has
denied admission to applicants who have
declared bankruptcy to discharge their financial obligations.
First, the Board did not find J.C.B.
financially
irresponsible because he has not
declared bankruptcy. The Board found him
financially
irresponsible because he failed to attempt to satisfy his
outstanding debts, and he continued to work for $ 150
per week when he had other, higher-paying job opportunities.
Second, bankruptcy does not necessarily bar admission. In
Florida Board of Bar Examiners
[**8] re G.W.L., 364 So. 2d 454 (Fla. 1978), this Court refused to admit an applicant because he filed bankruptcy
precipitously. The Court found no unusual misfortune or financial catastrophe,
but determined that G.W.L. chose to file bankruptcy in an attempt to avoid
routine debts such as student loans. This Court specifically held:
To foreclose any misconstruction of this decision, we must emphasize that this
ruling should not be interpreted to approve any general principle concerning
bankruptcies nor to hold that the securing of a discharge in bankruptcy is an
act inherently requiring the denial of admission to the bar. We further do not
wish this decision to be construed to hold that any comparable exercise of a
clear legal right will necessarily imperil bar admission.
Id. at 460. The Court
subsequently directed the admission of another applicant who had
declared bankruptcy.
Florida Bd. of Bar Examiners re Groot, 365 So. 2d 164 (Fla. 1978). The Court found that Groot's declaration of bankruptcy was justified: He was
the father and custodian of two children from a recently terminated marriage;
his expenses included some of those of his former wife; and he exhausted
[**9] his personal resources and received loans from family members until he found a
job.
Id. at 168.
In two other
specifications, J.C.B. focuses on discrepancies in the Board's findings and conclusions of
law. In doing so, he misses the forest for the trees. Whether J.C.B.'s driver's
license was suspended on February 28, 1991 (the Board's position), or April 4, 1991
(J.C.B.'s position), the fact remains that J.C.B.'s
license was suspended well before he filed his Bar application in June 1992. And
whether his contempt charge was a
felony, a misdemeanor, or a crime at all is not relevant to the issue that the
charge was brought--and later
dropped--for his failure to appear in court on behalf of a client.
[*82] Also critical to our decision is J.C.B.'s failure to show sufficient
rehabilitation. An applicant such as J.C.B. who affirmatively asserts
rehabilitation from prior conduct bearing adversely on character and fitness for admission
must show
rehabilitation by
such things as a person's
occupation, religion, community or civic service. Merely showing that an individual is now
living as and doing those things he or she should have done throughout life,
although necessary to prove
[**10]
rehabilitation, does not prove that the individual has undertaken a useful and constructive
place in society. The requirement of positive action is appropriate for
applicants for admission to the bar because service to one's community is an
implied obligation of members of the bar.
Fla. Bar Admiss. R., art. III,
§
4.e.(7). Before his
disbarment, J.C.B. served in the military, performed
pro bono legal work, coached Little League sports, and was involved in Cub Scouts. Our
focus, however, is on his activities since his
disbarment. Although J.C.B. has held a job and attended church, he has not demonstrated
the community involvement that article III, section 4.e.(7) requires. J.C.B.
testified that he is too old for some community activities, apparently
referring to the military, Little League sports, and Cub Scouts. Even if that
is true, there are other types of community activities in which J.C.B. could
become involved. J.C.B.'s promise to perform
pro bono work if
readmitted is not enough to show
rehabilitation now. In addition, we share the Board's concern that most of J.C.B.'s character
witnesses did not know why he was
disbarred.
The
misconduct for which J.C.B. was
disbarred
[**11] is serious, but does not, as J.C.B.
contends, erect a permanent bar to
readmission. Upon a showing of
rehabilitation, J.C.B. may reapply for admission after two years from the date of the Board's
adverse
recommendation. See
Florida Bd. of Bar Examiners re C.W.G., 617 So. 2d 303, 305 (Fla. 1993).
Accordingly, we deny
readmission to J.C.B. at this time.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ.,
concur.
