SC95626 Amendments to Rules of the Supreme Court Relating to Admissions to the Bar

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SC95626 Amendments to Rules of the Supreme Court Relating to Admissions to the Bar - (Correction)

State: Florida

Court: Supreme Court

Docket No: sc95626

Case Date: 02/03/2000

Plaintiff: SC95626 Amendments

Defendant: Rules of the Supreme Court Relating to Admissions to the Bar - (Correction)

Preview:FLORIDA SUPREME COURT
NOTICE OF CORRECTION
DATE: February 1, 2000
CASE OF: AMENDMENTS TO THE RULES OF THE SUPREME COURT
RELATING TO ADMISSIONS TO THE BAR
DOCKET NO.   SC95626                                         OPINION FILED: JANUARY 6, 2000
ATTENTION: ALL PUBLISHERS
THE FOLLOWING CORRECTIONS   HAVE   BEEN MADE IN THE
ABOVE OPINION:
1.   PAGE ONE, THE STYLE OF THE CASE HAS CHANGED BY TAKING
OUT THE WORDS “OF FLORIDA.”
2.   PAGE 14, GENERAL COUNSEL FOR PETITIONER HAS BEEN
CORRECTED TO READ, “THOMAS A. POBJECKY.”
SIGNED: JANIE   L. BENTLEY, OPINION CLERK
The corrected hard copy will follow by mail.

Supreme Court of Florida
No. SC95626
AMENDMENTS TO THE RULES OF
THE SUPREME COURT
RELATING TO ADMISSIONS TO THE BAR.
[January 6, 2000]
CORRECTED OPINION
PER CURIAM.
The Florida Board of Bar Examiners (the Board) petitions this Court to
amend the Rules of the Supreme Court Relating to Admissions to the Bar.   We
have jurisdiction. See Art. V, § 15, Fla. Const.   We approve the proposed
amendments as set forth in the attached Appendix.
The Board has petitioned to amend   Rule 4-13 of the Rules of the Supreme
Court Relating to Admissions to the Bar.   This proposed amendment would allow
bar applicants to take the Multistate Professional Responsibility Examination
(MPRE) prior to graduation from law school.    Due to the practical import of this
amendment, the Board also petitions this Court to amend Rule   4-33.1 by deleting

the language in that rule that indicates that MPRE scores attained prior to
completion of law school educational requirements will not be accepted.   Also in
connection with the proposed amendment to Rule 4-13,   the Board   petitions this
Court to amend the following rules to the extent that they   refer to the Florida Bar
Examination, as opposed to the General Bar Examination:   Rule 2-11.1,   Rule 2-
13,   and Rule 4-64.1
The proposed amendments were published in The Florida Bar News on June
15, 1999, with an invitation for comments.   Attorney William Reece Smith, Jr.2
filed a comment in response to the proposed amendment of Rule 4-13.   Mr. Smith
argues that allowing students to take the MPRE while still in law school sends the
wrong message to students, legal professionals, and clients.   Specifically, Mr.
Smith contends that accelerating testing on professional responsibility matters
during law school, while delaying testing of substantive matters until after
graduation, devalues the former in favor of the latter.      Smith also argues that the
1   The Florida Bar Examination is composed of (1)  the General Bar Examination and (2)
the MPRE. Because, under the proposed amended rules, students may sit  for a portion of the
Florida Bar Examination prior to graduation (i.e., the MPRE), it is necessary to change Rules 2-
11.1, 2-13, and 4-64, so that they read “General Bar Examination” rather than “Florida Bar
Examination.”
2 Mr. Smith is a former president of The Florida Bar and the American Bar Association.
He has also taught professional responsibility at Stetson University College of Law on a regular
basis since 1991.
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in-school MPRE would be disruptive of the law school’s academic environment in
that it will disrupt students’ studies; affect the scheduling and content of courses;
and, if the change is to become effective immediately,   not allow instructors
sufficient time to incorporate new developments into their courses.   After much
consideration, as well as input from the Florida Supreme Court Commission on
Professionalism,3 certainly we understand and appreciate the thoughtful concerns
expressed but conclude that the benefits of the changes are more compelling.
First, prior to the amendment, professional responsibility was tested after
substantive matters.   It does not necessarily follow that   professional responsibility
will be devalued if students are   permitted to take the MPRE while still in law
school.   Indeed, it   may place a greater emphasis on ethics if the subject is tested
prior to the testing of substantive matters.   In addition, it is difficult to imagine
why professional responsibility will be devalued when, even if students take the
MPRE while in school,   professional responsibility is also subject to testing during
Part A of the General Bar Examination.4    In fact, professional responsibility has
3   At its meeting on February 18, 1999, the Commission approved a motion to report to
the Court that it favored allowing students the option of taking the MPRE while in law school by
a 10-3 vote.  Dean Richard A. Matasar of the University of Florida College of Law presented the
arguments in favor of the amendment.  Attorney William Reece Smith, Jr., presented the
arguments in opposition to the amendment.
4   The General Bar Examination is subdivided into Part A and Part B.  During Part A,
students may be tested on Chapter 4, the Rules of Professional Conduct and Chapter 5, the Rules
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been tested during Part A of the General Bar Examination seven times during the
past five years.5   Thus, students cannot simply dismiss the subject of professional
responsibility after they complete an in-school MPRE, as Mr. Smith contends.
Second, taking the MPRE while in law school will be no more disruptive
than job interviews, law review, moot court or any of the other   major student
activities.    Law students are not only accustomed to balancing their time, it is a
necessary lesson to learn as a student.
Moreover, it is not clear that allowing students to sit for the MPRE prior to
graduation will affect the methods utilized by law schools to structure the
curriculum or the manner in which professors structure their courses.    In any
event, law schools are in the best position to establish   their pedagogical goals;
thus,   they should be able to create a curriculum that would establish, as a practical
matter, the earliest date when a student would sit for the MPRE.   As for instructors
not having sufficient time to incorporate changes in the ethics field into their
courses, we are confident that   professors are consistently complying with their
continuing duty to stay abreast of recent developments in this area.   Also, it is
Regulating Trust Accounts, of the Rules Regulating the Florida Bar.  See Fla. Bar Admiss. R.,
rule 4.
5   Professional responsibility issues appeared during Part A of the July 1994, July 1995,
February 1996, July 1996, February 1997, July 1998, and July 1999 administrations of the
General Bar Examination.
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important to note that simply because students may take the MPRE while still in
school does not necessarily translate into transforming law school   ethics courses
into bar preparation courses.
Lastly, and of critical importance, allowing students to take the MPRE prior
to graduation merely gives students more flexibility.   Students will not be
required to take the MPRE prior to graduation; they will simply have the option to
do so.
Accordingly, we amend and adopt the rules as reflected in the Appendix to
this opinion.   Underscoring indicates new language; strike-through type indicates
deletions.   The Board’s rationale is included only for explanation and guidance
and is not adopted as an official part of the rules.   These rules shall take effect
upon the release of this opinion.
It is so ordered.
HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and
QUINCE, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE RULES.
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APPENDIX
Rule 2-11.1 is amended to read:
2-11.1 Educational Qualification.   To be admitted into the Florida General
Bar Examination and ultimately recommended for admission to The Florida Bar,
an applicant must have received the degree of Bachelor of Laws or Doctor of
Jurisprudence from an accredited law school (as defined in 4-13.2) at a time when
the law school was accredited or within 12 months of accreditation or be found
educationally qualified by the Board under the alternative method of educational
qualification.   Except as provided in Rule 2-11.2, none of the following shall be
substituted for the required degree from an accredited law school:
(a) private study, correspondence school or law office training;
(b) age or experience;
(c) waived or lowered standards of legal training for particular persons or
groups.
Rule 2-13 is amended to read:
2-13 Prohibitions Against Application.   No person shall be eligible to
apply for admission to The Florida Bar or for admission into the   Florida General
Bar Examination unless the time period as indicated below has expired or the
required condition or status has been met.
Rule 4-13 is amended to read:
4-13 Educational Qualifications.   In order to submit to any portion part of
the   Florida General Bar Examination an applicant must be able to provide
evidence at the time of submission to the General Bar Examination of receipt of,
or completion of the requirements for, the degree of Bachelor of Laws or Doctor
of Jurisprudence from an accredited law school or be found educationally
qualified under the alternative method of educational qualification as provided in
Rule 2-11.2.   The law degree must have been received from an accredited law
school or within 12 months of accreditation.   An applicant may sit for the MPRE
prior to graduation from law school; however, the requirements of Rule 4-18.1 are
applicable.
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Rule 4-33.1 is amended to read:
4-33.1 Transfer of Score.   The applicant shall direct requests to transmit
the score attained on the MPRE to the agency that administers the MPRE.   Scores
are transmitted on a certificate supplied by the agency and should be forwarded
directly by that agency to the Board.    MPRE scores attained by an applicant prior
to the applicant's completion of law school educational requirements as set out in
Rule 4-13 shall not be accepted.
Rule 4-64 is amended to read:
4-64 Invalidation of Examination Results.   Results of the Florida General
Bar Examination shall be invalidated if the applicant fails to establish that the law
school graduation requirements were completed before the applicant submitted to
the Florida General Bar Examination.
RATIONALE:
In Florida Board of Bar Examiners re Amendment to Rules, 548 So. 2d 235
(Fla. 1989), the Board petitioned the Court for a rule change that would authorize
bar applicants to submit to the Multistate Professional Responsibility Examination
(MPRE) prior to graduation from law school, but within twenty-five months of
successful completion of the other parts of the Florida Bar Examination.
The Board reasoned that the MPRE measured examinees' knowledge of
established ethical standards governing the legal profession rather than testing
their technical competence.   Because the MPRE is an awareness test that covers
the narrow subject of American Bar Association ethical standards, the Board
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believed that taking the examination during law school would have little or no
adverse impact upon students' studies.
The Court recounted arguments advanced by the deans of Florida law
schools in opposition to the Board's proposal.   The deans argued that their law
students would devote less time than usual to their law school course work
throughout the weeks preceding the MPRE, and that because of the scheduling of
the MPRE, students would most certainly miss some law school classes in order to
take the examination.   The Court rejected the proposal, concluding that the
benefits to be obtained by permitting students to take the MPRE while still in law
school did not outweigh the possibility that their law studies might be adversely
affected.
In September 1996, the Board held a workshop to examine the existing
components of the Florida Bar Examination and to consider possible components
of the bar examination of the future.   A Task Force, comprised of members of the
Board, was formed to follow-up on suggestions considered during the workshop.
In preparation for the workshop, a survey was administered to the applicants
sitting for the July 1996 General Bar Examination.   The survey included items
about the length of the examination; the subject matter included on the
examination; alternate testing formats including open book examinations and
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performance test examinations; and a request for any comments applicants might
have with regard to the administration of the examination.   The survey results
revealed that the most frequently noted comment was that applicants should be
permitted to take the MPRE while in law school.
The Task Force recommended to the full Board a proposed rule amendment
that would permit law students to take the MPRE before completion of graduation
requirements if the Florida law school deans agreed that they would not oppose
this petition as they previously did in 1989.   In January 1997, the Board wrote to
the Florida law school deans requesting their input on such proposal.
Dean Donald J. Weidner of the Florida State University College of Law, by
letter dated January 29, 1997, stated that he would not oppose a change permitting
law students to take the MPRE while in school, but stated that the professional
responsibility faculty would prefer that students take the MPRE during the
summer rather than during the regular academic year.
Associate Dean Gail E. Sasnett of the University of Florida College of Law,
by letter dated February 11, 1997, stated that the administration supported
allowing students to take the MPRE while they are still in school.
Dean Lizabeth A. Moody of Stetson University, by letter dated February 25,
1997, advised that the faculty members who taught professional ethics were
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polled; they unanimously opposed having their students take the MPRE prior to
graduation.   She stated that the faculty members felt that permitting students   to
take the examination while in law school would constitute a major disruption in
their studies and might also deflect their attention from professional responsibility
questions that are raised in other courses once they had completed the MPRE.
Dean Joseph D. Harbaugh of Nova Southeastern University, by letter dated
March 6, 1997, confirmed his support for allowing law students to sit for the
MPRE.
Associate Dean Jay Silver of St. Thomas University School of Law, by
letter dated June 27, 1997, expressed his "appreciation for the thoughtful intent
behind the proposal."   Dean Silver recommended that students be allowed to take
the MPRE following completion of their law school course on professional
responsibility during either their second or third year of law school.
Dean Samuel C. Thompson, Jr. of the University of Miami School of Law
verbally reported that he had no objection to the Board's proposal.
At the February 12, 1997, Select Committee meeting, Dean Joseph
Harbaugh of Nova Southeastern University stated that he supported the Board's
proposal to accept MPRE results from students while they are still in law school.
Former Dean Jeffrey E. Lewis of the University of Florida spoke against the
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proposal to permit students to take the MPRE prior to graduation, listing the
following reasons:                                                                     (1)   the symbolism of splitting the ethics portion from the rest
of the exam is not a good one; (2)   it is disruptive to academic classes; (3)   it
affects when students take the ethics course; and (4) why allow early testing if the
only reason to do so is that everyone else is doing the same.   The position of Dean
Lewis prevailed with the Select Committee, and the Committee's draft of its report
to the Supreme Court includes a recommendation that graduation be required
before taking any part of the General Bar Examination.
The Board's proposal was also considered by the Student Education and
Admissions to the Bar Committee (a standing committee of The Florida Bar) at its
June 27, 1997, meeting.   By a vote of 16 to 1, the Committee endorsed the change
to allow law students to take the MPRE prior to graduation.
In October 1997, the Board petitioned the Court to amend several rules of
the Rules of the Supreme Court Relating to Admissions to the Bar, including a
proposal to allow law students to take the MPRE.
By opinion issued on June 4, 1998, the Court declined to adopt the Board's
recommended rule amendment that would authorize law students to take an in-
school MPRE.   Florida Board of Bar Examiners re Amendment to Rules, 712 So.
2d 766 (Fla. 1998).   In so ruling, the Court reasoned:   "The Florida Supreme Court
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Commission on Professionalism is currently studying the issue of allowing law
students to sit for the MPRE and plans to make a recommendation in regard
thereto in the near future."   Id. at 767.
At its meeting on February 18, 1999, the Commission on Professionalism
discussed whether law students should be allowed to sit for the MPRE prior to
graduation.   Dean Richard A. Matasar of the University of Florida College of Law
spoke in favor of the proposal and William Reece Smith, Jr. spoke in opposition.
By a vote of 10 to 3, the Commission voted in favor of the proposal.
The proposed rule amendments would be in line with most other
jurisdictions that administer the MPRE.   During 1993-94, 37 jurisdictions
responded to a Committee of Bar Admission Administrators' survey, and indicated
that their applicants were allowed to take the MPRE while in law school.
Furthermore, allowing applicants to take the MPRE while in law school would
permit them more flexibility in selecting a convenient place and time for the
examination.
If approved, the proposed rule amendments would still require compliance
with Rule 4-18.1.   Such rule requires the successful completion of all portions of
the bar examination (including the MPRE) within 25 months.   Thus, law students
will defer taking the MPRE until the later part of their law school education.   The
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25 month rule will also ensure that individuals practicing law in a foreign
jurisdiction for a number of years will be required to demonstrate their current
knowledge of legal ethics and the rules of professional conduct by taking and
passing the MPRE along with the other parts of Florida's bar examination.
The adoption of the Board's proposal will coordinate with the adoption of
new test specifications for the MPRE adopted by the National Conference of Bar
Examiners.   Such specifications became effective with the March 1999
administration of the MPRE and provide for a more relevant and comprehensive
coverage of ethical and professional issues facing members of the legal profession.
The MPRE will now "be based on the law governing the conduct of lawyers,
including the disciplinary rules of professional conduct currently articulated in the
ABA Model Rules of Professional Conduct, the ABA Code of Judicial Conduct,
as well as controlling constitutional decisions and generally accepted principles
established in leading federal and state cases and in procedural and evidentiary
rules."   National Conference of Bar Examiners, The MPRE 1999 Information
Booklet 2.
The importance of legal ethics and professionalism will also continue to be
emphasized by the Board.   For example, Rule 4-33.2 increases the minimum
passing score on the MPRE from 70 to 75 in 1999, and then to 80 after 1999.   As
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authorized by Rule 4-22, the Board will continue to test regularly on the rules of
The Florida Bar pertaining to professional conduct and trust accounts in essay
questions under Part A of the General Bar Examination.   Lastly, bar applicants in
Florida will still be required to certify under oath that they have read Chapter 4
(Rules of Professional Conduct) and Chapter 5 (Rules Regulating Trust Accounts)
of the Rules Regulating The Florida Bar.    See Fla. Bar Admiss. R. 3-14.1(f).
Original Proceeding - Florida Board of Bar Examiners Rules
Franklin R. Harrison, Chair, Kathryn E. Ressel, Executive Director, and Thomas
A. Pobjecky, General Counsel, Tallahassee, Florida,
for Petitioner
Wm. Reece Smith, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.,
Tampa, Florida,
Responding
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