IN THE SUPREME COURT OF FLORIDA
Case No. SC03-184
In Re: The Florida Board of Bar Examiners Re: Arthur Michael Garel
APPLICANT’S INITIAL BRIEF
STEEL HECTOR & DAVIS, LLP Joseph P. Klock, Jr., FBN 156678 JuanCarlos Antorcha, FBN 523305 200 South Biscayne Boulevard 41st Floor Miami, Florida 33131-2398 305.577.2877 Fax 4452 [email protected] [email protected]
-and-
John Weiss, FBN Weiss and Etkin 2937 Kerry Forest Parkway Suite B-2 Tallahassee, FL 32308-6825
Counsel for Applicant, Arthur Garel TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...... i
TABLE OF AUTHORITIES ...... ii
CONTENTS OF APPENDIX ...... iii
JURISDICTIONAL STATEMENT ...... 1
I. STATEMENT OF THE CASE ...... 1
II. STATEMENT OF THE FACTS ...... 2
III. SUMMARY OF ARGUMENT ...... 16
IV. ARGUMENT ...... 18
A. Arthur Has Met and Exceeded The Factors in Rule 3-13 ...... 18
B. Mr.Garel Is Rehabilitated Pursuant To The Case Law...... 23
C. The Board’s Focus On Arthur Garel’s Past Was Misguided ...... 26
D. Arthur Garel’s Evidence Of Sobriety For Over Eight Years Is Evidence of Rehabilitation .. 28
E. Arthur Garel Has Had Exemplary Conduct for Over Eight Years...... 31
F. CONCLUSION ...... 32
i TABLE OF AUTHORITIES
CASES
Florida Board Of Bar Examiners re: DMJ, 586 So. 2d 1049 (Fla. 1991) ...... 25
Florida Board Of Bar Examiners re: J.A.S., 658 So. 2d 515 (Fla. 1995) ...... 29, 30
Florida Board Of Bar Examiners vs. PTR, 662 So. 2d 334 (Fla. 1995) ...... 23, 24
In re Petition of Diez-Arguelles, 401 So. 2d 1347 (Fla. 1981) ...... 25, 26, 28, 31
The Florida Board Of Bar Examiners re: L.H.H., 660 So. 2d 1046 (Fla. 1995) ...... 24
Other Authorities
Rules Of The Supreme Court Relating To Admissions To The Bar, Rule 3-13 ...... 1, 16, 17, 18, 19, 32, 33
ii CONTENTS OF APPENDIX
Section A Pgs 1-26 Findings of Fact, Conclusions of Law and Recommendations Section B Pgs 27-343 Transcript of Hearing Section C Pgs 344-521 Applicant’s 37 Exhibits at Hearing Section D Pgs 522-523 Applicant’s Letter to Florida Board
iii JURISDICTIONAL STATEMENT
The Supreme Court has original jurisdiction pursuant to article V, section 15 of the Constitution of the State of Florida.
I.STATEMENT OF THE CASE
Applicant, Arthur Michael Garel, (“Arthur”) seeks review of the Board of
Bar Examiners (“Board”) decision to deny his Application for Readmission to The
Florida Bar pursuant to Rule 3-13 of the Rules Of The Supreme Court Relating To
Admissions To The Bar (“Bar Admission Rules”). On January 13, 2003, the Board issued its FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDATION (“Findings”) rejecting Arthur’s application for readmission and forbidding reapplication for two additional years. It did so based upon a record which contained not one shred of evidence that was critical or negative towards Arthur, dating from the time of his disbarment.
Apparently, focused primarily on the seriousness of the charges that led to his disbarment, the recitation and treatment of which occupy over 90 percent of the text of the Findings, the Board concluded that his uncontroverted presentation of evidence of rehabilitation fell short of the clear and convincing evidence standard required of him. The record and the law demonstrate that the Board failed to apply 1 1 the correct standard to the correct evidence. Had it done so, on this record and based upon this Court’s precedent, the only conclusion it could have reached was that Arthur demonstrated his rehabilitation and fitness for readmission to the Bar by clear and convincing evidence.
II.STATEMENT OF THE FACTS
The Board, in its “Findings Background,” accurately recounts the history of the case, which Arthur adopts, and therefore, does not re-iterate. In addition,
Arthur disputes not one recited fact in the Findings. Indeed, while the application of controlling law to the Findings should, without more, result in reversal of the
Board. However, reference to the record’s a plethora of uncontroverted evidence in support of Arthur’s position leads to the inescapable conclusion that rehabilitation has been proven by clear and convincing evidence. The Court’s indulgence is thus requested as this uncontroverted evidence is outlined.
Five witnesses testified “live” and two by deposition as to Arthur’s character and rehabilitation. He testified as well. As part of his “Applicant’s Exhibit”,
Arthur also filed numerous good character letters and affidavits from other witnesses including lawyers attesting to his community service and/or good character. He also produced letters from the Executive Director of Florida
2 Lawyers Assistance Program and a letter from his sentencing trial judge, The
Honorable Jeri B. Cohen, as well as, letters from the Big Brother program,
Guardian Ad Litem program and Legal Services program. Included also were merit awards received from the Big Brother and Mentor programs.
Arthur was admitted to The Florida Bar in October 1973. After working for an attorney, he established his own firm in 1983. In 1991, he co-founded Garel and
Jacobs, P.A. (B 210). From 1973 until early 1992, he practiced law without incident, grievance, client dispute or wrongdoing. (B 43, 235, 236).
In 1989 Arthur was involved in a severe car accident, which shattered his jaw, fractured the facial eye orbit, and caused various other cranial neurological injuries. (B 43, 236, 237). He was placed on prescription narcotic medication which caused an aberrant reaction and temporarily released his theretofore undiagnosed bipolar depression.
These prescription drugs exacerbated his compulsion to gamble and his depression, and by 1992 Arthur had been cast into a rapid, downward, and spiraling dependence on prescription narcotic medication.1 This was the beginning of his addiction problems. (B 43, 236, 237, 239, 240, 241) (C 502, 508, 509).
With the onset and development of his addictions and depression, Arthur became a different human being, with a changed character, a different lawyer, a
3 different husband, and a different father. An unblemished legal career which had been distinguished by hard work, honesty, and family values was categorically destroyed piece-by-piece. Thus, while unknowingly under the influence of an addictive, prescribed narcotic, an ugly and totally abhorrent spin-down for this theretofore honorable lawyer occurred. In derogation of his duty of trust, he began stealing from his clients’ trusts funds, forging checks, and defrauding his partner, all while concealing this conduct from clients and his firm. He even stole from his own son’s trust funds awarded as a result of a tort settlement, which the father had won for him. What did he do with the money? He fed his gambling addiction and fed it generously.
When this was finally discovered, he offered to resign from the Bar, and this
Court allowed him to do so, with the effect of a disbarment, with the provision that he could reapply after three years. 2
The Florida Bar and this Court accepted a three year disciplinary resignation from Arthur, the shortest period allowed for a resignation and two years less than the five year minimum required by disbarment. The Florida Bar could have insisted on a resignation for five years, 10 years or permanent disbarment, but did
2 However, even at perhaps the lowest point in Arthur’s life, in December 1993, Arthur attempted to do the right thing by paying the client, Shari Hall, $46,500.00 of the $53,000.00 that he misappropriated. (A 8, 9) (B 272, 290) Also, in his letter of resignation to the Bar, he exonerated his partner from all of Arthur’s wrong doings. (D 522, 523).
4 not choose to do so. Clearly the Bar recognized that Arthur’s misconduct was a result of his impairments.
Arthur does not dispute the judgment of this Court. Indeed, the level of his appreciation for the seriousness and despicability of what he had done, his personal humiliation and shame, and his unwillingness to blame others for his woes is evident from these portions of his letter of resignation to the Florida Bar:
To: Florida Bar . . . It is with deep regret that I must inform you that I am a crook. I stole approximately $150,000 from the firm’s trust account.
I wish to advise the Florida Bar that I am addicted to gambling and prescription medication.
The theft of the money was made by the undersigned without any knowledge of my partner. My partner was completely placed in the dark of my filching the funds from the trust account. I was able to deceive my partner of this theft by calculating when the statements from the bank arrived, and then I quickly obtained all mail and the bank statements. . . .
Jeff Jacobs is like a brother to me and was shocked and dismayed when he found out about the situation. . . .
I forged Jeff’s name on the trust account without his knowledge and consent.
If Jeff knew what I was doing he would have been in total shock.
In fact after he found out what I did he started to cry because he knew I destroyed our trust and friendship. Jeff never considered what consequences would come to him. . . .
5 I will love Jeff forever for trying desperately to help me. In fact our entire staff, Karen, Carol and Cindy tried to make sure that I received help professionally. . . .
There is no one in our office who benefited from what I did.
I hate myself for what I did to my family, friends, clients, staff and Jeff and my parents.
My only hope is that the Florida Bar and State Attorney take what action would be appropriate and refrain from doing anything to Jeff.
I know that I must be punished and accept whatever punishment that would be appropriate.
My last request is that no action should be taken against Jeff Jacobs, as I previously stated Jeff had no knowledge as to what I did and he did not profit one penny from this travesty.
Jeff gave his best effort to try to help me but it came too late.
Jeff has been with me for 10 years and I have never known anyone more honest, sincere, great lawyer and friend. I destroyed my firm, my staff and wife and family and parents.
The only person who profited from all this was me! Jeff was totally duped into what I was doing and most respectfully is a complete innocent party. I can only ask forgiveness from Jeff, Carol, Liz, Cindy, my family and the clients I affected. . . .
(D 522-23).
In January of 1994 Arthur began treatment for his drug addition, alcoholism, compulsive gambling, and bi polar depression (B 291). He was able to deal with his wrongdoing by accepting severe punishment, never disputing any charge either
6 criminally or administratively and taking steps to make amends to those client’s, family members and other persons he had harmed.
As a result Arthur spent 270 days in the Dade County Jail for several felonies in which adjudication was withheld. In February 1994, the Florida Bar filed a Petition for Emergency Suspension and in March a complaint against Arthur in this Court. In January 1995, Arthur petitioned for leave to resign, and in March of 1995, his resignation was unopposed by The Florida Bar, which agreed to a three year resignation retroactive to March of 1994. This Court ratified that arrangement, include the minimum three year period before reapplication could be initiated. (A 10, 11).
During the past eight and one-half years of Arthur’s involvement with recovery from alcohol addiction, drug addiction, gambling addiction and bi polar depression, he was able to succeed with the significant assistance of two psychologists and a psychiatrist together with assistance from members of FLA,
Alcoholics Anonymous (“AA”), Narcotics Anonymous (“NA”), and Gamblers
Anonymous (“GA”). He has taken responsibility for his wrongdoing and provided services to the community. (A 19-22).
He completed treatment programs at two hospitals, South Miami Hospital and CoPac, Inc.(Jackson Mississippi), specializing in the treatment of alcohol, drug and compulsive gambling addictions and depression. Arthur has been a regular
7 member of the Florida Lawyer’s Assistance program, AA, NA, and GA. (B 125,
135, 249, 250). In addition, he has been continually treated for his bipolar disease.
He has served as a monitor for the Florida Lawyer’s Assistance program, as a sponsor in the AA program, NA program, and GA program. In addition, he mentors three children at Phyllis Wheatley Elementary School and spends approximately five hours a week with them. He is a Big Brother to a young man named Samuel in Miami, spending 16-20 hours per month with him. (B 276, 277).
At the request of Circuit Judge Jeri Beth Cohen, he spoke at a judges’ conference in 1999. (C 354, 356, 358). He has also spoken at numerous schools and civic organizations. (C 364, 365, 366, 367). He regularly attends AA, NA, and GA meetings and sponsors over 20 people. He has been a monitor for the last six years for the Florida Lawyers Assistance program, been a volunteer Guardian Ad Litem for two years and has provided approximately 100 hours of service to the Guardian
Ad Litem program over the past two years. He has tested negative on the random drug testing for the last eight and one-half years. He has received merit awards from the Mentor program and the Guardian Ad Litem program as well as received letters of recommendation from both. (C 350, 352, 358, 360).
Arthur has reestablished his relationship with his previous wife of 20 years.
His son, Michael is an engineer for the Dell Computer Company, and his daughter,
Dara, a graduate of Cornell University and a current law student at the University
8 of Florida College of Law. (C 434, 456). Both of his children and his ex-wife are proud to say they know and love Arthur. His ex-wife testified by affidavit:
I witnessed a remarkable change in Arthur’s behavior and character following his treatment at South Miami Hospital in February of 1994 and his long term rehabilitation at Co-Pac in Mississippi. I believe the thefts were completely out of character because he had never exhibited this type of behavior during our marriage before his drug and gambling addiction became evident.
Before his misdeeds in 1992 and 1993 I had known Arthur to be a very honest and well respected individual. He was well respected among our friends and in the community where we lived. He was always willing to help neighbors, friends and family members. He was extremely unselfish. Since he has been released from treatment I have seen his character return to that of his former self. (C 432).
Myer Cohen, the executive director at Florida Lawyer’s Assistance, Inc, testified again by affidavit:
Except during the periods of his treatment and incarceration, Arthur has remained in full compliance with all provisions of his contract.
He has met with his monitor on a monthly basis or more often, and all reports submitted by his monitor indicate that [Arthur] regularly attends the Alcoholics Anonymous and attorney support meetings required by his contract. In addition, [Arthur] has been drug tested at least monthly and has appeared for all random urine analysis screens within the requisite time periods, with all results being negative. [Arthur] has been in regular attendance at the Monday and Tuesday evening FLA meetings, and has become a valued and valuable participant.
9 I have watched him go through treatment, Bar resignation, incarceration, probation, and FLA monitoring with the spirit of acceptance and no indication of resentment toward any of the agencies involved. [Arthur] has accepted responsibility for his actions and the consequences thereof and has used his experience to help others through participation in the Dade County Guardian Ad Litem program, speaking at schools on the issue of substance abuse, by sharing his story at the 1999 College of Advanced Judicial Studies, by acting as a monitor for FLA, and by giving unselfishly of his time to other attorneys entering the FLA program, especially those suffering from compulsive gambling. (C 379, 380).
Arthur’s service to the community has also been an integral part of his life during rehabilitation. Merle Wexler, Arthur’s supervisor at the Big Brother program, stated that she wished Arthur could be “cloned.” She describes Arthur as a man who is “extremely candid and forthcoming,” a “wonderful role model who goes the extra mile,” “he spends five hours a week mentoring” and “everyone the principal, teachers, counselors, librarians at the school think of him in a positive sense and indicate he’s very, very, very enthusiastic in his work.” Ms.
Wexler further stated that he has “high character”, “is an honest person,” and “I feel fortunate to know him.” She further testified “I recommend him to the Bar
110% or I would not be here today.” (B 90-107, 225, 226, 230).
The director of the Guardian Ad Litem program, Joni Goodman, in a letter to the applicant stated:
10 We don’t often get a chance to commend our Guardians for a job well done and I’d like to take this opportunity to do so. You are diligent about getting your reports in and assuring that court hearings are covered. We appreciate all you are doing and we know that this truly takes extra effort. Thank you on behalf of our children. Your service is much appreciated. (C 396).
Myer Cohen, the executive director of the Florida Lawyer’s Assistance program testified that Arthur is under contract voluntarily through 2009 and has never missed a urinalysis, never tested positive in over eight years, goes above and beyond the terms of his contract of recovery and always serves as a monitor for the association and presently monitors four lawyers. Mr. Cohen provided his strong unequivocal support of Arthur’s readmission by stating:
I mean, I think to put it candidly, that I know how difficult and how high the standards are when you’ve done such things as [Arthur] and such things as I have done and I think those standards should be very high, but if this case doesn’t meet the Bar I don’t know what case would. I don’t know what more somebody could do both externally and internally to deserve another chance. If he doesn’t get in I don’t know what case would. I think he will make an admirable lawyer. (B 166-168).
Arthur has helped in the healing of suffering children and adults who also suffer from bipolar disease and compulsive behavior. His involvement has been a significant cause of his own remission from his compulsive behaviors. Arthur’s monitor, Attorney Richard Baron, has provided an affidavit stating he has been
Arthur’s monitor for approximately four years. He meets with Arthur three times
11 per month and has personal knowledge that Arthur has complied with the terms of his contract. In his opinion Arthur has fully complied with all his obligations regarding abstinence from drugs, alcohol and gambling for more than eight years.
He indicates
Garel performs community service by helping individuals with Florida Lawyers Assistance program, personally sponsoring individuals, speaking at schools in the area, volunteering as a Guardian Ad Litem and he mentors three children in the elementary school. I can state in all sincerity that Arthur M. Garel has made recovery his most important task and has been a productive member of Florida Lawyers Assistance program. In my opinion the acts that [Arthur] committed in 1993 were due to his addiction. Since he has returned from treatment in 1994 he has changed dramatically and lives an exemplary life. I have no hint of a repeat of the conduct that led to his disciplinary and criminal charges. (C 375, 376).
In another affidavit, Attorney Baron, called Arthur a “ poster boy” for
Florida Lawyers Assistance program. Attorney Thomas Headley, Arthur’s sponsor for the past eight years, states in his affidavit:
I am the AA sponsor of Arthur M. Garel and have been his sponsor for the past seven years. I am personally aware that Arthur has been active in AA, NA and GA programs. I am also aware he is active with the Florida Lawyers Assistance program and he monitors a number of individuals for that program. Furthermore, I am aware that [Arthur] is sponsor to various individuals in this community. I firmly believe that [Arthur] is remorseful for the acts of thefts he committed in 1992 and 1993 and has made extensive efforts to rehabilitate himself. Additionally [Arthur] has not gambled since the latter
12 part of 1993. I have worked closely with [Arthur] for the past seven years. I can state without equivocation that he has definitely come a long way in his rehabilitation process. I believe that if the Florida Bar would give him a second chance he would be a major asset to the Bar. (C 371, 372).
Tanya McKenzie, the mother of Arthur’s little brother, Samuel, testified that her son’s relationship with Arthur is “awesome.” She stated “I never saw my son bond to anyone like he has to Arthur.” “My son has made a 360 degree turn about.” She states Arthur “is heaven sent” and that “he got my son to read.” (B
223-232).
In 1999, the judge who sentenced Arthur (Circuit Judge Jeri Beth Cohen) asked him to speak at a judges’ conference. She memorialized her appreciation:
On behalf of Judge Rosinek and myself, I want to thank you so much for agreeing to share your story of addiction and recovery with some of our judges. I greatly appreciate your commitment to educating Florida judges about substance abuse. In so doing, you are contributing to the recovery of the hundreds of addicted people who appear before them. I know that it takes courage every time you tell your story. I hope to see you back next year.
On a personal note, I was very moved to witness your personal growth and very rewarded to know that I made the right decision concerning your sentencing. I wish you continued success and fulfillment. (C 358).
Furthermore, Tricia A. Matthews of the office of the State Courts’
Administrator, wrote to Arthur stating:
13 Thank you very much for your participation as a panelist during the 1999 College of Advanced Judicial Studies. We appreciate the time you took from your other responsibilities to teach at the College. The evaluation of the “Substance Abuse” course will be mailed to you after they are compiled.
Again, thank you so much for your participation and for contributing to the success of the College. (C 356).
Also, the principal of the school where Arthur’s mentors three for approximately five hours a week wrote to Arthur stating:
As the 2000-2001 school year comes to a close, we notice the improvement our students have made throughout the year. Much of this improvement is due to your making a difference in the life of a boy or girl. Your participation at Phyllis Wheatley Elementary School allowed students to receive extra help when they needed it the most. Your attention helped students with their self-esteem and encouraged them to want to succeed.
The Phyllis Wheatley family wishes to thank you for your support and hopes to see you again next school year. (C 362).
The applicant was jailed for 270 days at TGK Correctional Institute in
Miami and his correctional officer, Robert Brito, stated in a letter to the Board:
I give this letter with pleasure because I believe that Arthur is an outstanding human being. In my line of work, believe me I see very few people like him. I know Arthur’s history, I know what he did, he showed me the indictment against him. I know he did wrong but I also know he paid for his crime. He was a model inmate at Turner, Gilford and frankly he was one of the very rare inmates that I enjoyed being with. The man was very special. I’ve never seen anyone be so kind and caring to
14 the men that he was locked up with. It is very rare to see one inmate respect another one. In my opinion every single inmate, there were over 60 in that cell block, had complete respect for Arthur. And I know he came back even after his release to help the people. I considered him such a fine human being that I made sure that I stayed in contact with him after he got out. (C 436)
Another corrections officer at TGK, Corporal Lewis Perez, stated in a letter:
During the period of time in my opinion he was an absolutely ideal prisoner. He was always willing to help out his cell mates. In that cell block there were almost daily alcoholics anonymous and narcotics anonymous meetings. He would always share his story to the other inmates and I know the inmates listened very carefully because of the fact that he had hit rock bottom and lost everything. I know that he had been in long term treatment facility and shared the education he got at that facility with all the inmates. He was always ready, willing and able to help any inmates who needed help. He was a gentleman, he was honest and he was very frank about the money he stole. Also what brought him to my attention was that he seemed very comfortable to be confined to a cell block with 60 other people yelling and screaming the entire day. I often questioned him about why he wasn’t complaining like all the other inmates were. He felt that he was fortunate to receive a sentence of 364 days and deserved the punishment the judge gave him. Through my conversations with him I felt he was very remorseful for what he did and the only person he blamed was himself. (C 438, 439).
15 III.SUMMARY OF ARGUMENT
What is curious in reviewing the record is the Board’s almost obsessive recitation of the factors that led to disbarment, accompanied by a record which contains undisputed clear and convincing evidence of Arthur’s rehabilitation commencing immediately after the disbarment period, and then inexplicably concluding that rehabilitation has not been established.3 In effect, it appears as if the Board was confirming the fact that the Court properly disbarred him for what he had done in 1994, as opposed to determining whether he is rehabilitated today.
The fact is that his application for reinstatement came many years after this Court had determined that he could reapply. This Court said three years, as opposed to four through 10 or more, as it could have been required.
The purpose of the reapplication review by the Board is not to reaffirm the wisdom of the Court in a disbarment proceeding, nor is it to review the wisdom of the penalty imposed by the Court. The Board’s task is to determine whether rehabilitation has occurred looking to the factors in Rule 3-13. Here, Arthur did not apply until eight years after his disbarment, despite the fact that he could have within three years. The Board, even though applauding his degree of
3 And, the standard may well be analogous the Roth Memoirs standard of not being able to define rehabilitation, but knowing it when you see it, as there is no explanation about what this poor man is to do over and above what he has done.
16 rehabilitation, seems unimpressed, although the basis for its view remains undisclosed.
When this Court determined that he could reapply in three years, it knew what he had done. It could have chosen four through 10 years, or longer. It did not.
It appears that the Board disagrees with the Court. And, the law does not grant it that power.
If the Court had decided that the “eye for an eye and tooth for a tooth” standard was to be applied, it would have permanently disbarred him or could have disbarred him for a minimum of more than three years. Thus, while paying lip service to the “clear and convincing” standard of evidence of rehabilitation, the
Board appears to be applying a presumption of unsuitablility standard.
The entire “feel” of the findings suggests that the Board was fixated upon the seriousness of the charges which led this Court to disbar Arthur. In effect, the
Board based its decision upon the factors that this Court based its disbarment upon.
The issue before this Court is whether the record shows indisputably that Arthur is entitled to reinstatement because he has established by clear and convincing evidence that he is rehabilitated. It does. He has. The Court should order that he be re-admitted, and that the Board findings of fact be accepted, but its inconsistent conclusion be reversed. The record is a tribute to the height over the Rule 3-13 bar
17 that Arthur has cleared. If this record does not establish rehabilitation, what must someone show that meets due process requirements? 4
IV.ARGUMENT
In order to be readmitted to The Florida Bar Arthur must prove by clear and convincing evidence that he is rehabilitated. Rule 3-13 of the Bar Admission Rules provides a guide as to what an applicant must show to meet that standard. Furthermore, the review technique that this Court has employed in considering these cases has been to review each category against the record of the case. Thus, we begin with a recitation of the requirements of the rule, followed by an application of each requirement to the record in this case.5 A. Arthur Has Met and Exceeded The Factors In Rule 3-13 Rule 3-13 sets forth the following elements of rehabilitation: (a) strict compliance with the specific conditions of any disciplinary, judicial, administrative or other order, where applicable;
(b) unimpeachable character and moral standing in the community;
(c) good reputation for professional ability, where applicable;
4 The Board’s determination was totally based on Arthur’s prior conduct. That is inappropriate, especially when contrasted with his extensive service to the community, his excellent moral standing in the community, his impeccable reputation with regard to his professional ability, and his continued efforts to work until all the money he took was paid. Moreover, if pre disbarment history is so weighty, where is the consideration of the mitigating fact that most of this disaster was triggered and fed by an unknowing addiction to drugs that had been prescribed for him. No one is suggesting that the addiction exonerates him. But, for mercy sake, it certainly should be considered. 5 Arthur will not re-state everyone of the various categories in this section of the brief as many are articulated in the Statement of the Facts.
18 (d) lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative or other proceedings;
(e) personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future;
(f) restitution of funds or property, where applicable; and
(g) positive action showing rehabilitation by such things as a person’s occupation, religion, or community or civic service.6
If an applicant meets these requirements, he is rehabilitated pursuant to Rule 3-13.
As the record more than amply reflects, Arthur has clearly demonstrated each of these Rule 3-13 factors by clear and convincing evidence:
6 Bar Admission Rule 3-13.
19 1. Arthur Has Strictly Complied With The Specific Conditions Of Disciplinary, Judicial, Administrative Or Other Order Where Applicable;
Arthur has strictly complied with the conditions of the Order of this Court regarding his resignation, and he has strictly complied with the order of probation entered by the circuit court. Arthur’s sentence of probation was reduced from 10 to five years because of his strict compliance with the sentence. There are absolutely no allegations against him regarding the unlicensed practice of law or violations of the Bar’s restrictions on clerking by a resigned lawyer. Lastly, Arthur has made restitution to Jeffrey Jacobs pursuant to Court Order. He has thus fulfilled all requirements of disciplinary, judicial, and administrative orders.
2. Arthur Has Exhibited Unimpeachable Character And Moral Standing In The Community;
Arthur has rehabilitated his good name in the community. He has presented testimony, depositions, affidavits, letters from lawyers and lay people who have confidence in his ability. (C 344-456).
3. Arthur has a good reputation for professional ability where applicable;
Professional ability does not appear to be at issue. He has taken and passed the Bar exam since his resignation, thus testifying to his competence to practice law. In fact he passed the Bar exam on his first try 29 years after graduating from law school.
20 4. Arthur Has A Lack Of Malice Or Ill Feeling Towards Those Who By Duty Were Compelled To Bring About The Disciplinary, Judicial, Administrative Or Other Proceedings;
Arthur does not express any malice or ill feeling towards the State
Attorney’s Office or to officials of the Florida Bar. He recognizes that the disciplinary proceedings against him were appropriate. He never expressed any ill feeling towards anyone responsible for the disciplinary proceedings. In fact, the judge who sentenced Arthur in the criminal case asked him to speak at a judge’s conference on the subject of drug, alcohol and gambling abuse. (C 358).
5. There Is Significant Corroborating Evidence And Personal Assurances By Arthur Of A Desired Intention To Conduct Himself In An Exemplary Fashion In The Future;
Arthur and his supporting witnesses testified to his desire to conduct himself in an exemplary manner. Arthur regrets his misconduct and takes full responsibility for it. He has undergone over eight years of counseling. He has developed an excellent relationship with his ex wife and has remarried.
There has been absolutely no misconduct since 1993. Arthur’s witnesses testified that they were familiar with the Specifications filed against him, and all support him wholeheartedly. All the witnesses testified as to Arthur’s desire to lead an exemplary life and to the positive changes he has made in his life since
21 resignation. Arthur has made restitution to Jeffrey Jacobs and all other people that he owed money.
6. Arthur Has Made Restitution Of Funds;
Beginning in 1994 and for the years subsequent thereto, Arthur made full restitution of all funds misappropriated.
22 7. Arthur Has Taken Positive Action Showing Rehabilitation By Such Things As His Occupation And His Community, Educational, And Civic Service;
Arthur has shown positive action showing rehabilitation by his involvement in his occupation, community, educational, and civic services. Arthur has risen to positions which require the giving by him of his personal time and effort assisting others who need help in their station in life. Arthur has chosen a life involving action in helping others who suffer from alcoholism, mental illness, handicap by lack of means or station in life. Arthur serves faithfully in any area where he can help those less fortunate. (i.e., Mentor, Big Brothers, Guardian Ad Litem,
Sponsorship). He has attended annual meetings held in Naples of F.L.A., which purpose is to academically study the causes and solutions of alcoholism and addiction. These voluntary acts go well beyond his duties and responsibilities as a father of two aspiring young professional children. He also continues to support his ex-wife financially, even though she is remarried, which makes Arthur’s support of her completely voluntary. An attorney seeking to be readmitted must correct his wrong and stand out in every one of the elements listed above. Arthur has done just that.
23 B. Mr.Garel Is Rehabilitated Pursuant To The Case Law.
Arthur’s case is similar to the case of Florida Board Of Bar Examiners vs.
PTR, 662 So. 2d 334 (Fla. 1995) where this Court overturned the Board’s findings.
In PTR the applicant indicated that he did not know what further rehabilitation he could show, and this Court agreed. The Court held that PTR had demonstrated rehabilitation by complying with criteria set out in article III, section 4.e. of the
Rules Regulating Admissions to the Bar. The Court stated:
[H]e has served his community as a volunteer martial arts instructor; volunteer by serving as treasurer, umpire or coach for his son’s little league team; and offered his services to a homeowners association in North Carolina, where he and his wife own a lot. In addition PTR has a rare blood type, and he donates blood about every 60 days. During his disbarment, he has worked for a law firm. He does research and drafts documents, but does not have any client contact. Id. at 337.
Here, the Board, in its Findings, lauded Arthur’s rehabilitation. In fact, while in no way wishing to diminish the significance of the applicant’s efforts in
PTR, Arthur’s evidence of rehabilitation is far more extensive and involves more personal commitment. Yet the Board’s conclusion seems to have been reached without regard to this Court’s directives. See Id. The Board’s view seems unaffected by PTR:
[T]he Board is mindful of the favorable character evidence offered by the witnesses who testified on the applicant’s behalf. The Board also recognizes and
24 applauds the applicant’s efforts and involvements in this community for the Guardian Ad Litem program, Big Brother Big Sisters, and his efforts to tell his story in various public forums. The applicant is commended for his efforts and is encouraged to continue this laudable activity. The Board also acknowledges the applicant’s efforts at dealing with substance abuse, compulsive gambling and bi polar disorder. (A-24)
The only Board allegation that goes to Arthur’s conduct subsequent to 1994 was that the applicant failed to file his 1997 tax return. But, the Board found insufficient evidence to support this allegation and thus it did not constitute a negative factor. Therefore, there were no allegations proven with reference to any misconduct since 1993. (A12). Thus, Arthur, having outpaced by a distance the performance in PTR, the Board should have recommended him for admission to the Bar, and irrespective, the Court should find that he ought be admitted and admit him. Because, Arthur has, by clear and convincing evidence, proven his rehabilitation, and demonstrated that he has the requisite strong ethical character to serve the people of this state as an attorney.
Arthur is aware that he has a heavy burden to demonstrate rehabilitation.7
He submits that the evidence shown at the formal hearing is more than clear and convincing evidence of his rehabilitation. To require more of him changes a heavy burden to an impossible one.
7 The Florida Board Of Bar Examiners re: L.H.H., 660 So. 2d 1046, 1048 (Fla. 1995).
25 Again, in Florida Board Of Bar Examiners re: DMJ, 586 So. 2d 1049 (Fla.
1991), this Court readmitted the applicant with far less convincing evidence of rehabilitation than what Arthur has presented this Court. In DMJ the Court stated:
We do not take lightly the Board’s determination that petitioner committed such a serious offence. Such conduct may provide the basis for denying one the privilege to practice law. However, the rules do not bar the admission of previously convicted persons if they demonstrate that they currently meet the standards of conduct and fitness. In re Petition of Diez-Arguelles, 401 So. 2d 1347, 1349 (Fla. 1981). The nature and seriousness of the offense are to be weighed against the evidence of rehabilitation.
Upon our review of the record, we conclude that the petitioner should be admitted to the Bar. The evidence of good character presented by the petitioner was sufficient to demonstrate his rehabilitation. Petitioner presented numerous character witnesses whose testimony was highly favorable and uncontroverted. The judge for whom he clerks gave petitioner his highest unqualified recommendation for readmission to the Bar and testified as to his very high and every favorable impression of petitioner’s character and ability. Two Florida attorneys who have known petitioner for many years recommended him fore admission without hesitation, as did an attorney for whom petitioner previously clerked. Petitioner submitted affidavits of two of his former law school professors who attested to his outstanding legal ability, honesty, generosity, and integrity. Witnesses testified that, to their knowledge, petitioner has no involvement with drugs. Various witnesses testified or submitted affidavits regarding petitioner’s outstanding charitable work over the past several years for the Civil Air Patrol and the Kiwanis Club. Finally, we note that the offense in question occurred more than twelve years ago, and there is no indication of conduct which would warrant
26 disqualification since that time. Accordingly, we find that petitioner has demonstrated that he currently meets the standards of conduct and fitness and we direct that he be admitted to The Florida Bar. Id at 1050-1051.
The focus of the Court being on the evidence of rehabilitation, not the applicant’s past conduct. To focus on the applicant’s past conduct would be to reconvict and re-punish Arthur. It is clear that such a course runs afoul of the Court’s directives. C. The Board’s Focus On Arthur Garel’s Past Was Misguided
Arthur’s achievements over the last eight and one-half years, his actions, and his community service prove that he is rehabilitated. The Board has found
Arthur’s rehabilitation to be laudable. Yet, the Board’s Findings indicate otherwise. Why the disparity between the Findings in the first 22 pages and the conclusions of law in the final five pages? Simple, the Board has become inexplicably rutted in Arthur’s past conduct, with little or no focus on his activities in the eight and one-half years since he was disbarred, thus diverting its attention away from its function, which is to judge rehabilitation. This is clear since the
Board basically says that Arthur’s past conduct is in fact the only reason for denying his application for readmission.
The Board stated “when conducting an evaluation of the applicant’s present evidence of rehabilitation, the Board can not disregard his past misconduct.” (A-
23). Further, “weighed against his record of rehabilitation is the seriousness of the applicant’s past misconduct.” (A-24). However, when it came time to actually
27 weigh the rehabilitation evidence the scale was skewed way before the weights were put on the scale. The only mention of Arthur’s rehabilitation in the Findings is the following excerpt:
[T]he Board is mindful of the favorable character evidence offered by the witnesses who testified on the applicant’s behalf. The Board also recognizes and applauds the applicant’s efforts and involvements in his community for the Guardian Ad Litem program, Big Brothers Big Sisters, and his efforts to tell his story in various public forums. The applicant is commended for his efforts and is encouraged to continue this laudable activity. The Board also acknowledges the applicant’s efforts at dealing with substance abuse, compulsive gambling and bipolar disorder.”
It is quite obvious that the Board’s applause was quickly muted by Arthur’s past misconduct. It is also clear that the Board’s ability to judge rehabilitation is severely impacted by the past offenses. That is clear by the continued references to the past conduct throughout the findings. There simply is no balance. The Board’s needle got impermissibly stuck in the past conduct groove.
In re Petition of Diez-Arguelles, 401 So. 2d 1347 (Fla. 1981), emphasizes the role of past conduct as seen by the Court. This Court stated: “In ruling in favor of petitioner’s admission, we do not make light of or ignore his past. He was arrested . . . and adjudicated a felon. Such conduct provides the basis for denying one the privilege of practicing law.” Id. at 1349. However, the rules do not “bar the later admission of one so convicted if he is able to demonstrate that he meets
28 the standards of conduct and fitness required of an attorney.” Id. at 1349. In looking at the petitioner’s conduct of rehabilitation, the Court noted:
Petitioner has demonstrated that he meets said standards. He has shown by hard work, perseverance and dedication, a reformation. We would be hard pressed to find a person who has worked harder to overcome a regrettable course of conduct; one who chose the route of improvement and rehabilitation through hard work rather than the too often chosen path of a continued life of crime. One who works diligently at rehabilitation, and can show that he has in fact been rehabilitated, should not be denied the privilege of practicing law solely because of the past mistake which is no longer relevant to the issue of his admission to the Bar. Id. at 1348.
The focus of this Court was on the evidence of a “new course for his life” that the petitioner plotted, not his past involvement in drugs. Against that standard and measuring it against the record, this Court found that the record established clear and convincing evidence of rehabilitation. That is the case here as well, and the Board did not offer one fact disputing the rehabilitation of Arthur.
29 D. Arthur Garel’s Evidence Of Sobriety For Over Eight Years Is Evidence of Rehabilitation
Arthur’s misconduct stemmed from an addiction problem that began, not by a voluntary act of indulging a taste for “recreational” drugs, but rather an unintended and negligent introduction to prescribed narcotics to reduce intractable pain. Not only does the Board not consider why the drug problem started, but it completely disregards Arthur’s achievements in staying sober for over eight and
1/2 years.
In Florida Board Of Bar Examiners re J.A.S., 658 So. 2d 515 (Fla. 1995), the petitioner was denied admittance to the Bar for engaging in a continuing pattern of criminal and illegal activity, and his inability to tell the truth to Board inquiries. He was arrested various times, several for use of heroin. Yet another time, the Court reversed the Florida Board of Bar Examiners’ decision that petitioner not be admitted to The Florida Bar and conditionally admitted him. The
Court reasoned:
We also find that the misconduct at issue stemmed from J.A.S.’s addiction problem, and that all of the incidents preceded the date when J.A.S. sought professional help three and a half years ago. The record reveals that J.A.S. has attended approximately eighty weekly meetings of Caduceus, a professional peer support group . . . . He signed a contract with Florida Lawyers Assistance . . . that required him to attend Alcoholics Anonymous/Narcotics Anonymous meetings, to seek outside psychological help, and to submit to monthly random drug tests. . . . [H]e volunteered his services to Narcotics Anonymous. . . . He has abstained from drug use since January 1988 and from alcohol since January 1,
30 1992. . . . This record, as well as J.A.S.’s volunteer service to the community, adequately evidences his rehabilitation.8
Arthur’s misconduct, like the petitioner’s misconduct in J.A.S., stemmed from a drug abuse problem. Arthur, like the petitioner in J.A.S., focused his rehabilitation at the root of the problem, the drug abuse. In 1994, five years after the severe automobile accident which caused his dependence on narcotic medication and gradual dependence on drugs and alcohol, Arthur began voluntary treatment for drug addiction, alcoholism and compulsive gambling. As all alcoholics, to this day, he continues his daily commitment to stay sober. He has completed treatment at South Miami Hospital Drug and Alcohol Treatment Center and Copac, Inc. in Jackson, Mississippi. During these nine years he has been a regular and daily member of Florida Lawyer’s Assistance, AA, NA, and GA. He has been and is a sponsor for AA, NA, and GA, providing valuable guidance and comfort to fellow sufferers of these diseases.
Michael Cohen, the executive director of Florida Lawyer’s Assistance states, that Arthur is under contract voluntarily through 2009 (and consistently and consecutively since 1994), and has never missed a urinalysis, never tested positive in eight and 1/2 years, and goes above and beyond the terms of his contract of recovery.
8 Id. at 516.
31 Although not an excuse for his misconduct, his recovery is evidence of his rehabilitation. Arthur has maintained his sobriety and has led an honorable life, dedicated to his community, friends, and family. Arthur’s evidence of rehabilitation should have been the Board’s focus but it was not.
E. Arthur Garel Has Had Exemplary Conduct for Over Eight Years.
The Board recommended that Arthur be “disqualified from reapplying for admission for a period of two years from the date of these findings.” (A-26). As the Court has held, “a corollary of the rule, therefore, would be that one may be sufficiently rehabilitated after two years to gain admittance to the bar.” In re
Petition of Diez-Arguelles, 401 So. 2d 1347, 1349. Arthur has had exemplary conduct for over eight years. Although this alone is not proof of rehabilitation,
“[i]f two years is adequate time for rehabilitation to occur, then the fact that petitioner has acted in an exemplary fashion for eight and one-half years is compelling evidence of such on his part.” Id.
Arthur has been demonstrating his rehabilitation for over eight years. His misconduct stopped immediately once he recognized that he was ill and received treatment for the active diseases that had been plaguing him. His record is flawless for the last eight and one-half years. Clearly, Arthur has established that he is in fact rehabilitated, by whatever standard one wants to apply.
32 F.CONCLUSION
The evidence in the record supports the fact that Arthur’s conduct since
1994 not only complies with Rule 3-13 of the Bar Admission Rules, but is the epitome of the spirit of the rule. His exemplary character and the testimony, depositions, affidavits, and letters presented to the Board prove rehabilitation clearly and convincingly. Arthur has undoubtedly rehabilitated his character. The
Board could not present one scintilla of evidence, either by letter, affidavit, deposition, or live testimony showing any act, omission, or incident reflecting ill on the applicant since his emergency suspension in February of 1994. Arthur is an extraordinary human being and as a lawyer would be a credit to the legal profession.
The Board has missed the mark in this case, albeit their service and good intentions are not in question. The standard that this Court has set recognizes the concept of salvation and rehabilitation. The Board’s de facto rule creates a circular path that is inescapable. Based upon its sliding scale of sin vs. salvation, the demonstration of rehabilitation becomes about impossible. Were it for the Board to say, a due process issue might be involved. But, the standard set by this Court is achievable and fair.
33 Based upon this Court’s consistent and oft-stated standard for rehabilitation under Rule 3-13, Arthur Garel has demonstrated by clear and convincing evidence, as a matter of law, and should be re-admitted to the Bar. The Board’s recommendation should be reversed.
Respectfully submitted,
Joseph P. Klock, Jr., FBN 156678 J. C. Antorcha, FBN 523305 STEEL HECTOR & DAVIS LLP 200 South Biscayne Boulevard 41st Floor Miami, Florida 33131-2398 Tel: 305.577.2877 Fax: 305.577.4452
John Weiss, FBN Weiss and Etkin 2937 Kerry Forest Parkway Suite B-2 Tallahassee, FL 32308-6825
Counsel for Arthur Garel, Applicant
By: ______Joseph P. Klock, Jr.
34 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Initial Brief was mailed to General Counsel for the Board of Bar Examiners, 1891 Eider Court,
Tallahassee, Florida 32399-1750 on this 13th day of March, 2003.
______JuanCarlos Antorcha
35 CERTIFICATE OF TYPE SIZE AND STYLE AND ANTI-VIRUS SCAN
Undersigned counsel does hereby certify that Respondent’s Reply
Brief is submitted in 14 point proportionately spaced Times New Roman font, and that the computer disk filed with this Brief has been scanned and found to be free of viruses by the computer system maintained by the firm through McFee.
______JuanCarlos Antorcha
MIA2001 195681v4
36