IN THE SUPREME COURT OF FLORIDA. Case No. SC

IN THE SUPREME COURT OF FLORIDA Case No. SC 11-2568 Florida Board of Bar Examiners ) Re: Question as to Whether Undocumented ) Immigrants Are Eligible for Admission to ) The Florida Bar ) PAST ABA PRESIDENTS MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF THE APPLICANT AND BRIEF OF THE AMICI Martha W. Barnett Florida Bar. No. 160404 1901 Miller Landing Road Tallahassee, Florida 32312 Phone: (850) 933-5620 Email: Martha.barnett@hklaw.com William Reece Smith, Jr. Florida Bar No. 075807 Carlton Fields Post Office Box 3239 Tampa, Florida 33601 Phone: (813) 223-7000 Email: rsmith@carltonfields.com Stephen N. Zack Florida Bar No. 145215 Boies Schiller & Flexner Miami, Florida 33131 Phone: (305) 539-8400 Email: szack@bsfllp.com AMICI CURIAE IN SUPPORT OF THE RESPONDENT

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES...... iii MOTION FOR LEAVE TO FILE ATTACHED AMICUS BRIEF. 1 I. Statement of Interest by Past ABA Presidents... 1 Martha W. Barnett.. 1 William Reece Smith, Jr... 2 Stephen N. Zack. 2 II. How Amici Can Assist the Court in Disposition of the Case. 3 III. Position of the Parties. 3 PAST ABA PRESIDENTS AMICUS CURIAE BRIEF IN SUPPORT OF THE BAR APPLICANT S RESPONSE TO THE PETITION OF THE FLORIDA BOARD OF BAR EXAMINERS... 3 SUMMARY OF THE ARGUMENT 3 ARGUMENT: THE COURT SHOULD REJECT THE BOARD S PETITION AND ORDER THE BOARD TO ADMIT THE APPLICANT, WHO HAS COMPLIED WITH ALL VALID RULES 4 A. The Policy Considerations in This Case Are Similar to Those Supporting the DREAM Act, Which Has Been Endorsed by the ABA 4 B. The Bar Misses an Opportunity to Add Lawyers of Competence and Character if All Undocumented Applicants Are Automatically Denied Admission. 6 i

C. The Applicant Is in No Different Position From That of a Foreign Student Who Comes to the United States to Study and Passes the Bar Exam.. 7 CONCLUSION. 7 CERTIFICATE OF SERVICE AND FONT SIZE... 8 EXHIBIT A... 9 ii

TABLE OF AUTHORITIES Plyler v. Doe 457 U.S. 202 (1982) 6 Rules of the Supreme Court Relating to Admissions to the Bar, R. 1-16. 4 iii

MOTION FOR LEAVE TO FILE ATTACHED AMICUS BRIEF Martha W. Barnett, William Reece Smith, Jr., and Stephen N. Zack, all members of The Florida Bar and past Presidents of the American Bar Association, move the Court for leave to file the attached brief. I. Statement of Interest by Past ABA Presidents. Martha W. Barnett, William Reece Smith, Jr., and Stephen N. Zack ( Amici ), all members of The Florida Bar and former Presidents of the American Bar Association ( ABA ), submit this brief as amici curiae in support of the Applicant, José Manuel Godínez-Samperio ( Applicant ). 1 The Amici have the following specific experience relevant to the issues in this case: Martha W. Barnett: Ms. Barnett served as the Chair of the Florida Commission on Ethics from 1986 to 1987. She was the first female Chair of the ABA House of Delegates. From 1997 to 1998, she served as a member of the Florida Constitution Revision Commission. From 2000 to 2001, she was the second female President of the ABA. She has chaired the ABA Section on Individual Rights and Responsibilities and she now serves on this Court s Florida 1 The Amici seek to file their amicus brief as individuals; they are not acting on behalf of the ABA, The Florida Bar, or any other organized bar. 1

Innocence Commission. Finally, Ms. Barnett has been a Council member of the ABA Section of Legal Education and Admissions to the Bar. William Reece Smith, Jr.: Mr. Smith has served as President of The Florida Bar (1972-1973), the ABA (1980-1981), the International Bar Association (1988-1990), the University of South Florida (1976-1977), and the American Bar Foundation (1990-1991). He also chaired the National Conference of Bar Presidents (1978-1979). Mr. Smith is an expert in professional responsibility, and has been a Distinguished Professional Lecturer at Stetson University College of Law since 1991. Stephen N. Zack: Mr. Zack escaped Castro s Cuba at age 14 with his parents and received his education in Florida. He has been President of The Florida Bar (1989-90), Chair of the ABA House of Delegates (2004-06), and President of the ABA (2010-11). Mr. Zack has been a member of the Florida Constitution Revision Commission (1997-98) and served as Chair of the Florida Commission on Ethics (1992-93). Finally, Mr. Zack spoke at the Applicant s graduation, urging the Florida State University College of Law Class of 2011 to offer pro bono services for disenfranchised groups: a charge that the Applicant who won a Florida Bar Foundation public service fellowship during law school cannot follow without admission to the Bar. 2

II. How Amici Can Assist the Court in Disposition of the Case. The Amici have extensive leadership experience in the organized bar and with ethics issues. Mr. Smith has taught professional responsibility for many years. Ms. Barnett has served on the Council of the ABA Section on Legal Education and Admissions to the Bar, and both she and Mr. Zack have chaired the Florida Commission on Ethics. III. Position of the Parties. The Applicant has consented to the Amici filing a brief in this case, and the Board Attorney of Record on this case has indicated that the Board neither consents nor objects to the filing of the amicus brief. PAST ABA PRESIDENTS AMICUS CURIAE BRIEF IN SUPPORT OF THE BAR APPLICANT S RESPONSE TO THE PETITION OF THE FLORIDA BOARD OF BAR EXAMINERS SUMMARY OF THE ARGUMENT Admission to The Florida Bar will always be an individual determination; thus, the Florida Supreme Court should not approve a blanket policy that would deny admission to applicants who have passed the Florida bar examination and who have good moral character. Here, the Applicant, Jose Godinez-Samperio ( the Applicant ), has demonstrated his competence by completing his education, earning distinction at every educational level, and passing the bar examination. The Florida Board of 3

Bar Examiners ( Board ) has found no character issues against the Applicant, who has demonstrated both honesty and candor by disclosing his situation as an undocumented immigrant at every opportunity, from before the time he attended law school. Therefore, the Florida Supreme Court should decline jurisdiction and order the Florida Board of Bar Examiners ( the Board ) to admit the Applicant. ARGUMENT THE COURT SHOULD REJECT THE BOARD S PETITION AND ORDER THE BOARD TO ADMIT THE APPLICANT, WHO HAS COMPLIED WITH ALL VALID RULES A. The Policy Considerations in This Case Are Similar to Those Supporting the DREAM Act, Which Has Been Endorsed by the ABA. As former Presidents of the American Bar Association, the Amici submit that a policy allowing undocumented immigrants who came to this country as children to become attorneys is proper so long as applicants have demonstrated competence and good character. Under the Applicant s circumstances, lack of immigration status does not raise character issues and his record demonstrates competence. Pursuant to the rules governing admission to the Bar, the board will recommend the admission of every applicant who has complied with all the requirements of the applicable rules, who has attained passing scores on the examination, and who has demonstrated the requisite character and fitness for admission. Fla. Bar Admiss. R. 1-16 (emphasis added). Here, the Applicant 4

acted in reliance on the Board allowing him to sit for the bar examination and apply for admission to the Bar; he passed the exam; and the Board has not alleged any misconduct on his part. 2 Therefore, this Court should deny jurisdiction and order the Board to admit the Applicant. The Amici submit that the policy issues before the Court are no different from those that convinced the ABA to support the Development, Relief, and Education for Alien Minors Act ( DREAM Act ) that has been before Congress for several years. After the ABA voted to support the legislation, then-president Zack conveyed the organization s strong backing in a letter to U.S. Senators: The DREAM Act would provide a path to legal residence and citizenship for certain deserving undocumented immigrant youth. It would permit eligible students to obtain conditional legal status if they: entered the U.S. before the age of 16; have been present in the country for at least five years; have graduated from high school or received a GED; and can demonstrate good moral character. These individuals may then become eligible for legal permanent residence if they attend college or serve honorably in the U.S. military. 3 2 If the Board had alleged that lack of immigration status is misconduct, it would have no grounds. First, such an allegation should be addressed at the Board level, not in the Florida Supreme Court. Second, the Board must take into account the Applicant s age at the time of the alleged misconduct, as well the seriousness of the conduct, factors underlying it, its recency, and the Applicant s candor in the admissions process (among other factors). Here, the Applicant was nine years old when he overstayed his visa, sixteen years ago. The Applicant has been candid about his immigration status throughout the admissions process. 3 Mr. Zack s letter can be found on the ABA web site at http://www.abanow.org/ 2010/12/aba-urges-congress-to-pass-the-dream-act/. 5

The DREAM Act is consistent with and promotes American ideals of fairness and opportunity. Children should not be punished for the acts of their parents. Most of the young people who would be eligible to pursue legal status under the DREAM Act were brought to this country as children by family members, through no choice of their own. They have grown up here, gone to school, been active in their communities and, for many, it is the only home they have ever known. The DREAM Act will give these young people the opportunity to earn legal status and become fully contributing members of our society. The reasoning of Mr. Zack s letter applies to the policy under consideration by this Court. The Board cannot grant the Applicant citizenship, but it can grant him the credentials that he has earned. B. The Bar Misses an Opportunity to Add Lawyers of Competence and Character if All Undocumented Applicants Are Automatically Denied Admission. The U. S. Constitution requires Florida to educate undocumented students through twelfth grade. Plyler v. Doe, 457 U.S. 202 (1982). But few of them, no matter how promising they may be, can go on to college, because they are ineligible for federal loans, Florida Bright Futures scholarships, and federal financial aid. Therefore, only a handful of undocumented students attend college and then earn law degrees. Those who graduate from law school have overcome substantial obstacles language barriers, cultural differences, inadequate finances. Imposing a blanket ban on their admission to the Bar would be a waste of exceptional talent for our profession. 6

C. The Applicant Is in No Different Position From That of a Foreign Student Who Comes to the United States to Study and Passes the Bar Exam. The issue of the Applicant s ability to practice law in Florida or in other states is not an issue within the Board s jurisdiction or competence. It is entirely legal for someone to come from abroad and enter law school in the United States. Upon graduation, a foreign student may take the Florida bar exam and, after passing and demonstrating good character, be admitted to The Florida Bar even if not intending to practice law in Florida, and even if unable to get approval from immigration authorities to remain in the country. Yet here, the Board has adopted a policy that has never been authorized by the Court and is beyond the scope of the Board s authority. CONCLUSION This Court should deny jurisdiction, ordering the Florida Board of Bar Examiners to admit the Applicant. In the alternative, the Court should adopt a policy of allowing otherwise-qualified undocumented applicants to become attorneys in Florida. 7

Respectfully submitted, /s/ Martha W. Barnett /s/ Martha W. Barnett for /s/ Martha W. Barnett for Martha W. Barnett William Reece Smith, Jr. Stephen N. Zack Florida Bar No. 160404 Florida Bar No. 75807 Florida Bar No. 145215 1901 Miller Landing Road Carlton Fields Boies Schiller & Flexner Tallahassee, FL 32312 Post Office Box 3239 100 SE 2nd Street, #2800 Phone: (850) 933-5620 Tampa, FL 33601 Miami, FL 33131 Martha.barnett@hklaw.com Phone: (813) 223-7000 Phone: (305) 539-8400 rsmith@carltonfields.com szack@bsfllp.com CERTIFICATE OF SERVICE AND FONT SIZE I hereby certify that a copy of the foregoing Amicus Brief was sent by U.S. Mail on this 19th day of March, 2012, to: Thomas Arthur Pobjecky Talbot D Alemberte General Counsel Patsy Palmer Florida Board of Bar Examiners D Alemberte & Palmer, PLLC 1891 Eider Court Post Office Box 10029 Tallahassee, Florida 32329 Tallahassee, Florida 32302-2029 point font. I further certify that this brief has been produced with Times New Roman 14 /s/ Martha W. Barnett Martha W. Barnett Florida Bar No. 160404 1901 Miller Landing Road Tallahassee, Florida 32312 Phone: (850) 933-5620 Email: Martha.barnett@hklaw.com 8

EXHIBIT A December 8, 2010 ABA Urges Congress to Pass the DREAM Act In light of the Development, Relief, and Education for Alien Minors Act (DREAM Act) coming to a vote in Congress, President Stephen N. Zack of the American Bar Association urges Senators and Representatives to vote in favor of the DREAM Act in a letter to Congress. President Zack has an emotional connection this issue because of his personal experience fleeing to the US as a young teen. Below is a copy of the letter that was sent to the Senate. Zack will issue a statement after the vote and is available for interview. December 8, 2010 Dear Senator: On behalf of the American Bar Association and its nearly 400,000 members nationwide, I write to urge you to vote in favor of the Development, Relief, and Education for Alien Minors Act (DREAM Act). The DREAM Act would provide a path to legal residence and citizenship for certain deserving undocumented immigrant youth. It would permit eligible students to obtain conditional legal status if they: entered the U.S. before the age of 16; have been present in the country for at least five years; have graduated from high school or received a GED; and can demonstrate good moral character. These individuals may then become eligible for legal permanent residence if they attend college or serve honorably in the U.S. military. The DREAM Act is consistent with and promotes American ideals of fairness and opportunity. Children should not be punished for the acts of their parents. Most of the young people who would be eligible to pursue legal status under the DREAM Act were brought to this country as children by family members, through no choice of their own. They have grown up here, gone to school, been active in their communities and, for many, it is the only home they have ever known. The DREAM Act will give these young people the opportunity to earn legal status and become fully contributing members of our society. Earn is the key word in this case. The DREAM Act would not automatically grant legal status to anyone. It is narrowly tailored with strict age and residency requirements, and only applies to individuals in the U.S. at the time of enactment. Those who believe they may qualify will have to go through a rigorous application process, including a criminal background check, and will bear the burden of proving by a preponderance of the evidence that they are eligible for conditional legal status. Once granted conditional status, these individuals must complete two years of college or military service and wait for 10 years before pursuing legal permanent resident status. The DREAM Act enjoys broad, bipartisan support from the government and the public. Recent 9

national polls reveal that public support for the DREAM Act cuts across regional and party lines, with up to 70 percent overall support. The bill has been endorsed by a lengthy list of educational institutions and associations, as well as business, civil rights, and religious groups. In addition, the Secretaries of Defense, Education, Labor and Homeland Security have noted that enactment of the DREAM Act has the potential to benefit the American economy and national security. The DREAM Act is a wise economic investment. Most of the students who will benefit from the DREAM Act have been raised and educated in this country. U.S. taxpayers have already invested in the education of these children in elementary and secondary school, and it is in our national interest to ensure that they have an opportunity to realize their full potential. Leading businesses like Microsoft have endorsed the DREAM Act because they want these students to be able to stay and contribute to American innovation and entrepreneurship. The DREAM Act also would increase the pool of highly qualified recruits for the U.S. armed forces. There is a strong tradition of military service in immigrant families, but the lack of immigration status prevents many of those who wish to serve from enlisting. Nearly 8% of current service members are foreign born and the military relies on the language skills and cultural knowledge of immigrants. Many current and former military leaders concur. Former Chairman of the Joint Chiefs of Staff and former Secretary of State Colin Powell has noted the advantages of this legislation. Secretary of Defense Robert Gates, in a letter on September 21, 2010, stated that the DREAM act would result in improved recruitment results and attendant gains in unit manning and military performance. In addition, the Department of Defense Strategic Plan for 2010-2012 includes the DREAM Act as one initiative that would assist in maintaining a quality, mission-ready all-volunteer force. The American Bar Association strongly supports the DREAM Act. We hope that you will vote in favor of this important and much-needed legislation. Sincerely, Stephen N. Zack With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. 10