IN THE SUPREME COURT OF FLORIDA FLORIDA BOARD OF BAR EXAMINERS ) RE: EDWARD L. HOWLETTE, SR. ) Case No. SC10-367 ) Response to Petition for Review The Florida Board of Bar Examiners, by and through its undersigned attorney, files this response to the verified petition executed by Edward L. Howlette, Sr. (hereinafter Howlette) and states. Jurisdiction The board acknowledges that the Court has jurisdiction of this matter pursuant to Article V, Section 15 of the Florida Constitution and Rule 2-30.2 of the Rules of the Supreme Court Relating to Admissions to the Bar (hereinafter referred to as "Rules"). Statement of the Case and the Facts The board accepts Howlette s statements pertaining to the case and the facts set forth in paragraphs 1-31 of his petition with the following additions and exceptions. New York admitted Howlette to the practice of law in 1977; it disbarred him in 1994. See the New York order of reinstatement dated January 8, 2007 that is attached to this response as Exhibit 1.
Following this Court s order denying Howlette s motion for rehearing in September 2005 (Petition at Exhibit E), Howlette sought readmission in his former home state of New York where he had been disbarred. It took Howlette about 15 months or until January 8, 2007 to get reinstated in New York. (Exhibit 1 to this response) By order dated September 27, 2007, this Court authorized Howlette to apply for admission to The Florida Bar subject to the provisions of Rules 2-13.1, 2-29, and 3-22.7 of the Rules of the Supreme Court Relating to Admissions to the Bar. A copy of the order is attached to this response as Exhibit 2. Howlette then sought and promptly received clarifications from the board as to how to proceed with seeking admission to The Florida Bar. (Petition at Exhibits J, K, L, and M) Howlette eventually filed his updated bar application with the board on June 5, 2008. Copy of Howlette s cover letter dated May 29, 2008 with the boardstamped-received date of June 5, 2008 enclosing his bar application and copy of Howlette s check dated May 29, 2008 for his admission fee are attached to this response as Exhibit 3. During the board s updated background investigation on Howlette, matters pertaining to his child support obligations remained unsettled until April-May 2009. On April 21, 2009, Judge Richard Tombnink, Jr. of the Fifth Circuit of Florida entered an order terminating child support and collection of funds by the 2
New York Child Support Processing Center. A copy of the order is attached to this response as Exhibit 4. By notice dated May 28, 2009, the Suffolk County New York Support Collection Unit vacated its previously issued Retraining Notice or Execution. A copy of the notice is attached to this response as Exhibit 5. In addition to the child support issue, the board focused on other matters during its updated background investigation consisting of the applicant s outstanding financial obligations, the applicant s handling of his checking account, and a foreclosure action brought against the applicant in July 2007. After completing its investigation, the board required the applicant to appear for an investigative hearing. The Notice to Appear for Investigative Hearing dated September 10, 2009, set forth four areas of concerns. A copy of the notice is attached to this response as Exhibit 6. Howlette appeared for his investigative hearing on November 13, 2009. As set forth in his pending petition, Howlette first petitioned the board for an extension of the validity of his bar examination scores in November 2007. (Petition at Exhibit N) The board granted Howlette s petition for a period of two years or until January 2010. (Petition at Exhibit O) Howlette asked the board for a second extension of the validity of his bar examination scores by letter dated October 9, 2009. (Petition at Exhibit Q) As good cause for the extension, Howlette attached an affidavit wherein he set forth 3
a chronology pertaining to his efforts at seeking admission to The Florida Bar. A copy of Howlette s affidavit is attached to this response as Exhibit 7. 1 The board subsequently denied Howlette s request. (Petition at Exhibit R) By letter dated February 8, 2010, Howlette petitioned the board for reconsideration. (Petition at Exhibit S) In this petition for reconsideration, Howlette included additional reasons for the granting of his request under the section titled Continuing Legal Education. (Id. at second page) By letter dated February 23, 2010, the board s executive director notified Howlette that the board would not accept his petition for reconsideration in that his October 2009 petition was considered a petition for reconsideration of the board s decision in January 2008 to grant a two-year extension. (Petition at Exhibit T) The executive director further stated that [t]he board will not accept multiple petitions to reconsider in the same matter. (Id. at first page) In his pending petition filed with the Court, Howlette includes the new information that he had included in his petition for reconsideration under the heading Continuing Legal Education. (Petition at paragraphs 32 and 33; paragraph 34 at the second sentence) The board objects to that information being presented to the Court in that the board never considered that information, let alone 1 In his affidavit, Howlette incorrectly asserts that he filed his updated bar application and application fee with the board in November 2007. Affidavit at 4
rule upon its sufficiency, when it denied Howlette s October 9, 2009 petition. Furthermore, Howlette has made no showing to the Court as to why this new information could not have been included in his October 9, 2009 petition in support of his showing of good cause for extending his bar scores as required by rule 4-18.2 of the Rules. In his petition, Howlette asserts that it appears that the Board only began its investigation in earnest just before the nine month deadline. (Petition at paragraph 37) The board objects to Howlette s assertion. The board received Howlette s updated bar application on June 5, 2008. Contrary to Howlette s assertion, the board promptly initiated its background investigation. Howlette s file contains documents showing that in June 2008, the board sent inquiries to the following: references, creditors, employers, and police departments in the cities where the applicant has recently resided. Howlette s file also reveals that beginning in July 2008, the board received responses from inquiries that the board had made. For example, Howlette s file contains correspondence from the following: Florida Default Law Group, P.L. (letter dated July 31, 2008 concerning its foreclosure action against Howlette); Spence & Davis, LLP (letter dated August 8, 2008 concerning its representation of Howlette s paragraph 27. Howlette actually filed them on June 5, 2008. Exhibit 3 to this 5
former spouse pertaining to child support); and Credit Management LP (letter dated September 17, 2009 concerning the status of its collections efforts against Howlette on behalf of Comcast Cable). Furthermore, following a review of his bar application, the board sent Howlette a letter dated July 14, 2008 requesting further information and documentation. A copy of the board s letter is attached to this response as Exhibit 8. Response Howlette passed the August 2001 Multistate Professional Responsibility Examination (MPRE) and the February 2003 General Bar Examination. The Rules of the Supreme Court Relating to Admissions to the Bar contains the following provision regarding the validity of bar examination scores. Rule 4-18.2 Five Years. An applicant's passing scores on the Florida Bar Examination will be valid for a period of 5 years from the date of the administration of the last part of the Florida Bar Examination that he or she passed. If the 5-year period expires without admission, an applicant, except for good cause shown, will be required to retake the Florida Bar Examination and again pass all parts of the examination. As provided in Rule 4-18.2, Howlette s scores would have expired in February 2008. But in January 2008, the board granted Howlette s petition for an extension and extended the validity of his scores for up to a maximum of two Response. 6
years. (Petition at Exhibit O) Howlette sought another extension in October 2009. (Petition at Exhibit Q) The board denied Howlette s request. (Petition at Exhibit R) Howlette now seeks review of the board s action. In 1985, the Court first enacted a rule to address the problem of bar applications being on file with the board for an extended period of time without any final action. The current version of this rule provides in part: 2-29 Stale File Fee. An applicant whose Bar Application has been on file for more than 3 years is required to file a new Bar Application on the form available on the board's website with current references, a fingerprint card, and the applicable fee. Florida Board of Bar Examiners re Amendment of Rules, 462 So.2d 463, 465-466 (Fla. 1985) (The rule was former Article IV, section 2.). In 1993, the Court enacted a companion provision to the stale file rule to address the staleness of bar examination scores. Florida Board of Bar Examiners re Amendment to Rules, 626 So.2d 156 (Fla. 1993) (The provision was former Article IV, section 2.b.). This provision, currently set forth under rule 4-18.2 of the Rules, is reproduced above and mandates that an extension of the validity of bar examination scores be granted only upon good cause shown. In addressing Howlette's argument before the Court, the board s underlying rationale for the enactment of the five-year limitation for bar exam scores is controlling. This rationale was set forth in the Court's 1993 opinion: 7
The proposed rule amendment also provides that an applicant must retake the Florida Bar Examination if notice of successful completion of the examination is older than five years. Currently, the Rules require an applicant to file a bar application "no later than 180 days from the date of notice that success has been attained on [the Florida Bar Examination]." Article VI, Section 9 of the Rules. The intent of such requirement is to prevent an inordinate passage of time between a demonstration of minimum technical competence by completion of the bar examination and admission to The Florida Bar. Notwithstanding the intent of the rules, certain applicants who previously passed all parts of the bar examination have gone lengthy periods of time without being admitted. Such applicants include individuals whose files were inactivated due to staleness and applicants who were previously denied a favorable recommendation by the Board. * * * The five-year limitation is appropriate because that is the same length of time used by The Florida Bar in determining that a retired or delinquent member can only be reinstated "upon application to and approval by the Florida Board of Bar Examiners." Rule 1-3.7(e) of the Rules Regulating The Florida Bar. The Board submits that the inclusion of the five-year limitation will ensure a reasonable time span between the demonstration of minimum technical competence and admission to The Florida Bar. Rules, 626 So.2d at 158 (emphasis supplied). Based upon the above-quoted rationale, the board recommended and the Court approved the five-year limitation to address individuals like Howlette who were previously denied admission. In his October 2009 petition filed with the board, Howlette supported his request for another extension of the five-year limitation on bar examination scores with an affidavit. (Exhibit 7 to this response) In his affidavit, Howlette referenced his employment as a substitute teacher and a cashier for a retail store. (Id. at paragraph 32) 8
In the case of Florida Board of Bar Examiners re W.H.V.D., 653 So.2d 386 (Fla. 1995), the Court addressed similar facts as in Howlette s case. There, the applicant sought admission again after being previously denied by the Court. Following his second formal hearing appearance, the board again recommended against the applicant's admission based upon his failure to demonstrate sufficient rehabilitation. The Court upheld the board's recommendation finding that the applicant had failed to meet his burden as to the establishment of rehabilitation. Id. at 388. The Court in W.H.V.D. also upheld the board's recommendation that the applicant be required to retake and pass the bar examination. In that case, the applicant was a former out-of-state attorney who was working for the state in a non-lawyer capacity. In reaching its ruling, the Court reasoned: "This would ensure W.H.V.D.'s technical competence because he last passed the bar exam in 1988 [or seven years earlier from the Court s decision in 1995] and has recently been employed outside the practice of law." Id. Similarly, Howlette last completed all parts of Florida s bar examination in February 2003 or over seven years ago. Similarly, Howlette is employed outside the practice of law as a substitute teacher and cashier. Correctly, the board determined that Howlette had failed to show good cause for a second extension of the five-year rule. 9
In the case of In re Russell, 236 So. 2d 767 (Fla. 1970), the petitioner (a member of the Massachusetts Bar and a resident of Florida) attacked Florida's lack of reciprocity as unconstitutional. The petitioner was offended by Florida's policy requiring her to submit to an examination testing her knowledge of law even though she was a licensed lawyer in Massachusetts. The Court in Russell found the petitioner's argument "utterly devoid of merit." Id. at 768. The Court observed that "the right to practice law in State courts is not a privilege granted under the Federal Constitution." Id. The Court further held that its bar examination policy did not violate the federal guarantees of due process and equal protection as mandated by the holding in Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). The Russell Court reaffirmed the intimate connection between the practice of law and the administration of justice. The Court thus concluded: Id. at 769. We see it clearly as our duty to admit to this special position of obligation and trust only those applicants, whether from Florida schools or elsewhere, who can satisfactorily demonstrate their credentials through a test of competence given under our supervision and control. The reasoning relied upon by the Russell Court is equally applicable to the reasonable requirement that the demonstration of competence must occur within five years of admission to The Florida Bar. The five-year limitation is rationally 10
connected to an applicant's fitness to practice law in Florida. Accord Giannini v. Real, et al., 911 F.2d 354, 358 (9th Cir. 1990) ("California has the right to make its examination more comprehensive and difficult than other states...[a]llowing California to set its own bar examination standards is rationally related to the legitimate government need to ensure the quality of attorneys within the state."). In the case of Petition of Cuban-American Lawyers Program, 367 So.2d 218 (Fla. 1979), this Court rejected certain requested exceptions to the admissions process sought by Cuban-American bar applicants. In reaching its decision, the Court reasoned: While we have continued sympathetic to the condition of the CALI applicants, we have nonetheless remained mindful of our paramount responsibility in the admissions process to protect the public by ensuring that those who are admitted to practice law in this state have demonstrated a required level of competence. Id. at 219. As mandated by the provisions of Rule 4-18.2, the demonstration of competence must occur within a reasonable period of time prior to admission to the Bar. To demonstrate an abuse of discretion by the board in denying Howlette's request for a waiver of Rule 4-18.2, Howlette should be required to meet the following burden: In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as 11
to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). See also Baldwin v. Baldwin, 576 So.2d 400, 401 (Fla. 5th DCA 1991) ("Unless we determine that no reasonable judge would have done what was done, we must affirm."). Based on this Court's test of reasonableness, Howlette has failed to demonstrate an abuse of discretion by the board in denying his petition. It has been over eight years since Howlette passed the MPRE and over seven years since he passed the last part of Florida s bar examination. As acknowledged by the Court in the case of In re Hale, 433 So.2d 969, 972 (Fla. 1983), strict enforcement of a particular bar admissions rule "while conceivably a hardship to some, is in the best interest of the legal profession in our state." That rationale is equally applicable to the disposition of the instant case. Lastly, Howlette argues that the equities in his case weigh in his favor. (Petition at paragraphs 36 and 38) In considering that argument, it must be remembered that Howlette is responsible for his current situation. It was Howlette's misconduct that resulted in his disbarment in New York. (Exhibit 1 to this response) It was Howlette who had his first application for reinstatement to the New York Bar denied in 2002. (Id.) It was Howlette who took from 2005 to 12
January 2007 to finally get readmitted to the New York Bar. (Id.) It was Howlette who took from October 2007 to June 2008 to file his updated bar application with the board. Howlette concludes his argument by stating that he has proven his rehabilitation not once, but three times, (Petition at paragraph 38) The board disagrees. As of this date, Howlette has not yet established his rehabilitation to the satisfaction of the Court that he is required to do per rule 3-23.7 of the Rules. That rule provides in part: The Findings, conclusions, and recommendation are final, if not appealed, except in cases involving a favorable recommendation for applicants seeking readmission to the practice of law after having been disbarred or having resigned pending disciplinary proceedings. In those cases, the board will file a report containing its recommendation with the Supreme Court of Florida for final action by the court. Admission to The Florida Bar for those applicants will occur only by public order of the court. Conclusion In addressing the pending petition, the Court has the following three options: 1. Determine that the only matter properly before the Court is review of the board s decision denying Howlette s October 9, 2009 petition and rule on the merits accordingly. 2. Determine that the board should have the opportunity to review the new information that was presented by Howlette in his February 8, 13
2010 petition for reconsideration and remand the case to the board for further consideration. 3. Determine that Howlette s petition dated October 9, 2009 and his petition for reconsideration dated February 8, 2010 are both properly before the Court and rule on the merits accordingly. If the Court chooses option 1, then the board submits that Howlette has failed to meet his burden of establishing good cause to waive the requirements of rule 4-18.2. Thus, the board requests the entry of an order that denies the relief sought by Howlette and dismisses his petition. If the Court chooses option 2, then the board will review the new information and render a decision in response to the Court s remand of this case. If the Court chooses option 3, then the board defers to the Court s judgment as to whether Howlette has established good cause in that the board has not had the opportunity to consider the additional information and documentation set forth in the petition for reconsideration dated February 8, 2010. Dated this 26 th day of March, 2010. 14
Florida Board of Bar Examiners J. Jeffry Wahlen, Chair Michele A. Gavagni Executive Director By: Thomas Arthur Pobjecky General Counsel Florida Board of Bar Examiners 1891 Eider Court Tallahassee, FL 32399-1750 (850) 487-1292 Florida Bar #211941 Certificate of Service I hereby certify that a true and correct copy of the foregoing Response has been served by U.S. Mail this 26 th day of March, 2010 to Johnnie B. Byrd., Jr., Esquire, 206 North Collins Street, Plant City, Florida 33563-3314. Thomas Arthur Pobjecky Certificate of Type Size and Style I hereby certify that the size and style of type used in this Response are 14 Times New Roman. Thomas Arthur Pobjecky 15