Online Video to Assist with Florida Bar Application

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Steven Pinkert and Calrie Marsh Produce a Video to Assist Florida Bar Applicants

Steven Pinkert and Calrie Marsh, of Pinkert and Marsh, PA, (www.pinkertlaw.com) located in Miami, Florida are producing a series of online videos to assist law students who wish to apply to the Florida Bar. The first part is almost complete and will review documents and research that you must gather before filling out your Florida Bar Application.  The first video will also contain an overview of the Florida Bar Application process with emphasis on full disclosure, candor and materiality of disclosures.

The first video should be available online – free of charge of course – by April 30, 2012 and will either have a link to it in this blog.

Steven Pinkert and Calrie Marsh are member of the Florida Bar and frequently represent clients that are seeking admission to the Florida Bar.  For further information please contact Steven Pinkert or Calrie Marsh at 305-670-9000 or info@pinkertlaw.com.

 

Applying to the Florida Bar – Part 4 – Disclosing Arrests

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This is the fourth article in our series about applying to the Florida Bar.  This is the opinion of Steven Pinkert and Calrie Marsh, partners at Pinkert and Marsh, PA, a Miami Florida Law Firm.

One of the most frequent problems Applicants to the Florida Bar encounter is disclosing information related to previous encounters with law enforcement.  In order to accurately fill out the Bar Application, you must read the questions in the application very very carefully. Currently (December 2011) questions 19-23 on the Application to the Florida Bar relate to law enforcement contact (Felonies, Misdemeanors, Traffic, Grand jury and Immunity.) It is critical that you carefully read the call of the question.  First notice that the FBBE makes it clear that even if a matter has been expunged, sealed, dismissed, vacated, or you have been advised by an attorney that you don’t need to report the incident – YOU MUST REPORT IT. Second notice for example the call of question 19. a. regarding felonies. Question 19.a. includes the following language: arrested, detained, restrained, taken into custody, or formally or informally accused of a felony whether or not the charge was later reduced to a lesser charge.

So here is a hypothetical:  Assume that you were stopped by the police 5 years ago, and at the side of the road the officer accused you of committing a burglary, and you convinced the officer that you had a valid alibi as your wife was in the car and vouched for you, and the officer writes down your contact information and lets you go, and you never hear from him again, do you have to report this contact on your Application to the Florida Bar? The answer is YES. It is yes because you were informally accused of committing a felony.   It is irrelevant that you don’t believe there is a record of the incident. It is irrelevant that you “know” the FBBE can’t learn about the incident. First you  must be truthful because this is the way you prove that you currently possess good character. But second don’t ever think for a moment that the FBBE won’t find out about something. They have excellent investigators working for them.  Some of their investigators and analysts have previously been detectives or analysts in major law enforcement organizations. Trust me here – just tell the truth.  More often than not with the FBBE – it isn’t the crime but the cover up that ends an Applicant’s legal career before it starts.

Now, before you fill out your answer to question 19.a. you need to obtain the law enforcement records. Why? Because your memory for the event may be incorrect or the arrest record may reveal information that you did not know.  I cannot emphasize how often an applicant describes a situation as “xyz” and then the FBBE confront them with a police report that states “abc!”

So now lets step back and discuss how to approach your answers to all the law enforcement questions. First, before you answer the questions, request copies of all your law enforcement contacts in every county that you have lived, worked, attended school or even driven through if you were stopped by the police. Second, particularly if you were ever arrested for any offense that involved alcohol or drugs including just a garden variety disorderly conduct DO NOT RELY ON YOUR MEMORY. Carefully read all the information in the records and then answer the question. If your memory and the law enforcement report are at odds explain this in your response. If you were drinking you may want to defer to the law enforcement report. I am not saying that the police reports are more accurate than your memory. Police don’t always tell the truth in their reports and the FBBE knows this. But discrepancies certainly may raise an eyebrow.

Let me add a word about multiple law enforcement contacts related to alcohol or other substances.  If you have had more than one alcohol related law enforcement contact, depending upon the facts and dates of occurrence, then the FBBE is going to be concerned that you have a substance problem. This is a special topic that we will address in a separate article, but at the least you should have a discussion with your dean of students or a lawyer experienced in these matters as soon as possible and preferably before you file your application.

Remember, the FBBE will do a thorough criminal background check on all applicants.  Any discrepancy between what you report and the facts and circumstances will be brought to your attention for an explanation. Do not fail to disclose any law enforcement contacts. Further, make sure that the explanations you provide with the disclosure is complete, accurate and that your explanation accounts for the statements made by the police in your records.

Steven Pinkert and Calrie Marsh are Florida Attorneys and partners in Pinkert and Marsh, PA.  They practice in the area of Attorney Admissions and Attorney Grievances. They can be reached at 305-670-9000.

 

Applying to the Florida Bar – Part 3 – Beware of Facebook

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This is the third part in a series of articles regarding applying to the
Florida Bar. This is the opinion of Steven Pinkert of Pinkert and Marsh,
PA a Miami Law Firm.

In 2009 the Florida Board of Bar Examiners (FBBE) decided that under
certain circumstances the investigation of an Applicant shall include review of
their social networking sites. Although you may be shocked you should
realize that it is common today in the investigation of civil and criminal
cases for the attorneys and investigators to examine the social web
sites of the parties.  In fact it is not uncommon for attorneys to
review potential juror’s social websites if they can locate them in a
timely manner.  Social networking provides a wealth of information about a
person and this information can be very useful in litigation or in gathering
certain types of information about a person’s character.  You can check
out my personal blog at http://www.stevenpinkert.com/
and you will realize how much personal information I reveal there.

The Board of bar examiners is likely to review your social networking if
they have applicant is pleading rehabilitation. A requirement of
rehabilitation is that the applicant holds no ill will or malice against
those that have brought about the need to establish rehabilitation.
This can include a wide net including police, prosecutors, ex-spouses, law
school staff, and the Florida Board of Bar Examiners themselves to
name a few.  What better place to see if an Applicant harbors ill will
than looking for their comments (and ravings) on their Facebook wall! (Don’t
just think Facebook, think MySpace, Blogs, LinkedIn, etc.)

The FBBE will also review your social networking habits and content if you
have issues or their are questions regarding alcohol and substance abuse.
Consider what would happen if you had sworn under oath in an amendment to the
FBBE that you no longer use alcohol to excess and they see 30 pictures of you
and your friends drinking and screaming and partying over the past 6 months of
your postings!  This is not a hypothetical – it happens. So number
1: tell the truth, and number 2: don’t post photos of yourself partying if
there could be an issue with alcohol or drugs. In fact since you don’t control
all the photos that are posted – think about inactivating your Facebook
Account. Of course there is always a history (or backup) of your posting
and don’t think that the FBBE can’t subpoena from Facebook if they really
want them!

The FBBE will likely investigate your social networking posts if they find
that you have issues of candor. This includes if you have been dishonest on
employment applications and on your resume(s). As an important aside we have
seen many applicants with problems as a result of misrepresentations on their
resumes. Many resume experts will advise customizing your resume to meet the
requirements of a certain job that you are trying to land.  While this
may be good advice in business – you have to think very carefully of any
misrepresentation on your resume if you are heading into a legal career. Aside
from the resume issue, if there are questions about your truthfulness. assume
that your social networking posts will be reviewed to look for further
discrepancies in your bar application, law school application, resumes, etc.
Think about what you have said to employers, law schools and the bar and think
- now have I said anything different to my friends on Facebook?

There are additional reasons that you should expect the FBBE will examine
your social networking.  These include allegations that you have been
practicing law without a license (Unauthorized Practice of Law or UPL). These
issues do not arise infrequently.  Sometimes a student while summer
clerking for a law firm will in error make a statement in a letter that
makes it appear that they are actually lawyers. This is not necessarily the
fault of the Applicant. All too often the law firm that employs the applicant
will encourage this kind of misrepresentation believing it to be harmless. Unfortunately
the FBBE and the bar will hold the applicant responsible for this
misrepresentation and the repercussions can be very serious.  Likewise, if you have worked as a legal intern, been self-employed in a legal field, or reported that you have been employed as an attorney pending admission the FBBE will likely review your
social networking to look for misrepresentations regarding you non-attorney
status.  The take away here is, if you work in the legal arena, be very careful how you describe the nature of your work and responsibilities – even to friends on Facebook – before you are admitted to the Florida bar.

Finally, if you disclose on your Florida Bar application in response to item
27, that you have been involved in an organization that advocates the overthrow
of the United States government you should expect that the FBBE investigator
will be carefully reviewing your social network postings.  On the other hand, if you have been active in an organization whose goal was to overthrow our government, I suspect that your Facebook postings will be the least of your Florida Bar admission problems.

In summary, realize that the FBBE employs very sophisticated analysts and
methods to evaluate each Applicant’s character and fitness to be a member of
the Florida Bar.  This may seem harsh but
try the Florida Board of Bar Examiners has an obligation to protect the public
from unscrupulous lawyers, You have probably heard over and over about the
power and privilege that you are granted as an attorney.  The FBBE wants to make sure that it is unlikely that you will abuse that Power and Privilege by determining if you
have presently possess good character.

Social networking is by no means the only source of information.  The FBBE will ask the people that you provide as references to give the names of other people that know you.  The FBBE will then contact these people and ask about you. They will review each item on your Bar application and independently verify most of the information.
Almost any discrepancy will be brought to your attention and an explanation
will be requested. If it appears that the discrepancy is a result of an intentional
misrepresentation you will likely have to appear for a hearing. It is an understatement
to say that this hearing will most likely not be pleasant if there is a
misrepresentation.

Finally, depending on the circumstances the FBBE may request other sources
of information about you including some of your other electronic communications.  The bottom line is that you must be honest with the FBBE and fully disclose material information in repose to questions on the Bar application.

Steven Pinkert and Calrie Marsh of Pinkert and Marsh, PA represent lawyers
and law students who have issues with the Florida Bar and the Florida Board of
Bar Examiners. We are available for consultation.  Our website is www.pinkertlaw.com, and our phone is 305-670-9000.

 

Applying to the Florida Bar – Part 2 – Law School Applications

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In this section we will discuss the significance of your law school application with respect to your application to the Florida Bar. Again, we will emphasize candor.

After you submit you Florida Bar Application (FBA) and the required documents and releases, the Florida Board of Bar Examiners (FBBE) will obtain a copy of your law school file and law school application (LSA). An FBBE staff member who is an analyst/investigator will be assigned your application file. They will perform many tasks in investigating you and your file.  One of the issues that the FBBE is most concerned with is candor.  Simply put – are you a truthful person?  A finding of a lack of candor is a very serious disqualifying factor in your effort to seek admission to the Florida Bar.

One of the first things that the analyst does with your file is look for inconsistencies in your disclosures. They look for inconsistencies within a document and between documents.  For example, if you wrote an essay that accompanied your LSA did you state in the essay something that is inconsistent with a statement in your Bar Application.  In your LSA essay did you write some story that now appears to be alot of Bullcrap? Also, did you give a different explanation of an event such as an arrest in your LSA than your explanation in your Bar Application? Or more frequent, did you fail to disclose something in your LSA that you properly disclosed in your Bar Application? These are potentially serious problems that can cause the FBBE to take the position that they have found that you lack candor.

Before we continue about your bar application let me discuss an important point about character and fitness.  The FBBE, based on the Florida Supreme Court’s Rules, takes the position that you must possess present good moral character. The important word here is “present.” What this means is that past conduct is not necessarily key to the FBBE’s judgment about you. Rather, their judgment is based on an inquiry into your current or present character. The Florida Supreme Court Rule 3-12 is quite specific.

3-12 Determination of Present Character. The board
must determine whether the applicant or registrant has provided
satisfactory evidence of good moral character. The following factors, among others, will be considered in assigning weight and significance to prior conduct:

(a) age at the time of the conduct;
(b) recency of the conduct;
(c)  reliability of the information concerning the conduct;
(d) seriousness of the conduct;
(e) factors underlying the conduct;
(f) cumulative effect of the conduct or information;
(g) evidence of rehabilitation;
(h) positive social contributions since the conduct;
(i) candor in the admissions process; and,
(j) materiality of any omissions or misrepresentations.

Now the key point here is that if you lie in your Bar Application then it is obvious that you do not presently possess good moral character because you have lied under oath in the past few months.  The LSA is older and therefore a closer call.  If you were untruthful in your LSA which you filled out 3 years ago does that constitute a lack of present good moral character?  From our experience with these matters the answer is still likely to be that a material failure to disclose or a material untruthful disclosure in your LSA will at least be an issue that will trigger a hearing before the FBBE. And of course, unless you are from Mars you dont want a hearing. Trust us – FBBE hearing are scary, and they are not a fun or gratifying experience. (More about hearings in a later section.)

Now back to your LSA application.  All of you should have attended an orientation in your law school where they discussed the importance of candor on your law school application and the bar application.  Many of our Florida law schools explain during the orientation, that if there is anything you failed to disclose or that was untruthful on your law school application come into the dean of student’s office to discuss it and amend. This is very good advice. Do it. Do it now if you haven’t already.

We understand that you are afraid your law school might take disciplinary action when you notify them of your lack of candor onyour original LSA by amending. Do not be too afraid of your law school – particularly in comparison with the FBBE anyway. Much more likely than not the FBBE will discover the problem on your LSA and direct you to amend it – after asking you for explanation and why you didn’t amend in the first place. And then if it is a material misrepresentation or failure to disclose you will be called for a hearing.  As we mentioned above not only is the hearing unpleasnt - it will likely delay you admission for months.

Amending your LSA. Believe it or not students frequently mess up there amendment. Because – they either hedge giving a full disclosure in the amendment or they give some untruthful reason for failing to disclose inthe first place! If you are not completely truthful in your amendment then their is later evidence of lack of present good moral character.  The FBBE might say something like - ”well, you lied in your law school application, and then you lied again in your amendment 8 months later! So you really do possess a problem with candor, dont you?” Kind of a hard question to answer.

So, when you file your amendment, dont say you forgot to include an arrest if the real reason is that you wanted to look good on youir application and get admitted to law school.  The law school will understand if the truth is that you were afraid that if you told them this “horrible” thing about yourself that you would not be admitted.  This is human nature.

Be truthful on your amendment and make sure that you accurately include everything that the LSA called for in each question. You do not want to amend twice, or three times.  More than one amendment looks bad, although sometimes they are necesary.

If you have questions please feel free to contact me, Steven Pinkert, or my law partner, Calrie Marsh at 305-670-9000.  We are located in Coral Gables, Florida.

In our next segment we will discuss social networking and the FBBE background investigation.

Applying to the Florida Bar – Part 1 – Some Basics

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This is the first in a series of articles to offer some guidance in applying to the Florida Bar.

So you are applying to the Florida Bar.  We will assume that you have never been a member of the Florida Bar before as if you were the rules are a bit different.  When you apply to the Florida Bar you file your application with the Florida  Board of Bar Examiners – not the Florida Bar. The Florida Board of Bar Examiners is composed of a large staff that you will interact with during the application process who are overseen by the Board members. You won’t have direct contact with the Board members unless you are required to appear for a hearing.

The Florida Board of Bar Examiners is not your enemy.  They are charged with making sure that Applicants to the Florida Bar have the requisite legal skills and good character to safely represent the public.  This is not an easy task and it is important at times to see things from their perspective.  If you ask yourself – what would I want to know about an Applicant to make sure he or she is will be a quality and honest attorney, you will generally understand what and why the Florida Board of Bar Examiners is seeking to learn about you.

The most important advice we can give – which you have undoubtedly heard before is to be honest and disclose all information that is called for in the Bar Application. If you are in doubt about whether to disclose – either get the advice of a qualified attorney – or disclose.  Make sure your disclosure is accurate and DON’T BE CAGEY!

You have learned a lot about writing in law school and you may have learned about litigation strategy.  Applying to the Florida Bar is NOT the time to use your litigation strategy.  Don’t think about how you can rationalize not disclosing a fact to the bar.  The vast majority of applicants, even with background issues are admitted, IF, and I emphasize, IF, they are honest on their Bar Application.

Lets give an example. We can start with a simple one.  You were arrested in Kansas at age 18 and the case was never filed because you had a great attorney that handled the matter. You call your Kansas attorney and ask him if you should report the arrest on your Florida Bar Application.  He tells you it isn’t necessary.  I cannot tell you how many times we have heard this story.  It is bad advice because your Kansas lawyer doesn’t know the Florida Supreme Court Rules Relating to Admission to the Bar.  By the way if you want to read the rules the link is http://www.floridabarexam.org/public/main.nsf/rules.html.

Read the questions on the Florida Bar Application very carefully.  Sometimes Applicants miss a few words. For example, we can’t tell you how many times Applicants have forgotten to disclose that they were on academic probation OR they received any discipline in college.

Alcohol and drug consequences are a big deal and if you have had any consequences from use or abuse you are probably going to have to disclose it on your application. Just because you had a DUI doesn’t mean you wont be admitted to the Florida Bar.  Not disclosing the the truth about the circumstances surrounding the DUI is a sure way to to delay or have your Bar admission denied.

If you think you might have or have had a mental health problem or a problem with alcohol or drug use you can contact Florida Lawyers Assistance (FLA).  The information you provide to FLA is confidential unless you are directed to them by a court or the Bar or the Board of Bar Examiners.  They are really nice people and don’t be afraid to call them. Ask for Michael, Judy or Scott. Their phone number is 954-566-9040 and their website is www.fla-lap.org.

In summary for this introductory section. Tell the truth on you Bar Application – disclose, disclose, disclose.  In our next section we will discuss your law school application and how it might affect your Bar Admission.

The Information presented herein is by Steven Pinkert and Calrie Marsh of the Pinkert and Marsh, PA law firm in Coral Gables Florida.  Our website is www.pinkertmarsh.com. We can be reached at 305-670-9000 and our email is info@pinkertlaw.com.

Remember that the information we present here may not be applicable to your specific situation. We always recommend seeking the advice of a qualified attorney.  Another good source of advice for law students is the Dean of Student’s office at your law school. Generally the deans of students have a wealth of experience in assisting law students with questions regarding applying to the Bar.  They generally have an open door policy and trust us – they want their students to be admitted to the Bar.

Finally, the decision to hire an attorney is an important decision and you should NOT hire an attorney based on advertisements or websites or blogs.  You need to meet with an attorney and determine if they are qualified to assist you with your matter.