Exploring the Roles of the Florida Board of Bar Examiners

Episode Notes

Transcript

The Florida Bar Podcast

Exploring the Roles of the Florida Board of Bar Examiners

01/29/2019

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Christine Bilbrey: Hello and welcome to The Florida Bar Podcast, brought to you by LegalFuel: The Practice Resource Center of The Florida Bar on Legal Talk Network. We’re so glad you’re joining us.

This is Christine Bilbrey. I’m a Senior Practice Management Advisor at The Florida Bar and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.

Karla Eckardt: Hello. I’m Karla Eckardt, I’m a Practice Management Advisor at The Florida Bar and a co-host of today’s podcast. Our goal at The Practice Resource Center is to assist Florida attorneys with running the business side of their law practices. We focus on a different topic each month and carry that theme through our website with related tips, videos and articles.

Christine Bilbrey: So this month we are discussing the Florida Board of Bar Examiners, and joining us today are Missy Gavagni, Executive Director of the Florida Board of Bar Examiners, and Scott Baena, Chair of the Florida Board of Bar Examiners.

Missy Gavagni has served as the Executive Director of the Florida Board of Bar Examiners in Tallahassee since 2006. From 1995 through 2006, she served as Director of Examinations for the Board, supervising the preparation, administration and grading of the general bar examination to over 5,000 applicants annually.

She began her career at the Florida Board of Bar Examiners in 1989 as an investigative analyst. She has served as the Chair of the Council of Bar Admission Administrators and currently serves as a member of the Florida Bar Student Education and Admission to the Bar Committee and the Standing Committee on Professionalism, the Supreme Court of Florida’s Commission on Professionalism and Civility and she is also the 2018-2019 Chair of the National Conference of Bar Examiners.

Scott Baena began his term as Chair of the Florida Board of Bar Examiners this past November and will serve until October of 2019. His year-long term as Chair culminates five years of board of Bar Examiners service that began when the Supreme Court appointed him in 2014. He was previously on the Florida Bar Board of Governors and served on the Florida Bar Foundation’s Board from 1997 through 2000.

Scott has also served as the Chair of the Business Law Section and currently serves on the Senior Lawyers Committee of the Florida Bar. He attended George Washington University where he received his BBA and Juris Doctor degrees. Scott is a founding partner in Bilzin Sumberg Baena Price & Axelrod in Miami.

Welcome to the show Missy and Scott.

Scott Baena: Thank you.

Missy Gavagni: Thank you very much for having us.

Karla Eckardt: It’s quite the honor.

Christine Bilbrey: So we find that many people are not aware that The Florida Bar, which is where Karla and I work, and the Florida Board of Bar Examiners are actually two separate entities. Can you describe the main functions of the Florida Board of Bar Examiners for our listeners?

Missy Gavagni: Sure. We have that confusion regularly at our office as well. The Florida Board of Bar Examiners is an agency of the Supreme Court. It was created back in 1955 to implement the rules regulating Bar admission. So everything related to somebody coming into Florida, wanting to practice in Florida and wanting to be admitted to the Florida Bar goes through the Florida Board of Bar Examiners.

Our main functions are to complete a character and fitness investigation of everybody who is applying for admission to the Florida Bar and then to administer and grade the Florida Bar Examination.

Christine Bilbrey: Great. And so the flip-side of that is if you read the Florida Bar’s core functions we are here to regulate the practice of law in Florida, ensure the highest standards of legal professionalism in Florida and protect the public by prosecuting unethical attorneys and preventing the unlicensed practice of law.

So you get them first and then — then we get them so — and so when I look at your website it looks like the Board has a lot of responsibilities on your end of things. It says that you have to make sure that the applicants meet the requirements on character, fitness, education, all these different things.

Missy Gavagni: Technical competence.

Christine Bilbrey: Yes, so when you’re — it’s saying the Board does this. I know the Board is very busy but do you have a large staff at the Board of Bar Examiners? Do you have the people that are doing this on a day-to-day basis full-time?

Missy Gavagni: So our office is located in Tallahassee, Florida. We have a staff of about 50 employees that work full-time. The majority of their time is spent year-round completing the character and fitness investigations.

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And then we administer the Bar exam twice a year, so for the months leading up to the February in the July Bar exam a good bit of our time is focused on preparing for the administration and then the grading that follows.

Christine Bilbrey: And then what specific roles, Scott, do the Board members, what are they required to do in that role?

Scott Baena: The Board members actually spend most of their time dealing with character and fitness investigations and determinations. We review those files that are identified by Bar staff as having some feature to them, some occurrence in the applicant’s past that warrants further investigation.

We operate as three-person character and fitness committees, those committees will make recommendations as to the disposition of those cases, some will go to investigative hearings, some will be cleared and some may require further investigation.

Once they pass through that process, the cases may be diverted to more formal hearings after the issuance of specifications based upon the investigation that was performed by the Board. The Board members will sit as a Panel and hear those cases as well.

On the exam side, Board members may be involved through membership on a questions committee with the development of questions that are posed on the Bar exam. We build up an inventory of those questions and they will inevitably be asked to attend the exam and proctor it. And in addition, participate in grading sessions where the readers that we employ to review the exams attempt to develop a rhythm, if you will, with how to score the examinations.

Karla Eckardt: So speaking about the exam, you mentioned you develop the questions. How often is the Bar exam updated and do any rule changes affect the questions while being developed?

Scott Baena: Rule and law changes are critical to the development of questions. As the law changes we obviously need to either revise or reject questions that were based on formal law. As I said develop an inventory so questions could be sitting in the hopper waiting to be asked for quite some time, and there is the possibility that the law will change and we do address that.

Christine Bilbrey: I also read where you said that — you said I think the real accomplishment that we’ve had in the four years, I’ve been on the Board is moving applications through the process much more quickly. If a person has sat for the exam, how long does the rest of the process take generally?

Scott Baena: Well, the demarcation point really from our standpoint is much earlier than that. We start measuring the time it takes the process from the time an application is filed. By the time somebody has taken the Bar exam in all likelihood, they’ve been cleared for character and fitness and once they take the Bar exam at that point, all they are waiting for are their grades. We process grades very quickly.

I alluded earlier to the grading sessions that we have those actually happen the same week that the examination is administered and our scoring begins that same week. On the multi-state portion of the exam, which is developed for us and other jurisdictions that embrace it by the National Conference of Bar Examiners, they grade that exam. And so, we’re at their pleasure and I think we obviously are able to move ours a little bit faster than theirs.

Karla Eckardt: Right.

Christine Bilbrey: So a person is applying are they a 1L, they are a 2L, so they’re going to start the application process and you’re already going to be doing their background check. Do they know if there are problems in their background that you are looking into before they ever sit for the exam?

Scott Baena: Yes, they ordinarily do. If there is a problem, they will ordinarily know about it.

Karla Eckardt: Fantastic.

Scott Baena: They might not be able to take the exam until the problem is corrected.

Christine Bilbrey: Okay.

Karla Eckardt: Okay, right, okay and speaking again about the exam, we have members calling to ask for their scores because they obviously don’t understand the division between the Board of Bar Examiners and Florida Bar. So what information does the Board of Bar Examiners maintain and what data is then transmitted to the Bar with regard to the exam?

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Missy Gavagni: So for applicants if they would like to get scores because we will report their scores when we release them to them and all applicants will receive their scaled scores on both components of the exam whether it’s the Florida portion or the multi-state Bar exam portion, they receive those scores directly from us when we release the results.

If down the road somebody who took the exam and previously wants to obtain that information, they can write to our office and give us the date that they took the exam and ask us for that information. We will research it and provide that information in the future.

What we maintain in our office is all of the information regarding the character and fitness investigation and those Bar exam results, they have different retention policies, but when we recommend somebody for admission because the Florida Board of Bar Examiners does not admit anybody to the Florida Bar that’s the Supreme Court of Florida’s jurisdiction.

So we will make a recommendation to the Supreme Court, when the Supreme Court approves those recommendations then we send the oath of attorney to the applicants, they execute it and then we will report their name, their contact information, we then submit that information to the Florida Bar so that you all have that information for membership records and to be able to issue to the newly licensed attorney their Florida Bar number.

Christine Bilbrey: And that’s when our relationship with them begins. So I’m glad that you made that point that it also travels through the Supreme Court. I serve as the Bar Staff Person for The Mental Health & Wellness of Florida Lawyers Committee, so in that capacity we’ve had quite a number of law students who communicated that they were apprehensive about seeking counseling because they didn’t know how that would impact the Bar Examiner’s character and fitness screening of the applicants, this came up over-and-over again.

And Scott, I read an article where you stated no law student should avoid mental health counseling because they are concerned about how it will affect the Bar admission process. What does the Florida Bar application ask about an applicant’s mental health and I want to point out that there has been a clarification so a little bit different wording on the application now, can you talk to our listeners about that?

Scott Baena: Sure, just recently we amended our application to deal with the situation that you alluded to and that is people not seeking treatment for fear that they need to disclose that to us and that disclosure will impair or disable their application. So the point of the revision was to make it absolutely clear that first we encourage treatment of anybody that requires it. And second that there are conditions, mental conditions for which treatment is sought that we are not even interested in being apprised about.

We do not seek information in respect of anxiety treatment, stress treatment, grief counseling. What we are more concerned about are psychotic disorders, like schizophrenia, mood disorders, bipolar disorders, major depressive disorders, conditions that could impair an applicant’s ability to practice law. Those they are required by the new question to advise us of having received any treatment for.

Christine Bilbrey: Perfect and so and I think that this is one of those things that everyone talks about. If you are practicing law you are probably experiencing stress and anxiety.

Karla Eckardt: If you are a law student you are experiencing stress and anxiety —

Christine Bilbrey: Right.

Karla Eckardt: So, I mean, in any grief counseling that’s just life.

Christine Bilbrey: Exactly, yeah. And the other thing that plagues some attorneys is substance abuse that comes up a lot. So what is the Florida Bar application asking about substance abuse because I think there was a clarification on question 26 as well?

Missy Gavagni: So, item 26 of our new application and this went into effect on November 1st of 2018, actually now asks for disclosure of any treatment for or a recurrence of a substance-related disorder that could impair someone’s ability to practice law.

Karla Eckardt: And then again just for our listeners to know, this all goes back to now the Florida bar’s sort of purpose and goal which is to protect the public but at the same time we don’t want for young attorneys or young law students to feel like there’s some kind of stigma behind having certain anxiety or stress-related issues. So that’s why this was so important why it’s been such a hot topic recently.

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Speaking to the admission now what is a conditional admission, so let’s say someone maybe does say that they’ve suffered from substance abuse in the past or whatnot when they are conditionally admitted what does that mean?

Missy Gavagni: Okay, first of all if I could clarify that I’ll talk about what conditional admission is but I do want to note that just because somebody answers affirmatively to either the mental health question or the substance use question, does not mean that they would only be a candidate for conditional admission. There are plenty of applicants who answer in the affirmative and following the course of the investigation they are admitted unconditionally for admission to the Bar.

Karla Eckardt: Wonderful. Perfect.

Missy Gavagni: But conditional admission is a program that was adopted in Florida back in the mid-1980, so it’s been around for quite a while. We were one of the first jurisdictions to implement conditional admission. So conditional admission is there to allow somebody who does have a substance use or certain mental health conditions or both to be conditionally admitted for a period of time. During that period of time, if they comply with those conditions and they can be conditions like maintaining their sobriety, a lot of this goes through Florida lawyers’ assistance and they will monitor and ensure that they have the support they need to be successful as they are entering the practice of law.

Scott Baena: But to be clear those who were dealing with an abuse problem they must be sober before they can be conditionally admitted for a period of at least six months.

Christine Bilbrey: Okay, and then there’s a few instances, so generally the person is going to apply to the Florida Board of Bar Examiners, they’re going to take the exam, they pass, they get passed over to us, now we’re regulating their actual practice of law but every once in a while and you’ll see this in each edition of the Florida Bar News. Each one typically has a few disbarred attorneys that are seeking readmission.

So, tell us about the role that Florida Board of Bar Examiners has, because I know that I’ve seen that you had to issue recommendations about these disbarred attorneys when they are seeking readmission, what’s the role that you play in that?

Scott Baena: Disbarred attorneys need to reapply for admission and they do so through us. And they must demonstrate that they have been rehabilitated or if there was money involved that they’ve made restitution. They appear before us for a formal hearing. It’s a public hearing, anybody could attend and they make their case. After they’ve done so, panel of the Board will determine and the Board will review the determination by that panel, whether the candidate is suitable for a recommendation to be readmitted. We make that recommendation with findings of fact and conclusions of law that are submitted to the court. The court is not constraint to follow our recommendation.

Christine Bilbrey: Right. Are there ever situations where someone who has been disbarred because maybe it’s like such a large period of time has passed that they would have to retake the exam?

Missy Gavagni: Yes, all disbarred attorneys when they reapply because our Bar exam results by rule are only valid for a period of five years. Once they’ve been admitted and of course disbarred and the disbarment period is generally five years or even longer, those prior Bar results would not be valid and they would have to retake them and pass the Bar exam as well.

Scott Baena: This is a do-over, if you will. They go through the same process except they have the additional burden of proving rehabilitation.

Christine Bilbrey: Okay, that makes it very clear. Finally I want to talk about the new military spouse role. We just found out that we have our first application. So, because Florida doesn’t have reciprocity, this had been a kind of a long time coming because military members get stationed in Florida and if they have a spouse who is a practicing lawyer from another State, they weren’t allowed to practice here. So, what role do you have in that? Are these applicants, do they just apply for the background check or are they taking the Bar exam? What happens now that we’re entering this new rule as of September 17th of the past year?

Missy Gavagni: The military spouse rule is a rule under the rules regulating the Florida Bar, but there’s a companion rule in the rules relating to admission to the Bar to set a fee for military spouses to apply under the Florida Bar’s new rule. What that means is that they will apply with the Florida Board of Bar Examiners and we will complete the character and fitness investigation and issue clearance as to their character and fitness but they do not apply to take the Bar examination.

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So once that character and fitness investigation has been completed and we do those on an expedited basis because we do recognize the time sensitivity for a military spouse that is being relocated here because of their amount — their spouse’s military obligations. So we do those on an expedited basis and then as soon as we issue them that notice of clearance, we report that information to the Florida Bar so that they can complete the remaining requirements to receive that authorization to practice.

Scott Baena: We should probably point out as well that if permitted to practice law in the State of Florida under the military spouse rule that attorney must be employed by a Florida Law Firm or must have a mentor who’s admitted to the Florida Bar.

Missy Gavagni: Oh, I didn’t know that.

Christine Bilbrey: Yeah.

Karla Eckardt: Thank you.

Christine Bilbrey: And then — and they can only practice as long as their spouse is officially stationed within Florida, is that correct?

Scott Baena: Yes.

Christine Bilbrey: Okay.

Missy Gavagni: And there is a time limitation that it can’t go beyond five years.

Christine Bilbrey: Okay. Okay, thank you for clarifying that. Well, I’ve learned a lot today. I appreciate you being here.

Missy Gavagni: Thank you.

We have reached the end of our program. Thank you Missy Gavagni and Scott Baena for joining us today.

Missy Gavagni: Thank you again for the opportunity.

Scott Baena: Thank you, Christine, thank you Karla.

Christine Bilbrey: And if our listeners have questions, how do they get more information on this topic about the Florida Board of Bar Examiners.

Missy Gavagni: So the first thing I would encourage people to do is visit our website which is floridabarexam.org. Anybody who’s interested in seeking admission can go through the website. We have checklists for law students, we have checklists for practicing attorneys coming from another jurisdiction that will walk them through the entire application process. They can also contact us by phone. We can answer specific questions to an individual about our process and which of the rules in which checklist is the appropriate one so that we can assist them with that.

Christine Bilbrey: Perfect. So if you like what you heard today, please rate us in Apple Podcasts. Join us next time for another episode of The Florida Bar Podcast brought to you by LegalFuel: The Practice Resource Center of The Florida Bar on Legal Talk Network.

I am Christine Bilbrey.

Karla Eckardt: And I am Karla Eckardt. Until next time, thank you for listening.

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