Supreme Court of Florida
____________
No. SC16-1963
____________
IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA
BAR—RULES 11-1.3 AND 11-1.9 (BIENNIAL PETITION).
[April 13, 2017]
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to
the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction. See art.
V, § 15, Fla. Const.
The Florida Bar (Bar) has filed its biennial petition proposing amendments
to Bar Rules 11-1.3 (Requirements and Limitations) and 11-1.9 (Continuation of
Practice Program After Completion of Law School Program or Graduation),
regarding certified legal interns. Pursuant to Bar Rule 1-12.1(g), the Bar published
formal notice of its intent to file a petition recommending these amendments in
The Florida Bar News. This notice was published on September 1, 2016, and
allowed interested persons thirty days after the filing of the Bar’s petition to
provide comments to the Court. No comments were filed with the Court.
BACKGROUND
In September 2003, The Florida Bar’s Special Board Committee to Study
the Law School Practice Program (Committee) undertook the task of reviewing
and studying Chapter 11 of the Rules Regulating the Florida Bar for the purpose of
suggesting possible amendments to the rules governing the Law School Practice
Program in order to address certain perceived shortcomings. See In re Amends. to
R. Regulating Fla. Bar re Chapter 11 Task Force, 964 So. 2d 690 (Fla. 2007). In
June 2005, the Committee submitted three proposed revisions to Chapter 11 to the
Court for its consideration, one of which was a proposal to amend rules 11-1.3 and
11-1.9 to require law school students and graduates wishing to participate in a
certified legal intern program to apply for admission to The Florida Bar and obtain
a letter of initial clearance as to character and fitness from the Florida Board of Bar
Examiners as a prerequisite to participation. Id. at 691. At that time, multiple
comments were filed opposing this change; however, the Florida Board of Bar
Examiners supported the amendments. Ultimately, the Court adopted a modified
version of the proposal which required registration as a certified legal intern
registrant and receipt of a “letter of clearance as to character and fitness from the
Florida Board of Bar Examiners.” Id. at 692. This change was applied
prospectively only to law school students entering a law school practice program
on August 1, 2008, or later. Id. at 694. In its opinion, the Court stated:
-2-
Under the current versions of rules 11–1.3(a) and 11–1.9(b), the
analysis of an applicant's character and fitness has been the
responsibility of the applicant's law school dean and the agency or
office where the applicant applies to serve. In the past, this has led to
a wide disparity in the quality and quantity of the background
investigations conducted and very serious problems. Not surprisingly,
this resulted in some persons being approved for participation who,
because of disqualifying or other negative incidents in the past, should
not have been accepted if the background information had been
otherwise disclosed. Accordingly, we asked the Committee to
propose an amendment which would provide a plan for a uniform and
high-quality background investigation to be conducted on every
person prior to certification by this Court of authorization to become a
certified intern for acceptance into a law school practice program or as
a post-graduate certified legal intern.
We first address the proposed amendment to rule 11–1.3
(Requirements and Limitations) to add a new subdivision (a). The
proposed amendment would require all law students who seek to be
authorized as certified interns to complete and submit to the Board an
application for admission to the Bar and to obtain an initial clearance
letter from the Board as a prerequisite to participation in the program.
See generally Fla. Bar Admiss. R. 2–21, 2–21.2 & 2–23.
We agree that the Board should be the entity to conduct the
fitness and character screening of law students for participation in the
certified intern program. The Board possesses the most experience in
conducting background investigations designed to determine issues of
character and fitness for the practice of law. It is the entity
responsible for screening applicants for admission to the Bar to ensure
the continued quality and character of those admitted to the practice of
law in this state. It has established an impressive track record of
success in this area over many years and has the staff and expertise to
perform this function.
While we realize that students who seek to become certified
interns are not attorneys and have not taken or passed the bar
examination, we nevertheless believe these students, who actually
provide legal representation to others under the supervision of
members of The Florida Bar, must have the requisite character and
fitness for eventual admission, either to the Bar of this state or other
state bar of their choice. We repose our trust for the accomplishment
of this purpose in the Board. Those certified actually provide legal
-3-
representation to others, albeit under the supervision of a member of
the Bar.
Id. at 691-92.
PROPOSED AMENDMENTS
The Bar now proposes amending rules 11-1.3 (Requirements and
Limitations) and 11-1.9 (Continuation of Practice Program After Completion of
Law School Program or Graduation), to allow a law student or graduate to become
a certified legal intern after passing a Level 2 background investigation, a process
which the Bar states can be completed in one to three weeks. The Bar states that
the process under the current rule can take six to nine months. The proposal aims
to expedite and streamline the process for law students and graduates to obtain
initial clearance from the Florida Board of Bar Examiners in order to participate in
certified legal intern programs. The proposal requires the law student to register
with the Board as a certified legal intern registrant and furnish his or her
fingerprints to enable the Board to conduct a Level 2 background investigation.
Under the proposal, the Board would conduct the investigation “as soon as possible
after the law student submits the registration and appropriate fee” and “issue an
initial letter of clearance to the law student if the results of the Level 2 background
investigation do not demonstrate a lack of honesty, trustworthiness, diligence or
reliability.” The Bar states that this process will ensure that the public is protected
by confirming that the law student has a clear criminal history before being
-4-
certified as a legal intern; it allows the law student to be certified in one to three
weeks, rather than six to nine months; and it requires early application for
admission to The Florida Bar.
According to the petition in this case, during development of the proposals,
the Bar received several comments which noted that since the adoption of the
current rule, participation in certified legal intern programs has significantly fallen
due, at least in part, to the amount of time it takes for a registrant to receive
clearance from the Florida Board of Bar Examiners. Also during the development
of the proposals, the Board made its objections known to the Bar. The Board
objected to the Bar’s proposals on several grounds. First, the Board disputed that
under the current rule, clearance of individuals takes six to nine months; rather, the
Board asserted that from October 2010 through September 2015, the average time
ranged from approximately four to five and a half months. Second, the Board
maintained that it is not possible to determine requisite character and fitness for
eventual admission to The Florida Bar with just a Level 2 background check,
especially when criminal conduct is only one of the fourteen areas of potentially
disqualifying conduct the Board is required to consider under Rule of the Supreme
Court Relating to Admissions to the Bar 3-12. Third, the Board contended that the
standard to be met under the rule—i.e, that the Board will issue a letter of initial
clearance “if the results of the Level 2 background investigation do not
-5-
demonstrate a lack of honesty, trustworthiness, diligence, or reliability”—is very
unclear. And finally, the Board contended that the amendments would have the
unintended consequence of more law students delaying filing the student
registration because there would be no requirement to file an early application to
obtain certification as a legal intern.
CONCLUSION
On balance, we conclude that the Bar’s proposal in this case is not an
acceptable compromise between the position of the Florida Board of Bar
Examiners—the entity in which we have reposed our trust to carry out the
responsibility of screening the character and fitness of certified legal intern
registrants—and the positions of the law schools and programs who rely on the
participation of certified legal interns to help serve their clients. Although we are
concerned that the current rule may have contributed to the reduced participation in
certified legal intern programs, and we agree that this reduction in participation is
detrimental to law students, law schools, and the programs themselves, we cannot
place those interests, no matter how important, above our duty to ensure that the
participating students and graduates, who actually provide legal representation
under the supervision of members of The Florida Bar, possess the requisite
character and fitness for eventual admission to the practice of law, either in this
state or another state of their choice. For this reason, we decline to adopt the
-6-
proposed amendments at this time. The Florida Board of Bar Examiners and the
law schools should continue to stress the benefits of participation and the need for
early application to the various clinical and internship opportunities that are
available. We strongly encourage law school students to continue to participate in
certified legal intern programs and to register early with the Florida Board of Bar
Examiners in order to timely receive clearance under the current rules.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ.,
concur.
LEWIS, J., concurs in result.
CANADY, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., concurring in result.
I agree that we should not adopt the proposed rule changes. But I would
refer the matter back to the Bar for the development of a proposal that would shift
responsibility for providing letters of clearance for certified legal interns from the
Board of Bar Examiners to the Bar itself. I believe that the public interest can be
adequately protected through the suggested Level 2 background investigation
coupled with supervision of interns by members of The Florida Bar. And I believe
that this approach can most appropriately be implemented by the Bar.
Original Proceeding – Rules Regulating The Florida Bar
-7-
John F. Harkness, Jr., Executive Director, William J. Schifino, Jr., President,
Michael J. Higer, President-elect, Gordon J. Glover, Young Lawyers Division
President 2015-16, Lori S. Holcomb, Director, Division of Ethics and Consumer
Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar,
Tallahassee, Florida,
for Petitioner
-8-
In RE: AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR—RULES 11-1.3 AND 11-1.9 (BIENNIAL PETITION)
Combined Opinion