IN THE SUPREME COURT OF FLORIDA
FLORIDA BOARD OF BAR EXAMINERS )
RE: ARTHUR MICHAEL GAREL ) Case No. SC03-184
______) CONFIDENTIAL
RESPONSE TO APPLICANT'S INITIAL BRIEF
Submitted by:
FLORIDA BOARD OF BAR EXAMINERS MICHAEL J. KEANE, CHAIR
Kathryn E. Ressel Executive Director
Robert G. Blythe Deputy General Counsel Florida Board of Bar Examiners Tippin-Moore Building 1891 Eider Court Tallahassee, Florida 32399-1750 TABLE OF CONTENTS
PAGE
Table of Citations...... iii
Response to Applicant's Initial Brief...... 1
Jurisdiction...... 1
Preliminary Statement...... 1
Statement of the Case...... 2
Statement of the Facts...... 4
Summary of Argument...... 8
Argument...... 10
THE BOARD PROPERLY CONCLUDED THAT GAREL WAS NOT
PRESENTLY QUALIFIED FOR READMISSION TO THE FLORIDA BAR 10
A. Garel's Disqualifying Conduct...... 10
B. Garel's Insufficient Evidence of Rehabilitation..... 11
Conclusion...... 19
Certificate of Service...... 21 ii TABLE OF CITATIONS
CASES PAGE
Application of Taylor,
647 P.2d 462 (Ore. 1982)...... 19
Application of T.J.S.,
692 A.2d 498 (N.H. 1997)...... 16
Florida Board of Bar Examiners re: D.M.J.,
586 So.2d 1049 (Fla. 1991)...... 12,15
Florida Board of Bar Examiners re: J.A.S.,
655 So.2d 515 (Fla. 1995)...... 16
Florida Board of Bar Examiners re: J.C.B.,
655 So.2d 79 (Fla. 1995)...... 12
Florida Board of Bar Examiners re: J.J.T.,
761 So.2d 1094 (Fla. 2000)...... 12,13
Florida Board of Bar Examiners re: L.H.H.,
660 So.2d 1046 (Fla. 1995)...... 11,13
Florida Board of Bar Examiners re: M.L.B.,
776 So.2d 984 (Fla. 2000)...... 12 Florida Board of Bar Examiners re: P.T.R.,
662 So.2d 334 (Fla. 1995)...... 13
Florida Board of Bar Examiners re: W.H.V.D.,
653 So.2d 386 (Fla. 1995)...... 12
In re Alexander,
539 N.E.2d 1260 (Ill. 1989)...... 16
In re Childress,
561 N.E.2d 614 (Ill. 1990)...... 17
In re Manville,
494 A.2d 1289 (DCCA 1985)...... 17
In re Petition of Diez-Arguelles,
401 So.2d 1347 (Fla. 1981)...... 15
iii CASES PAGE
In the Matter of Application of Matthews,
462 A.2d 165 (N.J. 1983)...... 17
In the Matter of Gutman,
599 N.E.2d 604 (Ind. 1992)...... 17
In the Matter of the Reinstatement of Hanlon,
865 P.2d 1228 (Okla. 1993)...... 16
Pacheco v. State Bar of California,
791 P.2d 1138 (Cal. 1987)...... 16
Reinstatement of Montgomery,
612 N.W.2d 278 (N.D. 2000)...... 19
The Florida Bar v. Breed,
378 So.2d 783 (Fla. 1979)...... 10
Rules of the Supreme Court Relating to Admissions to the Bar
Rule 3-40.1...... 1
Rule 2-13.4...... 2
Rule 2-23.6(d)...... 3 Rule 1-14.1...... 18
iv RESPONSE TO APPLICANT'S INITIAL BRIEF
The Florida Board of Bar Examiners, by and through its undersigned attorney, files its Response to the Initial Brief filed on behalf of the applicant Arthur Michael Garel (hereinafter "Garel").
JURISDICTION
The Court has jurisdiction over this matter pursuant to Article V,
Section 15 of the Florida Constitution and Rule 3-40.1 of the Rules of the
Supreme Court Relating to Admissions to the Bar (hereinafter referred to as
"Rules").
PRELIMINARY STATEMENT
The Board will use the following designations:
(Br.) references Garel's Initial Brief.
(T) references the transcript of Garel's formal hearing held October 17,
2002.
(FF) references the Board's Findings of Fact and Conclusions of Law dated January 13, 2003.
(BE) references the exhibits introduced into the record by the Board at the formal hearing.
(OGCE) references the exhibits introduced into the record by the Office of General Counsel at the formal hearing. STATEMENT OF THE CASE
The Board accepts the Statement of the Case as presented by Garel except for the arguments and conclusions contained therein and with the following additions and noted objection.
Garel was initially admitted to The Florida Bar in 1973 (BE 4, p. 30).
By Order dated February 11, 1994, the Supreme Court of Florida granted The
Florida Bar's Petition for Emergency Suspension of Garel, suspending Garel from the practice of law in Florida until further order of the Court. (OGCE
7). By Order dated March 2, 1995, the Supreme Court of Florida granted
Garel's uncontested petition to resign from The Florida Bar in lieu of disciplinary proceedings, making the effective date of the resignation nunc pro tunc to March 13, 1994, the effective date of Garel's emergency suspension.
On October 5, 1995, Garel entered a plea of guilty to a variety of criminal charges stemming from the same conduct which led to his emergency suspension and resignation in lieu of disciplinary proceedings from The
Florida Bar. (OGCE 6). Adjudication was withheld, and the applicant was placed on probation for ten years. (Id.).
Garel's probation was terminated in January 2001. (BE 4 at Amendment dated March 14, 2001). Under the operation of Rule 2-13.4 of the Rules, Garel was not eligible to apply for readmission to The Florida Bar until he was released from his felony probation. On January 10, 2001, Garel executed under oath his Application for Admission to The Florida Bar and this Application was received in the Board's administrative office January 16, 2001, within days of
2 Garel's eligibility to reapply for admission. (BE 4, pp. 1, 34).1
Garel appeared before the Board for an investigative hearing on January
18, 2002. (BE 5). Specifications were filed against Garel on March 13, 2002.
(BE 2). The public formal hearing was held on October 17, 2002, and the
Board's Findings of Fact, Conclusions of Law and Recommendation were issued
January 13, 2003, recommending that Garel not be admitted to The Florida Bar and that he be disqualified from reapplying for admission for two years from the date of the Findings under the provisions of Rule 3-23.6(d) of the Rules.
(FF 3, 26).
The Board objects to the statement in Garel's Statement of the Case that
"the recitation and treatment of [the charges which led to Garel's resignation in lieu of disciplinary proceedings] which occupy over 90 percent of the text of the Findings. . . ." (Br. 1). It is inaccurate to say that over 90 percent of the Findings deal with the recitation and treatment of Garel's misconduct.2
STATEMENT OF THE FACTS
The Board accepts the Statement of the Facts as presented by Garel except for the arguments and conclusions contained therein and with the following additions and noted objections.
1Garel incorrectly states in his Initial Brief that he "did not apply until eight years after his disbarment, despite the fact that he could have within three years" (Br. pp. 16-17)
2The Findings of Fact are just over 25 pages long. For this statement to be accurate, less than 3 pages would be available for discussion of matters other than Garel's criminal conduct. Much more than 3 pages are devoted to matters other than Garel's criminal conduct. For example, approximately seven pages (FF 13-20) are devoted to summarizing Garel's evidence of rehabilitation.
3 During the summer of 1992, after being an attorney for almost 19 years,
Garel stole approximately $48,000.00 from his law firm's client trust account by writing checks to himself. (BE 5, p. 9; T 216). When this information was discovered by Henry Blier, the firm's accountant, Mr. Blier confronted Garel, telling Garel that the funds had to be replaced immediately. (T 171-172). In approximately September 1992, Garel cashed out his interest in the law firm's retirement account to replace the money stolen from the client trust account.
(BE 5, p. 9; T 171-172, 216).
As a result of Garel's getting caught stealing money from the trust account, a decision was made to remove Garel as a signatory on all law firm accounts. (BE 5, p. 9). In addition, Mr. Blier took Garel to a Gamblers
Anonymous meeting, and Garel continued to attend those meetings from September
1992 through December 1992. (T 175, 216). Garel testified at the formal hearing that he did not gamble while attending Gamblers Anonymous meetings, but Garel started gambling again in January 1993 after he quit attending
Gamblers Anonymous meetings. (T 216).
In early 1993, Garel stole approximately $60,000.00 from a
4 trust fund for his son Michael.3 (T 217). Garel used this money to pay debts to bookmakers to whom he owed money. (T 219). After stealing money from his son's trust fund, Garel returned to stealing money from his law firm's client trust accounts. (Id.). Now, because he was no longer a signatory on the trust account, Garel chose to forge his partner's signature on trust account checks made payable to Garel to steal the money. (Id.).
Garel also took the monthly account statements so his partner and the firm's bookkeeper would not see that he was stealing money from the trust account.
(BE 5, p. 12).
Garel continued to steal money from the client trust account by forging checks until he was caught in late summer 1993. (T 28-29, 220). In total,
Garel forged his partner's signature on 18 to 20 checks totalling approximately $187,500.00. (BE 5, p. 16; T 220).
Once these thefts from the law firm's trust account were discovered,
Garel started stealing money from clients before settlement checks were deposited in the firm's trust account by forging clients' names on settlement checks which were then deposited directly into Garel's personal account. (T
221). He continued this method of theft from October 1993 through December
1993. (Id.). Garel stole a total of $134,900.00
from five of his clients using this means of theft. (BE 5, pp. 13-15; OGCE 4 and 6). These five clients were the only clients of Garel whose claims were settled during this time frame. (T 266). In other words, Garel stole the settlement money from every possible client. (Id.). In total, in 1992 and
1993, Garel stole approximately $430,400.00 from his law firm's client trust
3The corpus of the trust fund represented a settlement reached in 1985 for claims made by Garel's son for injuries suffered in an accident at the Orange Bowl. (T 218).
5 account, directly from clients, or from his son's trust fund.
The Board objects to the statement in Garel's Statement of the Facts that "[c]learly the Bar recognized that [Garel's] misconduct was a result of his impairments." (Br. p. 5). There is no evidence in the record which states the position taken by The Florida Bar with regard to whether Garel's criminal conduct was a result of his impairments. (See OGCE 8). The Florida
Bar may have had any number of reasons to decide not to oppose Garel's petition to resign in lieu of disciplinary proceedings.4 Speculation as to the Bar's motive is certainly not fact in the record, and is, at best, argument.
The Board also objects to the statement in Garel's Statement of the
Facts that Garel "sponsors over 20 people" in AA, NA and GA as this statement is inconsistent with the record of the formal hearing. (Br. p. 8). At the formal hearing,
Garel testified that he has sponsored (past tense) over 20 people in AA or GA.
(T 237-238). The fact that Garel has sponsored this number of individuals over a period of time and not all currently is reiterated in his counsel's closing argument at the formal hearing. (T 312).
Finally, the Board also objects to the statement in Garel's Statement of the Facts that "[Garel] has helped in the healing of suffering children and adults who also suffer from bipolar disease and compulsive behavior." (Br. p.
11). Garel cites no part of the record that would contain evidence in support
4For example, The Florida Bar may have decided, in the interest of administrative and/or judicial economy, to let this case be settled in the manner suggested by Garel expecting that he would be prohibited from reapplying for admission to the Bar for longer than three years (which turned out to be what happened) because of the criminal prosecution of his conduct.
6 of this statement, and the undersigned counsel is not aware of any record evidence that Garel has participated in any way in the treatment of individuals suffering from bipolar disease and/or compulsive behavior.
7 SUMMARY OF ARGUMENT
Over a period of two years, as a practicing attorney, Garel engaged in a pattern of stealing money from clients and a family member utilizing a variety of methods. Garel eventually stole over $430,000.00 for the purpose of paying gambling debts. Garel would utilize a method of theft until that source of money was gone, or he got caught. Once caught, Garel found a new way to steal money until he was eventually removed from the practice of law.
Stealing money from clients strikes at the very foundation of the legal profession. Having repeatedly stolen money from clients as a licensed attorney, Garel faces an extremely heavy burden in establishing that he is sufficiently rehabilitated to justify readmission to the Bar.
While Garel complains repeatedly in his Initial Brief about the Board's focus on his criminal conduct which led to his resignation from the Bar, the clear precedent from case law from this Court mandates that the Board start its evaluation of rehabilitation with the seriousness of the disqualifying conduct. Stealing money from clients has been described as a "capital offense" for attorneys. There were also additional aggravating factors associated with Garel's thefts.
The thefts took place over an extended period of time, and were planned rather than a spur of the moment action. Garel took steps to conceal his thefts, and the thefts continued until he was caught. Garel was in his forties when he committed these thefts, and he had been a member of The
Florida Bar for almost 20 years.
The seriousness of Garel's criminal conduct is central to the evaluation of his rehabilitation. In Florida, as in many other states, the seriousness of the underlying disqualifying conduct is paramount in establishing the extent of rehabilitation required.
8 The standard for readmission for Garel is appropriately set at a very high level because he is a former member of The Florida Bar who egregiously violated the duty owed to numerous clients. This standard is not impossible to meet. Perhaps with more time to continue to show his dedication to reformation, Garel may be able to reapply in two years and establish that he has been sufficiently rehabilitated so that his readmission to the Bar would not create an undue threat to the public.
9 ARGUMENT
THE BOARD PROPERLY CONCLUDED THAT GAREL WAS NOT PRESENTLY QUALIFIED FOR READMISSION TO THE FLORIDA BAR
A. Garel's Disqualifying Conduct
The underlying facts of this case are not in dispute. In 1992 and 1993
Garel participated in a persistent pattern of stealing money from clients to pay his personal gambling debts. Garel would pick a modus of theft and persist until caught. He would then move to another method of stealing money.
First, Garel wrote checks from his law firm's client trust account to himself. (BE 5, p. 9; T 216). When he was caught doing that, and removed as signatory on the account, he illegally cleaned out his son's trust fund. (T
217). Garel then went back to stealing money from the firm's trust account, but now had to forge his partner's signature on those checks to steal the money because Garel was no longer authorized to sign checks on that account.
(Id.). To cover his theft, Garel intercepted the account statements so they would not be read by either his partner or the firm's bookkeeper. (BE 5, p.
12). He continued doing this until caught, then switched to stealing client money before it was ever placed in the trust account by forging the clients' names on settlement checks and depositing those checks directly to his personal account. (T 221).
Garel repeatedly violated the fiduciary duty he had to his clients in order to feed his own addiction to gambling. There is no more serious offense for an attorney than stealing money from clients. To steal money from a client strikes at the very core of our profession. In The Florida Bar v.
Breed, 378 So.2d 783, 784 (Fla. 1979) this Court cited with approval the referee's observation that "[t]he willful misappropriation of client funds should be the Bar's equivalent of a capital offense. There should be no excuse."
10 In its Conclusions of Law, the Board enumerated additional factors which further aggravated the seriousness of Garel's misconduct:
Weighed against this record of rehabilitation is the seriousness of the applicant's past misconduct. The thefts took place over an extended period of time, and were planned rather than spur of the moment actions. Once the thefts took place, the applicant took affirmative steps to conceal his criminal conduct by intercepting the trust account statements before they could be seen by his partner or the firm's bookkeeper. This criminal conduct took place when the applicant was in his forties and had been practicing law for almost twenty years. More importantly, the applicant's misconduct goes to the very foundation of the profession: the duty and responsibility an attorney has towards clients. In 1992 and 1993, based upon the record before the Board, it appears the applicant took every opportunity he had to steal from clients, family members and his law firm's trust account in order to pay gambling debts. While the applicant's substance abuse, compulsive gambling and bipolar disorder may help explain the conduct, they do not excuse the conduct.
(FF 24-25).
B. Garel's Insufficient Evidence of Rehabilitation
Throughout his Initial Brief, Garel castigates the Board for focusing on the criminal conduct which led to Garel's resignation from The Florida Bar in lieu of disciplinary proceedings. (See, e.g. Br. 1, 16, 17, 18, 26, 27, 32).
Such argument ignores the clear precedent from this Court in cases involving lawyers seeking readmission who were either disbarred or resigned in lieu of disciplinary proceedings.
In 1995, this Court observed in Florida Board of Bar Examiners re:
L.H.H., 660 So.2d 1046, 1048 (Fla. 1995) that "L.H.H.'s disbarment alone is disqualifying unless he can show clear and convincing evidence of rehabilitation." Five years later, in the most recent published opinion for a formerly disbarred applicant, this Court specifically stated that "in evaluating an applicant's showing of rehabilitation, the nature of the past misconduct cannot be disregarded." Florida Board of Bar Examiners re: J.J.T.,
11 761 So.2d 1094 (Fla. 2000).5 The attention paid by the Board to the conduct which led to Garel's resignation from the Bar is nothing more than a diligent attempt by the Board, in the discharge of its responsibility to protect the public, to comply with the guidance provided by this Court in prior decisions.
This Court has published four opinions in cases involving attorneys who had been either disbarred or resigned in lieu of disciplinary proceedings and were seeking readmission. In three cases, this Court affirmed the Board's recommendation that readmission to the Bar be denied. See Florida Board of
Bar Examiners re: J.C.B., 655 So.2d 79 (Fla. 1995), Florida
Board of Bar Examiners re: L.H.H., supra, Florida Board of Bar Examiners re:
J.J.T., supra.
In one instance, this Court disagreed with the Board's recommendation that a disbarred attorney not be readmitted. In Florida Board of Bar
Examiners re: P.T.R., 662 So.2d 334 (Fla. 1995), P.T.R. had been appointed as the successor representative to an estate in which the deceased had no heirs.
At the suggestion of another attorney in his firm, P.T.R. used a fictitious heir to prevent the estate from escheating to the state. In 1980, P.T.R. removed $7,082.71 from the estate account and split this money with the attorney who suggested using a fictitious heir.
In 1985, P.T.R. was charged with third degree theft. In 1986, he pled
5These holdings are consistent with this Court's prior decisions involving applicants who are not former attorneys in Florida seeking readmission who were also attempting to establish rehabilitation from prior disqualifying conduct. See, e.g., Florida Board of Bar Examiners re: D.M.J., 586 So.2d 1049, 1050 (Fla. 1991) ("The nature and seriousness of the offense are to be weighed against the evidence of rehabilitation."); Florida Board of Bar Examiners re: W.H.V.D., 653 So.2d 386, 388 (Fla. 1995) ("In evaluating an applicant's showing of rehabilitation, we cannot disregard the nature of past misconduct."). See also, Florida Board of Bar Examiners re: M.L.B., 766 So.2d 994 (Fla. 2000).
12 nolo contendere to this charge. Adjudication was withheld and P.T.R. was placed on probation for five years. P.T.R.'s probation was terminated early by court order in 1990. P.T.R. voluntarily withdrew from the practice of law in 1986 and his eventual disbarment was applied retroactively to the date of his withdrawal. P.T.R. applied for readmission in 1992.
This Court found that P.T.R. had established his rehabilitation by clear and convincing evidence. P.T.R.'s evidence of rehabilitation included character evidence in the form of six depositions, four affidavits and live testimony from three witnesses, including P.T.R.'s ex-wife (who was married to
P.T.R. at the time of his theft). P.T.R. also provided evidence of his involvement in his community which included volunteer work in his homeowners' association, donating blood (which was particularly significant because P.T.R. had a rare blood type), participating as a treasurer, coach and umpire for his son's Little League, travelling to his daughter's swim meets and teaching martial arts to children for free.
The Court described P.T.R.'s misconduct as "extremely serious." Id. at
336. The Board had argued that P.T.R.'s evidence of rehabilitation was insufficient because the positive actions in his community (except for donating blood) had also benefitted P.T.R., his family and his property. The
Court therefore explained the narrow issue to be decided in that case:
Inasmuch as the Board does not contest the "positive actions" suggested by P.T.R. except that they benefit him, it would appear that the Court is called upon to determine whether otherwise acceptable "positive actions" became unacceptable because there was a benefit to P.T.R. [footnote omitted].
Id. at 337. The Court concluded that "[t]he fact that a particular type of service benefits both the community and the applicant does not necessarily lessen the value of the service." Id. at 338. Significantly, the Court went on to note that P.T.R.'s misconduct was a single incident 15 years prior to
13 the Court's decision.
Garel's criminal conduct is much more serious than the conduct which led to P.T.R.'s disbarment. P.T.R. stole $7,082.71 in a one-time incident. Garel stole over $430,000.00 over a period of two years, engaging in thefts or at least 25 different occasions.6 P.T.R. had been an attorney in
Florida for five years when he stole money. Garel had been an attorney in
Florida for almost 19 years when he committed his first theft. Finally, the
"victim" of P.T.R.'s theft was the State of Florida, to which the money P.T.R. stole would have escheated. Garel's victims were clients to whom he owed a particular fiduciary duty.7
In his Initial Brief, Garel also cites other cases arguing that his showing of rehabilitation exceeds that shown in the prior cases. In each of these cases, the applicant was not a former attorney who had been removed from the practice of law for misconduct, and the misconduct involved in those cases was not as serious as Garel's criminal conduct, as it did not strike at the very heart of the legal profession.
In Florida Board of Bar Examiners re: D.M.J. 586 So.2d 1049 (Fla. 1991)8 the applicant had been charged with conspiracy to import cocaine twelve years
6Garel forged at least eighteen checks from the firm's trust account in 1993, cleaned out his son's trust fund, stole the settlement money from five clients prior to the money being deposited in the firm's trust account, and in 1992 had stolen money from his firm's trust account be writing an unknown numbers of checks to himself.
7An indirect victim of Garel's thefts was Jeffrey Jacobs, Esq., Garel's partner in his law firm.
8In his Initial Brief, Garel states that in this case "the Court readmitted the applicant." (Br. p. 25). This is not accurate. D.M.J. had not been previously admitted to The Florida Bar.
14 prior to the Court's decision. In In re Petition of Diez-Arguelles, 401 So.2d
1347 (Fla. 1981) the applicant had engaged in the sale of cocaine on approximately fifteen occasions while an
undergraduate student. The applicant in Florida Board of Bar Examiners re:
J.A.S., 658 So.2d 515 (Fla. 1995) had engaged in a pattern of criminal, illegal or improper conduct, including a conviction for loitering with intent to use heroin. This misconduct predated the Court's decision by at least twelve years.
Evaluation of an applicant's rehabilitation does not take place in a vacuum, applying a one-size-fits-all yardstick to every case. It is intuitive that any evaluation of rehabilitation must start with consideration of the seriousness of the underlying disqualifying conduct. Florida is not alone in applying this standard. See, e.g., Pacheco v. State Bar of California, 741
P.2d 1138, 1140 (Cal. 1987) ("rehabilitation requires a consideration of those offenses from which one has allegedly been rehabilitated."); In re Alexander,
539 N.E.2d 1260, 1264 (Ill. 1989) ("The first factor to be considered . . . is the nature of the misconduct for which petitioner was disciplined, traditionally a very important factor."); In the Matter of the Reinstatement of Hanlon, 865 P.2d 1228, 1230-1231 (Okla. 1993) ("Seriousness of the original offense is one of the factors to be considered, and extent of rehabilitation is another."); and Application of T.J.S., 692 A.2d 498, 500 (N.H. 1997) ("The nature of the wrong committed, however, is central to the determination of present character and fitness to practice law.").
The Supreme Court of Indiana used the following language to describe the process of assessing the rehabilitation of someone who had engaged in grave wrongdoing:
15 We agree with the view that this examination is a balancing process in which on one side of the scale we place the seriousness of the misconduct and on the other, Petitioner's subsequent conduct and his present character. The more serious the misconduct, the greater its negative impact on future rehabilitation and eventual reinstatement, the greater Petitioner's burden of proof to overcome the implication of unfitness which is conjured by the misconduct. The seriousness of past misconduct is unquestionably an important consideration which cannot be eliminated by subsequent exemplary conduct.
In the Matter of Gutman, 599 N.E.2d 604, 608 (Ind. 1992)[citations omitted].
Stated differently, the lower an individual sinks in his or her misconduct, the higher such individual will need to ascend in convincing the Board and the
Court of his or her reformation.
In some jurisdictions courts have gone as far as saying that in cases of extremely serious misconduct, establishing rehabilitation may be virtually impossible. In 1983 the Supreme Court of New Jersey observed:
The more serious the misconduct, the greater the showing of rehabilitation that will be required. In certain instances, evidence of a positive kind including affirmative acts demonstrating personal reform and improvement will be required in order to establish the requisite degree of rehabilitation. However, it must be recognized that in the case of extremely damning past misconduct, a showing of rehabilitation may be virtually impossible to make. In all cases, the need to ensure the legitimacy of the judicial process remains paramount.
In the Matter of the Application of Matthews, 462 A.2d 165, 176 (N.J. 1983)
[citations omitted]. See also In re Manville, 494 A.2d 1289, 1295 (DCCA 1985) and In re Childress, 561 N.E.2d 614, 620 (Ill. 1990) (both citing Matthews with approval).
Garel does not face an impossible standard. The Board has, however, appropriately weighed the seriousness of Garel's criminal conduct against the extent of his rehabilitation, and has decided that in the interest of protecting the public, Garel has not yet established his rehabilitation by clear and convincing evidence. The Board explained this in its Conclusions of
Law:
16 Rule 1-14.1 of the Rules succinctly states the purpose of the Board's inquiry into an applicant's character and fitness for admission to the Bar: "to protect the public and safeguard the judicial system." Appropriately, in the case of an applicant who once practiced law and has been removed from the ranks of the Bar because he violated a fundamental duty of an attorney, the standard for readmission is extraordinarily high. In such a case, the Board needs to be clearly convinced of an applicant's rehabilitation before recommending readmission to The Florida Bar. Anything less would compromise the Board's duty to "protect the public and safeguard the judicial system." (Rule 1-14.1 of the Rules). In the present case, the Board is not clearly convinced that this applicant has engaged in enough rehabilitation to establish that he should be readmitted. The applicant needs to spend more time establishing his rehabilitation.
(FF, p. 25).
Perhaps the most persuasive evidence in the record of the enormous burden faced by Garel in establishing his rehabilitation from his criminal conduct is his own closing statement at his investigative hearing:9 "If I sat where you are sitting now, I would never give me my license back because I don't think any lawyer who steals money should ever
get their license back." (BE 5, p. 51). Fortunately for Garel, that is not the state of the law. But the enormity of the task of establishing rehabilitation is still there.
CONCLUSION
A disbarred lawyer (or one who resigned in lieu of almost certain disbarment) faces a heavy burden of establishing rehabilitation for a very good reason: protection of the public. As observed by the Supreme Court of
North Dakota in Reinstatement of Montgomery, 612 N.W.2d 278 (N.D. 2000):
In assessing a petition for reinstatement, our primary concern is
9Garel made this statement voluntarily at the end of his investigative hearing. He was not responding to a question from the Board. (BE 5, p. 51)
17 not the difficulty faced by the disbarred attorney, but the protection of the public. Montgomery is not applying as a new candidate for admission to the bar; having once been disbarred, he must establish sufficient proof of good character to outweigh the evidence of his former misconduct. Montgomery has been once entrusted with the privilege of practicing law, and he abused that privilege and caused substantial harm to his clients and the public. A disbarred attorney seeking reinstatement does not start with a clean slate, but carries the baggage of his prior misconduct with him. The standards for reinstatement are intentionally set very high, in order to ensure the public is protected. Once disbarred, an attorney will be reinstated only when he can establish by clear and convincing evidence that, in spite of his prior misconduct, he is now worthy of the public trust inherent in the office of licensed attorney.
Id. at 283 [citations omitted].
In the final analysis, this case, as with all Bar admission cases, boils down to a question of protecting the public. As such, "[d]oubt of consequence must be resolved in favor of the protection of the public." Application of
Taylor, 647 P.2d 462, 467 (Ore. 1982). Contrary to Garel's assertion in his
Initial Brief, the Board is not applying a "sliding scale of sin vs. salvation" making "the demonstration of rehabilitation . . . about impossible." (Br. p. 32). The Board is properly holding Garel to a stringent standard of rehabilitation in light of his prior repeated violations of trust as a member of the Bar.
Garel is not forever excluded from rejoining the ranks of The Florida
Bar. The Board has acknowledged the efforts he has made toward rehabilitation, and in its Findings urged him to continue those efforts. (FF, p. 24). Garel can reapply for admission to the Bar in January 2005 with an eye toward making a stronger case that he is fully rehabilitated and deserving of readmission to the Bar.
The Board requests the Court to affirm the Board's Findings of Fact,
Conclusions of Law and Recommendation that Garel not be readmitted to The
Florida Bar at this time.
18 DATED this 28th day of April, 2003.
Respectfully submitted,
FLORIDA BOARD OF BAR EXAMINERS MICHAEL J. KEANE, CHAIR
Kathryn E. Ressel Executive Director
By: ______Robert G. Blythe Deputy General Counsel Florida Board of Bar Examiners 1891 Eider Court Tallahassee, Florida 32399-1750 (904) 487-1292 Florida Bar # 353061
19 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Response to Petition for Admission has been served by U. S. Mail this 28th day of April 2003 to: Joseph P. Klock, Jr., Esq. and JuanCarlos Antorcha, Esq., Steel, Hector & Davis, LLP, 200 South Biscayne Boulevard, 41st Floor, Miami, Florida 33131-2398 and John A. Weiss, Esq., Weiss and Etkin, 2937 Kerry Forest Parkway, Suite B-2, Tallahassee, Florida 32308-6825.
______Robert G. Blythe
CERTIFICATE OF TYPE SIZE AND STYLE
I HEREBY CERTIFY that the size and style of type used in this Response is proportionally spaced 10 point Courier and that the computer disk filed with this Response has been scanned and found to be free from viruses by Norton Anti-Virus.
______Robert G. Blythe
20