Florida Bar faces controversy over out-of-state lawyers

BY DARA KAM
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, August 4, 2015…… In his first speech as president of The Florida Bar a little more than a month ago, Ramon Abadin urged his colleagues to "go far and do big things."

Six weeks later, Abadin is at the center of a controversy over a proposal that would allow out-of-state lawyers to practice in Florida without taking the state's Bar exam, considered to be one of the nation's most rigorous.

Opponents of the plan have accused Abadin of pushing the idea, the result of a two-year study that is part of the "Vision 2016" agenda launched in 2013 by then-Florida Bar President Eugene Pettis.

The debate --- lopsided, thus far --- swirls around a panel's recommendations posed at a Bar meeting last month that would allow "admission by motion" into the Bar for out-of-state lawyers who meet certain criteria and who are licensed in states that allow "reciprocity."

About 40 other states already allow some sort of entrée without taking an exam, but some Florida lawyers are bristling at the notion.

The campaign against the proposal, led by Palm Beach Gardens lawyer Lloyd Schwed, and ensuing media attention grew so loud that last week Abadin sent a statement about the issue to all of the Bar's 100,000 members. Abadin asked them to submit comments to a special email address created specifically to log input on the topic.

Under the criteria suggested by the Bar's Multi-jurisdictional Practice-State Focus Committee, out-of-state lawyers who have been practicing for at least five of the past seven years before they apply would be eligible. Also, "admission by motion" would only be available to lawyers who are from states that allow Florida Bar members to practice without a written or oral exam.

In addition, admission by motion would only be available to lawyers who haven't failed the Florida Bar exam within five years of applying. Applicants would also have to have a law degree from law schools approved by the American Bar Association at the time they graduated.

Applicants also would have to be in good standing in all jurisdictions where they hold licenses and couldn't be subject to discipline anywhere else when they apply. They would be subject to a "character and fitness" review, which includes "satisfactory evidence of good moral character," knowledge of the "standards and ideals" of the profession, and proof that they are fit to be a lawyer, something also required of all Florida Bar applicants.

Florida law already allows out-of-state lawyers to represent clients on a "pro hac vice" basis, but only in specific cases if a judge permits it.

In its 45-page preliminary report, the Bar committee noted that "the need for multijurisdictional practice has become the norm rather than the exception" and that clients expect it.

The review showed "how Florida lawyers' need to freely engage in cross-border practice was not only restricting clients' freedom of choice, but also placing Florida lawyers at a competitive disadvantage in the marketplace," the committee wrote.

"In continuing to maintain barriers to cross-border practice under the existing rules, the Committee analyzed whether Florida was making a principled decision based on sound principles and determined it was not," the report reads.

The proposal is still in the early stages, Abadin said, and could change significantly before --- and if --- the Bar's Board of Governors decides to act on it.

But whatever the outcome, Abadin said Florida lawyers need to discuss the idea, one of many now being considered as ways to modernize the Bar.

"(Lawyers) take hard problems and we analyze them and we get to the truth. That's what we need here. We need an honest, open discourse on these issues," he said.

And Abadin said he's glad that lawyers, who have largely ignored the Vision 2016 agenda until now, "are now paying attention and engaged," even though he's been demonized for what is viewed by some as his support for the proposal.

"What I hope we do now is instead of saying 'yes' or 'no,' instead of being afraid of the discussion, we do what lawyers do every day. Engage in an educated, reasoned dialogue about the changes, many of which are inevitable in our practice, due to our economy changing," Abadin, who said he is not advocating for anything, said in a telephone interview.

The issue has put Schwed and Abadin --- Schwed said the Bar president attended his wedding ceremony 26 years ago --- at odds.

Schwed, who heads a small firm of five lawyers, has issued several email calls-to-arms outlining problems in the plan and urging his fellow attorneys to speak out against it. Schwed said he's sent the missives to at least 2,000 lawyers.

Schwed has also messaged Abadin and spoken with him on the phone.

"His responsibility in The Florida Bar is to make sure that Florida lawyers that are practicing here really know their stuff. He should be protecting Florida citizens from incompetent out-of-state lawyers who come here and don't know a thing about Florida law. People can get hurt," Schwed said.

Schwed insists that what he calls "a flawed proposal" would put Floridians --- including a large number of vulnerable senior citizens --- at risk by allowing in attorneys who aren't familiar with the intricacies of state law.

"It is not asking too much for someone to have to study Florida law and pass a test proving that they understand Florida law before they're sicced on the Florida citizenry," he said.

Schwed and others are worried that doing away with the Bar exam requirements will open the floodgates into Florida --- which already has a glut of lawyers struggling to regain ground lost during the recession --- of attorneys seeking to retire in the Sunshine State or wanting to expand their practices.

"There's no question there's some self-protection about this," Schwed said. "But the simplest way I can put it is, why would you want to license a bunch of out-of-state lawyers who want to practice law here who are too lazy to study for two months and take a test and prove their competency? It's not good for the Florida citizens. It's not good for the Florida lawyers. It's only good for the out-of-state lawyers."

As of Monday, the Bar had received 250 responses on the issue --- 24 in favor, and 226 in opposition.

"The very idea of admission on reciprocity is idiotic," a respondent who identified himself as lawyer Leonard Marks wrote last week. "Seems the Bar has three goals --- assist the mega law firms, 'diversification' at any cost to appear politically correct, and ruin the practice for small firms and solo practitioners. I am sure you will be getting more thoughtful and constructive input from other members. I have kept it brief as I need to go back to earning a living."

But a message from "Sally Swift" said she supported reciprocity. "Why should lawyers have less mobility than plumbers?" she wrote.

Many of the comments blasted Abadin for even floating the idea.

"I for one and many other members of the Florida Bar will work to see that you are impeached if reciprocity even gets kicked around in the what if stage," a lawyer identified as Drew Lovell wrote.

Abadin dismissed accusations that he is pushing an agenda.

"It's absurd. The people who are making those accusations don't know me. They have no idea what they're talking about," Abadin said. "The issue is the reality that lawyers are facing in America and Florida in particular regarding the changing landscape. The discussion that came out of a subgroup and the recommendation that came out of a subgroup. The fact that people are focusing on me is unpleasant for me but it's part of the territory. It's unfortunate because it changes the discussion."

Pettis, the former Bar president who launched the Vision 2016 program, said the debate needs to focus on the issues, not on personalities or on Abadin as president.

"It's not time for reaction. It's time for us to do what we are trained to do. And that is to have a dialogue," Pettis said. "We as lawyers must decide. Are we going to be the architects of our future or do we think that just saying no is going to be enough to stop the momentum of change in society?"