IN THE SUPREME COURT OF FLORIDA. FLORIDA BOARD OF BAR EXAMINERS ) RE: RONALD BART GILBERT ) Case No. SC ) Lower Tribunal No.

Transcription

1 IN THE SUPREME COURT OF FLORIDA FLORIDA BOARD OF BAR EXAMINERS ) RE: RONALD BART GILBERT ) Case No. SC ) Lower Tribunal No.: Answer Brief Submitted by: FLORIDA BOARD OF BAR EXAMINERS R. TERRY RIGSBY, CHAIR Eleanor Mitchell Hunter Executive Director Thomas A. Pobjecky General Counsel Office of General Counsel Florida Board of Bar Examiners 1891 Eider Court Tallahassee, FL (850) Florida Bar #211941

2 Table of Contents Answer Brief...1 Table of Contents...2 Table of Citations...3 Jurisdiction...5 Preliminary Statement...5 Statement of the Case and Facts...7 Summary of Argument Argument The Board Properly Found that Gilbert s Evidence of Rehabilitation Was Insufficient. I. Gilbert s Burden II. Gilbert s Disqualifying Conduct III. Gilbert s Insufficient Evidence of Rehabilitation Conclusion Certificate of Service Certificate of Type Size and Style

3 TABLE OF CITATIONS Cases Page Application of T.J.S., 692 A. 2d 498 (N.H. 1997) 27 Florida Board of Bar Examiners re C.A.M., 639 So. 2d 612 (Fla. 1994).. 16 Florida Board of Bar Examiners re J.A.B., 762 So. 2d 518 (Fla. 2000).. 20 Florida Board of Bar Examiners re J.J.T., 761 So. 2d 1094 (Fla. 2000). 15 Florida Board of Bar Examiners re L.H.H., 660 So. 2d 1046 (Fla. 1995).. 14 Florida Board of Bar Examiners re M.A.R., 755 So. 2d 89 (Fla. 2000) 29 Florida Board of Bar Examiners re R.L.W., 793 So. 2d 918 (Fla. 2001).. 17 Florida Board of Bar Examiners re W.H.V.D., 653 So. 2d 386 (Fla. 1995).. 15, 30 In re Belsher, 689 P. 2d 1078 (Wash. 1984). 28 In re K.S.L., 495 S.E. 2d 276 (Ga. 1998).. 27 In the Matter of Greenberg, 749 A. 2d 434 (Pa. 2000) 14,15 The Florida Bar re Lopez, 545 So. 2d 835 (Fla. 1989). 21 3

4 Cases Page The Florida Bar re Roberts, 721 So. 2d 283 (Fla. 1998). 21 The Florida Bar v. Canto, 668 So. 2d 583 (Fla. 1996). 17 The Florida Bar v. Davis, 361 So. 2d 159 (Fla. 1978). 21 The Florida Bar v. Dingle, 235 So. 2d 479 (Fla. 1970). 21 The Florida Bar v. Hale, 762 So. 2d 515 (Fla. 2000). 14 The Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993). 17 The Florida Bar v. Travis, 765 So. 2d 689 (Fla. 2000). 16 The Florida Bar v. Williams, 753 So. 2d 1258 (Fla. 2000). 20 Rules of the Supreme Court Relating to Admissions to the Bar Rule Rule , 26 Rule 3-13(b).. 19 Rule 3-13(e)

5 Jurisdiction The Board acknowledges that the Court has jurisdiction of this matter pursuant to Article V, Section 15 of the Florida Constitution and Rule of the Rules of the Supreme Court Relating to Admissions to the Bar (hereinafter designated by "Rule" followed by the rule number). Preliminary Statement The Board will use the following designations: The applicant, Ronald Bart Gilbert, will be referred to as Gilbert. (Pet) references Gilbert s Supplemental Petition for Review served March 28, (T) references the transcript of Gilbert s formal hearing held November 18, (BE) references the Board exhibits introduced into the record at the 2005 formal hearing. (AE) references the exhibits introduced into the record by the Applicant at the 2005 formal hearing. (OGCE) reference the exhibits introduced into the record by the Office of General Counsel at the 2005 formal hearing. 5

6 (FF) references the Board's written Findings of Fact, Conclusions of Law and Recommendation issued by the Board on February 8,

7 Statement of the Case and Facts The Board accepts the Statement of the Case and Facts as presented by Gilbert with the following additions. Following Gilbert s first formal hearing, the Board issued its Findings of Fact and Conclusions of Law on May 24, (BE 3) In reaching its unfavorable recommendation, the Board concluded that the proven allegations of Specifications 1, 2, and 3 were individually disqualifying. The Board stated: These Specifications deal with the applicant's theft of a client's trust funds while a practicing attorney and the applicant's subsequent lack of candor in his dealings with The Florida Bar and the Board. (Id. at 9) In its 2002 findings, the Board also concluded that Gilbert was not forthright during his formal hearing when testifying about his knowledge of the requirements of Rule 3-13 [pertaining to rehabilitation]. (Id. at 10) During his recent formal hearing held on November 18, 2005, Gilbert confirmed that he had not been completely candid in his previously dealings with the Board. (T 74-75) During his direct examination at the recent formal hearing, Gilbert discussed the Guardian Ad Litem Monitoring Logs that he introduced into the record as Applicant s Exhibit 10. Gilbert explained the various entries on the logs. (T 82-84) Under the heading Time Spent, Gilbert stated what he would insert the following information: The amount of time that it takes me to get to the court or 7

8 to the visit and including the time for the visit and the time to return to my house. (T 83) During cross-examination at his recent formal hearing, Gilbert responded to questioning about entries appearing in the logs comprising Applicant s Exhibit 10. One entry showed a phone call for 20 hours. When asked about this notation, Gilbert responded that it was an error and it should be 20 minutes. (T 97) Another entry showed a home visit lasting 25 hours. When asked about this one, Gilbert confirmed that it was incorrect and that [i]t should be 25 minutes. (T 98) Gilbert also testified that in his review of the logs the night before his formal hearing, he noticed the errors discussed above. The following question of Gilbert and Gilbert s response then occurred: (T 101) Q. Is there a reason why you didn t bring that to the Board s attention during your direct examination? A I should have. I didn t. During his recent formal hearing, Gilbert also responded to questioning about the insufficient checks issued from his checking account during July 2002 and December (T 87-89, ) Gilbert testified that the last returned checks were on December 10, ( ) In his written, sworn Statement of Rehabilitation, Gilbert, however, stated that there were seven (7) checks issued by 8

9 Gilbert from his personal joint checking account with his wife that were returned for insufficient funds during July (AE 11 at Statement of Rehabilitation at 5) When asked at his formal hearing about the discrepancy in the dates of the last returned checks, Gilbert testified that there were no returned checks in July (T 104) When asked about the source of the July 2004 date contained in his sworn Statement on Rehabilitation, Gilbert responded: I don t know. I think I ve submitted my bank account records. (T 104) Office of General Counsel Exhibit 3 consists of copies of Gilbert s amendment to his bar application executed August 25, 2005 and attached incident letter. In that amendment, Gilbert disclosed an August 2, 2005 complaint that was made against Gilbert in his capacity as a docent at the Miami Metrozoo. In his amendment, the applicant characterized the incident as an isolated complaint. (OGCE 3 at amendment) The incident letter dated August 4, 2005 states that the complaint was made by a father who expressed discomfort due to what he considered inappropriate touching by a volunteer while interacting with his 22-year-old daughter. (OGCE 3 at letter of Zoological Society of Florida) The letter also references an earlier incident. Specifically: This is the second incident reported by a patron concerning a behavior that was considered uncomfortable while interacting with Ron Gilbert 9

10 in the Aviary. Mr. Gilbert was counseled following the first incident and it was determined that it was simply a matter of over exuberance with no other intent. (Id.) Office of General Counsel Exhibit 4 consists of a February 10, 2004 incident report by Nora Robbins, Manager of Volunteer Services at Miami Metrozoo. The report pertained to a concern expressed by a patron about an uncomfortable experience with Gilbert. (OGCE 4) In her report, Ms. Robbins stated that she spoke to Gilbert about the incident: He was not upset but seemed to accept the description and stated he would be careful to ask permission before physically guiding anyone in the future. (Id.) During his recent formal hearing, Gilbert responded to questioning about the complaints that were made against him by visitors to the Miami Metrozoo. (T 89-91, ) During his direct examination, Gilbert described the first complainant as an elderly lady. (T 90) Gilbert had moved the elderly lady so as to allow her to see a particular bird. (Id.) When asked at his formal hearing as to why he disclosed the August 2005 incident to the Board, Gilbert responded: It is our obligation to advise the Board of anything concerning my conduct * * * that was out of the ordinary. (T 110) When asked at his formal hearing as to why he failed to disclose the 2004 incident to the Board, Gilbert responded: In my mind she didn t make a formal 10

11 complaint, a written complaint and I didn t think that it was of such a nature that I had to report it. I didn t think it affected my conduct. I think that the second report, I think I had to. (T 111) During his recent formal hearing, Gilbert called Nora Robbins as a witness who testified by phone. She is the manager of volunteer services for the Zoological Society of Florida. (T 123) When Gilbert first started working at the zoo, he never advised Ms. Robbins of his situation with The Florida Bar. She first learned of Gilbert s disciplinary resignation when she received a subpoena for the formal hearing. (T 126) As to complaints filed against Gilbert, Ms. Robbins testified that there were incidents in February 2004 and August She elaborated: (T ) They re very similar in nature. Both times a zoo patron had been uncomfortable with Ron s interaction with a member of their party. They were both with females, that there was inappropriate contact and they actually - - they were just upset that there had been inappropriate contact by Mr. Gilbert with one of their party. As to the first incident, Ms. Robbins thought that the individual who the applicant had touched was a teenager or younger. (T 131) She was told it was a young girl. (Id.) Ms. Robbins counseled Gilbert after both incidents. (T 128) Ms. Robbins was asked why the second incident came up in light of the counseling after the first 11

12 incident. She responded: Why would there be a second incident? That was our question, too. And we did not have an answer. (T 132) Ms. Robbins discussed the zoo s no-touch policy: All our volunteers are told during their initial training that we are not to touch the public at all. That it s especially directed towards any child and they re told that if a child can t see something, they are not to pick up the child and help them to view anything. Even to the point that if someone falls down, we ask them to get help for the person, comfort them as they re sitting on the floor or whatever, but not touch because of liability issues. (T 133) Ms. Robbins added that by attending the training session, the volunteers agree to abide by [the zoo s] policies. (T 134) At the time of the November 2005 formal hearing, Gilbert was unemployed. (T 96) He had no source of income but his spouse is a court reporter. (T 140) Gilbert was last employed over two years ago as a part-time law clerk. (T 96) 12

13 Summary of Argument Gilbert is a former attorney who misappropriated trust funds. Gilbert resigned from The Florida Bar while disciplinary proceedings were pending against him. Having engaged in disqualifying conduct in the past, Gilbert was required to present clear and convincing evidence of his habilitation at his recent formal hearing. Based upon its evaluation of Gilbert s presentation, the Board properly found that his evidence of rehabilitation was insufficient. In reaching its determination about Gilbert s formal hearing presentation, the Board noted the complaints made against him as a volunteer at the Metrozoo and his failure to disclose the first complaint to the Board. The formal hearing record reveals additional matters that support the Board s decision including Gilbert s issuance of worthless checks, errors on Gilbert s formal hearing exhibits, and Gilbert s failure to inform the Board of inaccurate entries on one of his exhibits. Gilbert should not be readmitted to The Florida Bar at this time. In two years, Gilbert will have the opportunity to reapply again and to establish his rehabilitation. Based on the record before it, the Court should affirm the Board's findings, conclusion and recommendation. 13

14 Argument The Board Properly Found that Gilbert s Evidence of Rehabilitation Was Insufficient. I. Gilbert s Burden In the case of Florida Board of Bar Examiners re L.H.H., 660 So. 2d 1046 (Fla. 1995), this Court confronted the issue of whether the petitioner, a disbarred attorney, should be readmitted. The Court observed: An applicant such as L.H.H. bears the heavy burden of establishing rehabilitation. Thus, L.H.H.'s disbarment alone is disqualifying unless he can show clear and convincing evidence of rehabilitation. Id. at 1048 (Citation and footnote omitted). In denying the petitioner's application, the Court reaffirmed that "the rehabilitation requirement is stringent." Id. at Gilbert actually resigned from The Florida Bar while disciplinary proceedings were pending against him. (FF at 2) The Court, however, has held that disciplinary resignation is tantamount to disbarment. The Florida Bar v. Hale, 762 So. 2d 515, 517 (Fla. 2000). The Supreme Court of Pennsylvania noted the unilateral nature of Gilbert s burden in the case of In the Matter of Greenberg, 749 A. 2d 434 (Pa. 2000). There, the attorney seeking reinstatement made the following argument: 14

15 Id. at 436. In arguing for reinstatement, petitioner asserts that there was no evidence presented that the public trust would be diminished, that the legal profession would be somehow tarnished, and that there would be any blight upon the profession or society should he be reinstated. Petitioner emphasizes the Office of Disciplinary Counsel s failure to present witnesses to demonstrate the negative impact that his reinstatement would have. In rejecting the petitioner s argument, the Pennsylvania Supreme Court in Greenberg reasoned: [I]t is petitioner who bears the burden of proving, by clear and convincing evidence, that he should be reinstated. The Office of Disciplinary Counsel was not obligated to present witnesses on this point. Id. at 436 (citation omitted). In evaluating the sufficiency of evidence of rehabilitation by a bar applicant, the severity of the misconduct must be considered. This principle was recognized by the Court in Florida Board of Bar Examiners re W.H.V.D., 653 So. 2d 386 (Fla. 1995). There, the Court observed: "In evaluating an applicant's showing of rehabilitation, we cannot disregard the nature of past misconduct." Id. at 388. This principle was reaffirmed by the Court in Florida Board of Bar Examiners re J.J.T., 761 So. 2d 1094 (Fla. 2000). There, the Court added: "The more serious the misconduct, the greater the showing of rehabilitation that will be required." Id. at These decisions hold that the degree of rehabilitation 15

16 required in a particular case is dependent upon the nature and extent of the past misconduct. II. Gilbert s Disqualifying Conduct As a practicing attorney, Gilbert misappropriated trust funds as set forth in the undisputed allegations of Specification 1. (T 74; FF at 3 at Specification 1) The Court has made known the serious nature of this misconduct. For example, in the case of The Florida Bar v. Travis, 765 So. 2d 689, 691 (Fla. 2000), the Court stated: We have repeatedly held that the misuse of client funds in trust is one of the most serious offenses a lawyer can commit and that disbarment is presumed to be the appropriate punishment. As set forth in the uncontested allegations of Specifications 2 and 3, Gilbert also engaged in a lack of candor in his past dealings with The Florida Bar and the Board. The Court has made known the serious nature of this misconduct. For example, in the case of Florida Board of Bar Examiners re C.A.M., 639 So. 2d 612, 613 (Fla. 1994), the Court ruled that "[a] lack of candor on the part of an applicant is intolerable and disqualifying for membership in the Bar." Gilbert engaged in other misconduct as set forth in the proven allegations of Specifications 4, 5, and 6 including his failure to forward withholding taxes to the IRS for the employees of his law firm during the period of

17 III. Gilbert s Insufficient Evidence of Rehabilitation Gilbert correctly observes that the Court is not precluded from making its independent review of the record of these proceedings. (Pet 37). Yet, in cases before the Board involving an evaluation of an individual's character and fitness to practice law, the Board serves the same function as a referee in an attorney discipline proceeding. As this Court has observed in the past: "The referee is the person most well-equipped to judge the character and demeanor of the lawyer being disciplined." The Florida Bar v. Rood, 622 So. 2d 974, (Fla. 1993) (citation omitted). Regarding the appropriate standard of appellate review in this case, the Court has held in an attorney discipline case: A referee's findings of fact in attorney discipline proceedings are presumed correct and will be upheld unless clearly erroneous and lacking in evidentiary support. The party seeking review in a bar discipline proceeding has the burden of showing that the referee's findings are clearly erroneous or unsupported by the record. Unless that burden is met, the referee's findings and recommendations will be upheld on review. The Florida Bar v. Canto, 668 So. 2d 583, 584 (Fla. 1996) (citations omitted). Additionally, in the case of Florida Board of Bar Examiners re R.L.W., 793 So. 2d 918 (Fla. 2001), the Court had before it the Board s recommendation that the applicant be disqualified from reapplying for the enhanced period of five years. In approving the Board s recommendation, the Court observed: 17

18 The Board has had the firsthand opportunity to hear the evidence and evaluate the suitability of an applicant for entry into the practice of law. Past justices have frequently cautioned against the rejection of Board recommendations of whether to admit an applicant to the practice of law. Id. at 926 (citations omitted). The sole issue before the Court in this case is the correctness of the Board's determination that Gilbert failed to meet his burden in establishing his rehabilitation for readmission to the legal profession in Florida. As discussed below, the record before the Court is clear that Gilbert failed to meet his burden. A. The Board properly found that Gilbert s failed to establish his unimpeachable character and moral standing in the community. As to the element of rehabilitation requiring unimpeachable character and moral standing in the community, the Board found: (FF 14) The Board finds that the applicant has not established this element of rehabilitation by clear and convincing evidence. Significant to this finding is the testimony of Ms. Robbins with regard to the two complaints filed against the applicant and the sentiment of fellow volunteers who do not want to work with the applicant because of his off-colored remarks. In reaching this finding, the Board properly considered the testimony offered at Gilbert s formal hearing by his own witness, Nora Robbins. Ms. Robbins is the manager of volunteer Services at Miami Metrozoo. During her testimony, Ms. Robbins recounted two complaints made against Gilbert since February 2004 in his 18

19 capacity as a docent. Ms. Robbins also testified that some fellow volunteers avoid working with Gilbert due to his inappropriate comments and his jokes [that] are not in the best of taste. (T 129, 130) As to the two complaints, both of them were similar in nature involving inappropriate contact by Gilbert with young females visiting the zoo. (T , 131; OGCE 3 at attached letter; OGCE 4) Both incidents occurred after Gilbert s initial training during which the zoo s no-touch policy would have been explained. (T ) Ms. Robbins counseled Gilbert after the first complaint. She felt that she had adequately counseled him so as to avoid the reoccurrence of the offending conduct. (T 132) When asked why then was there a second incident, Mr. Robbins responded: Why would there be a second incident? That was our question, too. And we did not have an answer. (Id.) The Board likewise does not have an answer for Gilbert s inappropriate conduct. The Board does, however, have an answer as to how Gilbert s inappropriate conduct impacts his claim of rehabilitation. As an applicant who needs to establish rehabilitation, Gilbert must show that his character is unimpeachable. Rule 3-13(b) of the Rules. Unimpeachable is 19

20 defined as "beyond doubt or reproach" or "unquestionable." 1 In light of his inappropriate actions at the Metrozoo since 2004, Gilbert s conduct has not been beyond reproach. In addition to the misconduct discussed above, the record before the Court is undisputed that Gilbert has issued worthless checks since his previous 2002 formal hearing. (T 87-88; ; OGCE 2) Consideration of this matter is proper by the Court in its independent review of the record of these proceedings. See, e.g., Florida Board of Bar Examiners re J.A.B. 762 So. 2d 518, 519 (Fla. 2000) ( In addition, although not specifically mentioned by the Board, J.A.B. agreed at his investigative hearing to provide documentation of his child support payments, but at the formal hearing he was able to produce only four canceled checks, five money orders, and copies of a few receipts. ) (Emphasis supplied). In his explanation of these returned checks, Gilbert stated that they were prompted by a computer program that did not deduct a monthly deduction and by a lack of communications between Gilbert and spouse. In the case of The Florida Bar v. Williams. 753 So. 2d 1258 (Fla. 2000), the Court addressed an argument that the issuance of an insufficient funds check was not deliberate. In responding to this argument, the Court stated: 1 Definition of unimpeachable found in THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE. 20

21 [T]his Court has held that "the issuance of a worthless check by an attorney constitutes unethical conduct and subjects the attorney to professional discipline by the Florida Bar." Florida Bar re Roberts, 721 So. 2d 283, 285 (Fla. 1998) (quoting Florida Bar v. Davis, 361 So. 2d 159, 162 (Fla. 1978)). Writing worthless checks, even where restitution is made, "burdens the recipients and is fundamentally dishonest. It brings disrepute on the writer and the profession. It is inconsistent with fitness to practice law." Id. at 285 (quoting Florida Bar re Lopez, 545 So. 2d 835, 837 (Fla. 1989)). Further, in Florida Bar v. Dingle, 235 So. 2d 479, 480 (Fla. 1970), an attorney charged with writing a worthless check claimed that he was honest, but merely a poor bookkeeper. This Court found that "[t]his explanation may well be true but does not excuse [the attorney's] misconduct." Id. Williams admitted that he gave a worthless check to his employee and the referee's recommendation of guilt on this charge is supported by substantial competent evidence. In light of the foregoing, we find that the referee's findings of fact and conclusions of guilt are supported by substantial competent evidence in the record. Id. at Similarly, Gilbert s explanations for the issuance of returned checks do not excuse the misconduct. Such misconduct is inconsistent with unimpeachable character. B. The Board properly found that Gilbert s failed to establish his good reputation for professional ability. As to the element of rehabilitation requiring good reputation for professional ability, the Board found: The Board finds that the applicant has not established this element of rehabilitation by clear and convincing evidence. The only evidence in the record of professional ability dealt with the applicant s work as a guardian ad litem, which, as testified to by Judge Cindy Lederman, does not involve the practice of law. 21

22 (FF 14) For over the last two years, Gilbert has not been employed. (T 96) Gilbert s last employment was as part-time law clerk. (Id.) The Board, therefore, properly found that Gilbert had not established this element of rehabilitation. In addition to the above-quoted general insufficiency noted by the Board in its findings, the record before the Court establishes several specific deficiencies as to the Gilbert s professional ability. During his formal hearing, Gilbert offered into evidence an exhibit consisting of his monitoring logs while serving as a Guardian Ad Litem. (AE 10) This exhibit contained errors by Gilbert wherein he recorded a phone call as taking 20 hours that only took 20 minutes and he recorded a home visit as taking 25 hours that only took 25 minutes. (T 97-98) During his formal hearing, Gilbert also offered into evidence a sworn written Statement of Rehabilitation. (AE 11) In his rehabilitation statement, Gilbert stated that there were seven (7) checks issued by Gilbert from his personal joint checking account with his wife that were returned for insufficient funds during July (AE 11 at Statement of Rehabilitation at 5) Yet, during his recent formal hearing, Gilbert testified that he his last returned checks were in December (T 103) When asked why he stated July 22

23 2004 in his sworn rehabilitation statement, Gilbert s reponded: I don t know. I think I ve submitted my bank accounts records. (T 104) These errors in exhibits submitted into evidence by Gilbert at his 2005 formal hearing are especially disconcerting in that they are similar in nature to the one committed by Gilbert at his 2002 formal hearing. (BE 2 at 48-49) There, Gilbert had made a mistake when calculating the total number of hours that he had spent as a Guardian Ad Litem. (Id. at 49) There, Gilbert submitted an amended exhibit to correct his mistake. (Id. at 48-49) Over 3 ½ years later at his November 2005 formal hearing, Gilbert is making even more mistakes in the exhibits being offered in support of his rehabilitation. The Board s finding that Gilbert failed to establish his good reputation for professional ability is well supported by the November 2005 formal hearing record before the Court. C. The Board properly found Gilbert s failed to establish his personal assurances, supported by corroborating evidence, of a desire and intention to conduct himself in an exemplary fashion in the future. As to the element of rehabilitation requiring assurances, supported by corroborating evidence, of a desire and intention to conduct oneself in an exemplary fashion, the Board found: The Board finds that the applicant has not established this element of rehabilitation by clear and convincing evidence. Even after being counseled by Ms. Robbins about the first complaint at the 23

24 Metrozoo, the applicant engaged in conduct that Ms. Robbins described as very similar, requiring additional counseling. (FF 15) As to this finding, the Board adopts its argument presented under A. above as to Gilbert s misconduct at the Metrozoo and the issuance of worthless checks. As an applicant who needs to establish rehabilitation, Gilbert must show that his conduct in the future will be exemplary. Rule 3-13(e) of the Rules. Exemplary is defined as "worthy of being imitated" or "commendable. 2 Gilbert s inappropriate conduct at the Metrozoo and the issuance of worthless checks from his checking account were neither worthy of being imitated nor commendable. The Board s properly found that Gilbert had not established this element of rehabilitation. D. The Board properly found that Gilbert failed to disclose the first complaint made against at the Metrozoo. The Board made the following additional finding: In addition to the above factors, the Board also notes that the applicant failed to disclose the first complaint filed against him at the Metrozoo that resulted in counseling. (FF 15) This finding is well supported by the formal hearing record. 2 Definition of exemplary found in THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE. 24

25 When Gilbert was confronted as why he only disclosed the second incident to the Board, he tried to distinguish them by referring to the second complaint as formal or written. (T 111) Yet, contrary to his testimony, both incidents were supported by written documentation produced by Nora Robbins, Manager of Volunteer Services at Miami Metrozoo. (OGCE 3 at letter of Zoological Society of Florida; OGCE 4) During his formal hearing testimony, Gilbert also tried to excuse his nondisclosure to the Board with the following:...i didn t think that it was of such a nature that I had to report it. (T 111) Yet, Gilbert s own witness, Ms. Robbins, characterized the two incidents as very similar in nature. (T 127) In addition to this finding by the Board, the record before the Court includes another instance of Gilbert s concealment of unfavorable information from the Board. During his recent formal hearing, Gilbert introduced into the record an exhibit that he knew contained errors. (T ) Yet, Gilbert introduced this exhibit into the formal hearing record and then discussed it during his direct examination without ever informing the Board of the errors. (T 47-48, 82-84) It was only during cross-examination that Gilbert s concealment was revealed. (T ) When asked why he had not informed the Board of the errors in Applicant s Exhibit 10, Gilbert answered: I should have. I didn t. (Id. at 101) 25

26 During his first formal hearing appearance in 2002, Gilbert properly amended one of his exhibits to correct an error. (BE 2 at 48-49) Gilbert took a step backwards on his journey towards rehabilitation when he tried to conceal errors on an exhibit introduced into the record at his November 2005 formal hearing. E. The Board applied the appropriate standard in evaluating Gilbert s case. Gilbert properly argues before the Court that his burden of proof is one of clear and convincing evidence. (Pet 38) Gilbert then asserts that Board misapprehended this standard of proof and instead has applied the beyond a reasonable doubt standard of proof. (Id.) There is nothing in the Board s findings to support Gilbert s assertion. In fact, the Board began its Findings of Fact with the following language: Because this is a rehabilitation case with the Board having previously found the applicant to be unqualified for admission to The Florida Bar, the applicant is required to establish his rehabilitation by clear and convincing evidence. The applicant's burden is mandated by Rule 3-13 of the Rules, which reads as follows: 3-13 Elements of Rehabilitation. Any applicant or registrant who affirmatively asserts rehabilitation from prior conduct which bears adversely upon such person's character and fitness for admission to the Bar shall be required to produce clear and convincing evidence of such rehabilitation including, but not limited to, the following elements: * * * 26

27 (FF 8) (Emphasis supplied) As to each of seven elements of rehabilitation, the Board also specifically found that Gilbert had established or had not established each element by clear and convincing evidence. (FF 14-15) Additionally, the Board issued the following conclusion under Conclusions of Law: Based upon the above Findings, the Board concludes that the applicant has failed to establish by clear and convincing evidence his rehabilitation from the disqualifying conduct established at his formal hearing on March 21, (FF 16) (Emphasis supplied) Contrary to Gilbert s argument before the Court, the Board stated the clear and convincing evidence standard on ten different occasions throughout its findings. Furthermore, it is noteworthy that several courts have relied upon the word doubt when addressing whether a bar applicant has establish his or her rehabilitation by clear and convincing evidence. For example, in the case of In re K.S.L., 495 S.E. 2d 276, 277 (Ga. 1998), the Supreme Court of Georgia held: In determining whether the burden of proving rehabilitation by clear and convincing evidence was met, the Board was authorized to resolve any doubt against K.S.L.'s certification and in favor of the public's protection. (Citation omitted) (Emphasis supplied). Another example is found in the case of Application of T.J.S., 692 A. 2d 498 (N.H. 1997). There, the Supreme Court of New Hampshire held: 27

28 The applicant has not met his burden of proving by clear and convincing evidence that he possesses the "good moral character" necessary for the practice of law. Any doubt concerning his character and fitness "should be resolved in favor of protecting the public by denying admission to the applicant." Id. at 502 (Citation omitted) (Emphasis supplied). In the case of In re Belsher, 689 P. 2d 1078 (Wash. 1984), the Supreme Court of Washington similarly held: Having previously engaged in serious misconduct, petitioner must "clearly demonstrate" that he is now worthy of the public trust that is placed in attorneys; if doubt remains, fairness to the public and the bar requires that admission be denied. In this case, there is doubt as to petitioner s rehabilitation. Id. at 1083 (Citation omitted) (Emphasis supplied). Gilbert also asserts before the Court that it is difficult to point to anything more that he could have done to convince the Board of his rehabilitation. (Pet 39) Contrary to Gilbert's suggestion, there is much for him to do to establish his complete rehabilitation. Gilbert s character must be "unimpeachable so that there will be no need for him to offer excuses for his actions such as complaints being filed against him for inappropriate conduct, the issuance of worthless checks, and the concealment of material information from the Board. As this Court aptly stated in the past: [T]he citizens of Florida are entitled to more than excuses when we certify the 28

29 character and fitness of our lawyers. Florida Board of Bar Examiners re M.A.R., 755 So. 2d 89, 92 (Fla. 2000). This principle is especially true for Gilbert who resigned from the legal profession while disciplinary proceedings were pending against him. By his past misconduct while a practicing attorney, Gilbert dishonored the profession that he was entrusted to uphold. Based upon the record before it and in fulfilling its obligation to protect the public, the Board could not confidently recommend Gilbert s readmission to the practice of law at this time. The Court is urged to reach the same result. 29

30 Conclusion As observed by the Court in a case involving an applicant (like Gilbert) who had been previously denied by the Board on two occasions, Gilbert will have the opportunity to gain readmission to The Florida Bar in the future: Our holding does not...erect a permanent bar to admission. On a showing of rehabilitation, [the applicant] may reapply for admission after two years from the date of the Board's adverse recommendation. W.H.V.D., supra at 388 (Citation omitted). The Board's findings, conclusion and recommendation are fully supported by the record before this Court. The Board requests the Court to affirm the Board's recommendation that Gilbert not be readmitted to The Florida Bar at this time. 30

31 Dated this 24 th day of April FLORIDA BOARD OF BAR EXAMINERS R. TERRY RIGSBY, CHAIR Eleanor Mitchell Hunter Executive Director By: Thomas Arthur Pobjecky General Counsel Florida Board of Bar Examiners 1891 Eider Court Tallahassee, FL (850) Florida Bar # Certificate of Service I hereby certify that a true and correct copy of the foregoing Answer Brief has been served by U.S. Mail this 24 th day of April 2006 to Richard B. Marx, Esquire, 66 West Flagler Street, 2 nd Floor, Miami, Florida Thomas Arthur Pobjecky Certificate of Type Size and Style I hereby certify that the size and style of type used in this Answer Brief are 14 Times New Roman. Thomas Arthur Pobjecky 31