IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR RE: CHAPTER 11 TASK FORCE /

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1 IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR RE: CHAPTER 11 TASK FORCE / Case Number SC COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION, INC., OPPOSING PROPOSED CHANGES TO RULE 11 OF THE RULES REGULATING THE FLORIDA BAR The Florida Public Defender Association, Inc., (FPDA) submits the following comments in opposition to the proposed changes to Rule 11 of the Rules Regulating the Florida Bar. The FPDA consists of the twenty elected public defenders, hundreds of assistant public defenders, and support staff. The FPDA is deeply concerned that the proposed changes to rule 11 will diminish the ability of public defenders to recruit law school interns and employ certified graduates to work in public defenders offices. Furthermore, we believe that the proposed changes to rule 11 will hinder the public defenders ability to provide indigent defendants with their constitutional right to counsel as guaranteed by Gideon v. Wainwright, 372 U.S. 335 (963); Argersinger v. Hamlin, 407 U.S. 25 (1972); and In re Gault, 387 U.S. 1 (1967).

2 I. THE FPDA OPPOSES THE PROPOSAL THAT CERTIFICATION PURSUANT TO RULE 11 WOULD TERMINATE UPON FAILURE OF ANY PORTION OF THE FLORIDA BAR EXAMINATION. The Florida Bar s Special Board Committee to study the Law School Practice Program (the committee) has proposed amending rule 11 by adding the provision that the failure of any portion of the Florida Bar examination shall terminate law school graduates certification under rule 11. This proposed change would essentially eliminate the public defenders current practice of hiring law school graduates who qualify as certified legal interns (CLI s) under rule 11 before they take the Florida bar examination. If this proposal is adopted, it would make no sense for a public defender to hire a law school graduate as a CLI, only to have to remove him or her from an assigned caseload seven weeks later if the CLI receives a failing grade on a portion of the bar examination. There would be few alternatives to terminating such CLIs from employment; public defenders can only afford those who can handle caseloads and represent clients in court. Thus, if this proposal is adopted, the historical practice of public defenders hiring law school graduates as CLI s will virtually come to an end. 2

3 Additionally, there is every reason to believe that once law students realize that public defenders find their CLI qualifications to be of little practical usefulness at least as they apply to being hired by a public defender as a CLI after graduation - law students will not have the same incentive to enroll in clinical programs in law school. Graduates will certainly not want to accept a job offer as a CLI and incur all of the moving expenses and enter into leases, et cetera, if they know that they likely will be fired seven weeks later if they fail a portion of the bar exam. Thus, the committee s proposal will have the combined detrimental effect of eliminating the practice of public defenders hiring CLI s after graduation and reducing the number of law students who pursue CLI clinical programs in law school. It is difficult to understand the arguments that have persuaded the committee to propose changing rule 11 to mandate termination of certification upon failure of any portion of the bar examination. There are strict safeguards in place to guarantee that CLI s are trained, supervised, and carefully monitored in and out of court when they work for the limited number of entities who qualify under Rule 11. For Public Defender CLI s, Rule requires supervision of all in-court appearances by an 3

4 attorney, written consent of the client, and personal professional responsibility of the supervising attorney. See Rule 11-17(c). Before a law student can be certified, he or she must go through a law school practice program of at least three credits or 200 hours, be familiar with the Rules of Professional Conduct, and be certified by the law school Dean as being of good character, competent legal ability, and adequately trained. Rule Significantly, too, certification can be terminated at any time by the Court. Rule (c). Failure of a portion of the bar examination does not inherently demonstrate an unfitness to continue to practice law, under the strict limitations prescribed by rule 11. The proposal would lead to the possibility that a low academically performing law student with no work or life experience, no law clerking experience, no CLI practice program experience, et cetera, who passes the bar examination by one point is, by that one fact alone, automatically considered to be more fit to practice as an entry level assistant public defender than a hard working, high performing law student who clerked in law school, was a member of law school moot court or mock trial team, participated in a CLI practice program in law school, has a 4

5 strong work ethic and work history but who failed a portion of the bar exam by one point. There are many competent, effective attorneys practicing law today who did not pass all portions of the bar examination on their first attempt. The experience of public defenders is that law school graduates with CLI experience are generally the most desirable, sought-after applicants for entry level positions because they have practical, real-life experience and a genuine knowledge of and interest in the important work that they are pursuing. The same cannot be said of graduates without CLI qualifications. It has also been the experience of public defenders that the graduates hired as CLI s who fail a portion of the bar exam frequently go on to pass the bar exam on their second attempt and are therefore able to continue their competent, supervised representation of indigent clients within the one-year period of certification after graduation. As currently written, rule 11 allows a law school graduate two attempts, at most, to pass all portions of the bar examination. The current rule is fair and reasonable because it allows only a limited time in which a law school graduate is able to practice law under the limitations of rule 11 without passing all portions of the bar 5

6 examination. Moreover, the current rule advances the United States Constitution s protection of the right to counsel by providing public defenders with a valuable means of attracting law school graduates with real life experience representing indigent persons. The FPDA believes that the clinical programs existing today in Florida s law schools are highly effective in training, teaching, and supervising law school interns. All clinical programs operate under strict guidelines of the American Bar Association, and the law school deans are given the authority to withdraw students certifications if their fitness to practice comes into question. Rule (b). It is because of the strength of the clinical programs that students are allowed to represent indigent parties or prosecute for the government in court during the entire year of law school in which the student is certified under rule 11. The FPDA notes that the public defender and state attorney members of the special committee were unanimous in their opposition to the proposal to revoke certification upon failure of the Bar. The majority of the committee members who voted in favor of the proposal were law school faculty and judges who were not in a position to understand the extent of the impact that the proposal would have on 6

7 Public Defender and State Attorney offices. The comments of the public defenders and state attorneys should be given great weight because they are constitutionally responsible- -and professionally and politically responsible--for providing indigent people with competent representation and ensuring that crimes are competently prosecuted. It is difficult to overstate the importance that the current CLI rule has had in attracting qualified law school graduates to apply for employment as assistant public defenders. In considering this rule, the public defenders ask the Supreme Court to consider how difficult it has become for some public defender offices to attract applicants for the position of entry-level assistant public defender. Government lawyers are paid considerably lower salaries than those of entry level attorneys in private practice. In 2005, the starting salary of CLIs in entrylevel assistant public defender positions was $35,000- $38,000. However, the average salary of private associate attorneys fresh out of law school was $45,000 in The Florida Bar News, Jan. 15, 2005 at pg. 5. Graduates of the University of Florida College of Law in 2004 who reported their salaries commanded an average salary of $56,909 and the average salary for graduates starting at private law firms was $69,454. FlaLaw, vol. 8, no. 23, March 7,

8 (Univ. of Florida Fredric G. Levin College of Law Newsletter). The enormous amount of student loan debt straddling most law school graduates has made government lawyer service financially impossible for most gradates. The American Bar Association has reported that 86.4 percent of law students borrowed an average of $77,300 in The Florida Bar News, Sept.15, 2003 at pg 1. With the average monthly student loan payment consuming more than half of an entry level CLI assistant public defender s take-home pay, it is no wonder that 66 percent of thirdyear law students responding to a nationwide on-line survey said that they were not pursuing government attorney employment, and that law school debt and lower salaries were the reasons they were not seeking public interest or government jobs. The Florida Bar News, Jan. 1, There is no relief in sight: legislation which would have provided financial assistance to prosecutors or public defenders with student loans has failed to pass at both the federal and Florida levels in recent years, and it is uncertain that such proposed legislation will ever become law in the future. Although some defender offices may have a sufficient number of applicants, many offices must make a continuous, 8

9 concerted effort to attract applicants for entry-level assistant public defender positions. These efforts include routinely advertising in The Florida Bar News for CLI s and Bar members, as well as posting job announcements at all Florida law schools and even at out-of-state law schools, interviewing on the campuses of all law schools in Florida, and even recruiting at out-of-state law schools and attending public interest job fairs. Despite these persistent efforts, it has only been the existence of rule 11 which has enabled public defenders to fill vacant entrylevel assistant public defender positions in many cases. Thus, if the proposal to change rule 11 to mandate CLI termination upon failing a portion of the bar examination is adopted, some public defenders ability to discharge their duty to provide indigent clients with the legal representation required by the United States Constitution will be substantially diminished. 9

10 II. THE FLORIDA PUBLIC DEFENDER ASSOCIATION, INC., OPPOSES THE PROPOSED REQUIREMENT THAT FLORIDA LAW SCHOOL STUDENTS AND GRADUATES OF OUT-OF-STATE LAW SCHOOLS MUST HAVE MADE APPLICATION FOR ADMISSION TO THE FLORIDA BAR IN ORDER TO PRACTICE PURSUANT TO RULE 11. A majority of the members of the committee also voted in favor of amending rule 11 to require that Florida law school students and graduates of out-of-state law schools must have made application for admission to The Florida Bar in order to practice under rule 11. This proposal will prevent many Florida law school students from participating in clinical programs simply because they are unable to pay the fee required to submit the Bar application. Although the Bar application is only $75 if submitted within 180 days of beginning law school, the fee increases in stages to a high of $875 if the student submits his or her initial application one year or less from graduation (see appendice 1, fee schedule). The fee is $500 if the application is submitted more than 250 days from beginning law school and more than one year from graduation. Most law students don t even consider clinical programs until their second year of law school because the requisite courses that must be taken to participate in clinics are not completed until then, and because students are focused on completing the 10

11 first year of law school and not contemplating their future course of study. Additionally, at some law schools, the number of students who wish to participate in clinical programs exceeds the number of clinical positions available and these students are only able to participate in a clinical program their last semester of law school if they are able to participate at all. The result is that most students are faced with paying either $500 or $875 by the time they decide that they might want to, or learn that they are able to, participate in a law school clinical program. When faced with paying this Bar application fee, which most students seem to pay during their last semester of school or after gradation, the law student who is already deep in student loan debt or who is receiving a financial aid scholarship, will almost certainly forego participation in a law school clinical program solely for financial reasons. This is likely to have a disparate, detrimental impact on students from families without substantial financial means. It may be that this would create a disparate impact on black and Hispanic law students. Law school clinical programs should not be more available to wealthy law students than they are to poor students. The proposal to require application for admission to The Florida Bar should be rejected because it will 11

12 significantly reduce the number of students who would be financially able to assist indigent persons in criminal and civil law school clinical programs. The proposal to require application for admission to The Florida Bar before being eligible to be certified under rule 11 raises particularly troubling questions pertaining to the Florida Agricultural and Mechanical University (FAMU) College of Law. The FAMU College of Law is the only law school in Florida which requires the completion of a clinical program for graduation.(see appendice 2, FAMU College of Law listing of required and elective courses). Additionally, undersigned counsel Blaise Trettis has verified through conversations with FAMU law school faculty and students that completion of a clinical program is a graduation requirement. Taken together, the proposed change to rule 11 and FAMU College of Law s requirement that a student must complete a clinical program to graduate has the effect of requiring a FAMU College of Law student to apply for admission to The Florida Bar while in law school in order to graduate. This of course would be untenable for FAMU College of Law students who have no interest in practicing law in Florida. Even for the FAMU College of Law students who plan on practicing law in Florida, if the student could not afford to pay the Bar 12

13 application fee while in law school, he or she would not be able to enroll in and complete the required clinical program and therefore would be unable to graduate. The FPDA submits that the problems the proposed rule would cause at the FAMU College of Law alone militate against the adoption of the proposal to require application for admission to the Florida Bar as a condition of practicing law pursuant to rule 11. The proposal to require application for admission to The Florida Bar as a condition-precedent to practicing pursuant to rule 11 will also negatively affect non-florida residents who attend or might consider attending law school in Florida. If these non-florida residents plan on returning to their home state after graduating law school and practicing law there, it would be unrealistic to expect that they would go through the expensive, arduous task of applying for membership to The Florida Bar for the sole reason of being qualified to participate in a clinical program. It is likely that very few, if any, non-florida law students would even consider participating in a clinical program, which would further reduce the number of law students willing to represent indigent criminal defendants in the public defenders offices and poor persons in civil cases through the legal aid clinics. The 13

14 proposed rule would thus make Florida law schools less attractive to non-florida residents who do not plan on practicing law in Florida. These non-floridian prospective law students will be more inclined to attend a law school in a state other than Florida where participation in a clinical program does not require them to go through an expensive, arduous Bar application process that is not part of their future plans. It may be that the proposal to require application for admission to The Florida Bar was believed by a majority of the committee to be necessary so that the Florida Board of Bar Examiners would have the background information necessary to either issue or not issue the proposed letter of initial clearance as to character and fitness. The FPDA submits that the Florida Board of Bar Examiners should be able to decide whether or not to issue a letter of initial clearance as to character and fitness without having considered an application for membership to The Florida Bar. In fact, in the years that have passed since the problem cases arose which led to the formation of the committee, the Supreme Court has enacted internal procedures which have allowed it to quickly make character and fitness determinations of law school students and graduates applying for certification pursuant to rule 11 14

15 without relying on an application for admission to The Florida Bar. The Court has changed its internal procedures to require CLI applicants to disclose in writing whether or not there is anything in their background which might reflect adversely on their character, and if there exists such an incident or incidents, the applicant must attach a statement for the Court which includes the specifics of each incident with dates and disposition, if applicable. The disclosures must be verified by the CLI applicant to be true and accurate. Additionally, the new procedures include the requirement that the supervising attorney pursuant to rule 11 be informed of the CLI applicant s disclosure of any incident, and the supervising attorney must specifically agree in writing to be the supervising attorney. The FPDA believes that the Court s revised CLI application procedures have effectively addressed the problematic cases that led to the formation of the rule 11 committee initially. There now is no need for a CLI applicant to have to undergo the additional process of applying for Bar membership. If necessary, the current internal procedures of the Court could be made even more stringent by specifically requiring the CLI applicant to divulge all prior arrests and any pending criminal 15

16 prosecution as well as requiring specific disclosure of any previous and pending academic integrity cases. The proposed letter of initial clearance as to character and fitness could be particularly problematic for students at FAMU College of Law because of that law school s graduation requirement of clinical program completion. For example, a FAMU College of Law student who has a pending or prior prosecution for a crime which would result in the Florida Board of Bar Examiners not issuing a letter of initial clearance as to character and fitness but which would not result in a denial of admission to The Florida Bar after the bar exam is passed would not be able to complete a clinical program because of the non-issuance of the letter of initial clearance, as such students would not be able to graduate under FAMU s current structure. Should the Court decide to change rule 11 by requiring a letter of initial clearance as to character and fitness but not adopt the proposal to require application for admission to The Florida Bar, it will be important for the Florida Board of Bar Examiners to reach a decision as quickly as the Court has in recent years. For rule 11 to be an effective way to promoting law school clinical programs and staffing public defender offices with graduate CLI s, the decision whether or not to issue the letter of 16

17 initial clearance as to character and fitness must be made within two weeks from when the CLI application is submitted at least in those cases in which the applicant does not have anything in his or her background that reflects adversely on his or her character. Because the Court has adopted procedures which have proven to be fast and effective, the FPDA would urge the Court to keep in-house the function of CLI application consideration and not adopt the proposed change to rule 11 which would have the Florida Board of Bar Examiners decide whether or not to issue a letter of initial clearance as to character and fitness. If the Court decides to change rule 11 to require a letter of initial clearance as to character and fitness from the Florida Board of Bar Examiners, the FPDA would respectfully request that the Court be willing to quickly reassume the entire CLI application process if the Florida Board of Bar Examiners takes more than two weeks to issue the letter of initial clearance at least in those cases where the applicant has disclosed nothing in his or her background which may reflect adversely on their character. 17

18 III. CONCLUSION Rule 11 exists as a means of providing assistance to lawyers who represent clients unable to pay for [competent legal] services and to encourage law schools to provide clinical instruction in trial work. Rule The FPDA believes that the proposed rule change will seriously undermine these objectives. For the reasons detailed above, the FPDA respectfully urges the Court to reject the proposal which mandates CLI termination upon failure of any portion of the Florida bar examination and to reject the proposal which would require a CLI applicant to have made application for admission to The Florida Bar. Respectfully submitted, The Honorable Howard H. Skip Babb, Jr. Public Defender for the Fifth Judicial Circuit President, Florida Public Defenders Association, Inc. By: R. Blaise Trettis Executive Assistant Public Defender Eighteenth Judicial Circuit Florida Bar Number

19 2725 Judge Fran Jamieson Way Building E, Second Floor Viera, FL CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was sent by U.S. mail delivery to John F. Harkness, Jr., Executive Director of The Florida Bar, 651 E. Jefferson St., Tallahassee, FL , and to the Honorable William P. White, Chair of the Chapter 11 Task Force, 25 N. Market St., Suite 200, Jacksonville, FL this day of September, R. Blaise Trettis Executive Assistant Public Defender Eighteenth Judicial Circuit Florida Bar Number Judge Fran Jamieson Way Building E, Second Floor Viera, FL

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