Florida Supreme Court Releases Rules For Bar Applicants To Practice – Strict Liability For Their Supervisors
As readers of my previous posts well know (Part 1 and Part 2), over 1,150 Florida Bar candidates have been left in a lurch because the July examination, which had been rescheduled to August 19, was cancelled on August 16 and is now going to be rescheduled to a day in October that has not yet been announced.
The applicants who are waiting to take the exam are all law school graduates who have presumably received certifications from the deans of their law schools to confirm that they have full law degrees and are of good personal and ethical standing, and therefore qualified and able to practice law in Florida.
As one would expect, we have received emails from a good many applicants, but also from the parents of applicants, who are generally in disbelief of the situation, and perhaps thought that their children were exaggerating or just being complaintive. The economic challenges are made worse by the loss of jobs that applicants had lined up with firms and entities that cannot wait longer to see if they will pass.
Several applicants have confirmed that the whole thing feels like a hazing process. Hazing was made illegal on undergraduate campuses, and barriers to entry are appropriate to some extent in all professions.
Hopefully there will be a national movement to make the bar examination more practical, so that the thousands of hours of preparation can involve memorizing laws and practices that can be more useful to the examinee and the tens of thousands of Floridians and others that examinees will represent and assist when they practice law for many decades to come.
The terrible ordeal now being suffered by 1,150 future lawyers may help “break the camel’s back” at some time in the future, so that changes can be made to save future generations of lawyers and citizens from a situation that can be made better.
In a video released on August 19, which can be viewed by clicking HERE, Chief Justice Canady of the Supreme Court appropriately apologized for the situation, and promised that there would be a provisional bar admission that would enable applicants to practice law until they are eventually admitted to the Florida Bar.
“We are seeking to mitigate the impact of this delay through the supervised practice program that we are instituting,” said Chief Justice Canady “but we are keenly aware that this program is a stopgap measure that will provide limited relief to a limited number of applicants.” I would not want Justice Canady’s job this year.
The publication from August 24 gave the Florida Board of Bar Examiners until August 31 to create and make available the application form. Much to everyone’s surprise, given the recent track record of the Florida Board of Bar Examiners, the form was released early and is available by clicking HERE. The form is in two parts and is meant to be filled out by both the graduate looking for temporary employment as well as the supervising attorney.
The rules and application for this provisional admission contain the following requirements, which are rightfully designed to protect the public, but some of the requirements took many by surprise and do not seem necessary, in my unqualified opinion, and the opinion of many of the 1,150.
1. The application has to be signed by a “supervising lawyer” who has at least 5 years’ experience, and agrees to be personally liable for any and all negligence or inappropriate acts of the candidate.
This strict liability requirement will cause most Florida lawyers to think twice or three times before agreeing to supervise a new Florida lawyer who is practicing law for the first time, and even lawyers who have passed the bar in a separate state but are now living in Florida and wish to practice.
When a lawyer works for a law firm and commits malpractice the law firm is responsible, but the other lawyers in the practice will not be held personally liable unless they engaged in negligent conduct themselves, which can include negligent hiring and failure to supervise a new lawyer.
It is unknown whether malpractice insurance carriers will cover this type of liability. Malpractice insurance policies commonly provide that the carrier will not be responsible for any liability that occurs by reason of a contractual arrangement entered into by the insured.
Agreeing to hire an individual who has not yet passed the bar exam and to be strictly liable for his or her negligence may be considered a separate agreement that would cause the liability not to be covered by malpractice insurance.
2. Another requirement is that the applicant must have passed the Multistate Professional Responsibility Examination (“MPRE”) or must be licensed to practice in another jurisdiction. For all but two U.S. jurisdictions (Wisconsin and Puerto Rico) passing the MPRE is required to be a member in good standing with the state’s bar association.
The National Conference of Bar Examiners (“NCBE”), who also put out the Multistate Bar Examination (“MBE”), have also had to restrict offerings of the MPRE because of COVID-19. This may create complications for graduates who have not taken the MPRE. All law schools offer ethics classes that go through much more detail than the relatively easy NCBE, but this is the luck of the draw for those who have already taken it. Given the supervision requirement and background checks that the Bar has already presumably completed, this requirement seems unnecessary.
3. Every graduate hoping to benefit from this program must also have received their character and fitness assessment from the Florida Board of Bar Examiners. The completion of these assessments (and most other processes involved in the Florida Bar admission process) have been slowed due to the spread of COVID-19 and the reduction in staff at the Florida Board of Bar Examiners. I am not aware of how many of these are still outstanding.
As a result of these new hurdles, many graduates cannot qualify for this provisional practice program for one reason or another, and must wait until after October (or whenever the test date will be) to receive their results (assuming they pass) to begin fulfilling the role of an attorney.
Even if a graduate is fortunate enough to qualify and find a seasoned attorney to assume responsibility and provide malpractice insurance, there are restrictions on what may be practiced.
A graduate’s participation in the program can be limited by the court or administrative tribunal in which a matter takes place. Though there has been no clarification on this matter, it is disturbing to many of these applicants that courts and administrative tribunals reserve the right to reduce a program participant’s involvement to that of a law clerk or legal assistant.
Hopefully the Florida Bar will issue guidelines on what these courts and tribunals are looking for with regards to the heavily-supervised provisional lawyers.
This program is quite similar to an existing program in Florida called the Certified Legal Intern (“CLI”) Program. Under the CLI Program, current law students are given the right to temporarily represent clients in matters so long as the students are under the supervision of an attorney licensed by the Florida Bar.
One interesting thing to note is that there are recent graduates who were cleared to temporarily practice under the CLI Program that are no longer able to practice under CLI, because they are not students, and cannot qualify for this new program.
It will be interesting to see how many applicants take advantage of this provisional practice opportunity. While this program does have its issues, it is a step in the right direction and it helps to show that the Florida Board of Bar Examiners and the Florida Supreme Court are actively looking for solutions that work for as many recent graduates as possible.
I have hired one of the 1,150 and am interviewing others. I will not ask our new hires to seek this provisional bar admission, and therefore they will not be able to directly advise clients, go to court, or hold themselves out as attorneys practicing law.
Instead, I will have to treat them as “law clerks” whereby they can assist with drafting, research, and clerical tasks under our direct supervision.
I was recently interviewed for radio and asked what my advice is for the applicants who find themselves in this situation. My answer was to try to be patient because in 5 to 10 to 20 years this will seem like a much less terrible ordeal than it does now, and most of the applicants will be stronger for it. The key is to get into a profession that they have already worked hard to join, and to then succeed both professionally and economically by helping others in a very interesting and rewarding career.
Some of the 1,150 will look back and see that this was the best thing that ever happened to them. They may find or rekindle life long relationships, read about an area of the law that gives them a better direction or more well focused professional goals, they may get involved in politics, or be hired on a temporary basis by a wonderful mentor to help light the path to a great professional experience. As a weathered lawyer once said to me in 1987, “don’t forget to smell the roses.” There are decades of hard deadlines, challenging events, and “being in the grind” waiting for successful professionals. Is 12 weeks off such a bad thing?
Always fight for your rights, but make the best of every experience.
And perhaps one of these lawyers will become the Chief Judge of the Florida Supreme Court someday and change these and many other rules for the better!