IN THE SUPREME COURT OF FLORIDA

FLORIDA BOARD OF BAR EXAMINERS )RE: ROBERT LYNNE ) Case No. SC03-967________________________________________ ) CONFIDENTIAL

BOARD=S ANSWER BRIEF

Submitted by:

FLORIDA BOARD OF BAREXAMINERSMICHAEL J. KEANE, CHAIR

Eleanor Mitchell HunterExecutive Director

Thomas A. PobjeckyGeneral CounselFlorida Board of Bar Examiners1891 Eider CourtTallahassee, FL 32399-1750(850) 487-1292Florida Bar #211941

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TABLE OF CONTENTSBOARD=S ANSWER BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13I. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TO PRESENTCLEAR AND CONVINCING EVIDENCE AS TO HIS UNIMPEACHABLECHARACTER AND MORAL STANDING IN THE COMMUNITY. (LYNNE=SPOINT I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

II THE BOARD PROPERLY FOUND THAT LYNNE FAILED TO PRESENTCLEAR AND CONVINCING EVIDENCE AS TO HIS PERSONALASSURANCES, SUPPORTED BY CORROBORATING EVIDENCE, OF ADESIRE AND INTENTION TO CONDUCT HIMSELF IN AN EXEMPLARYFASHION IN THE FUTURE. (LYNNE=S POINT II) . . . . . . . . . . . . . . . . . . . 22

III. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TO PRESENTCLEAR AND CONVINCING EVIDENCE AS TO HIS REASONABLEEFFORTS IN ADDRESSING THE ISSUE OF RESTITUTION. (LYNNE=SPOINT III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

IV. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TO PRESENTCLEAR AND CONVINCING EVIDENCE OF HIS COMPLIANCE WITH THEREQUIREMENT OF POSITIVE ACTION. (LYNNE=S POINT IV) . . . . . . . . 31V. THE BOARD= PROPERLY RULED NOT TO EXTEND LYNNE'S BAREXAMINATION SCORES PAST THE FIVE YEAR DEADLINE IN LIGHT OFTHE BOARD=S UNFAVORABLE RECOMMENDATION FOLLOWING HISFORMAL HEARING (LYNNE=S POINT V) . . . . . . . . . . . . . . . . . . . . . . . . . 35

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . . . . . . . . . . . . . . 42

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TABLE OF CITATIONSCases Page

Amendments to the Rules Regulating The Florida Bar,795 So.2d 1 (Fla. 2001)YYYYYYYYYYYYYYY.. 27

Application of Matthews,462 A.2d 165 (N.J. 1983)YYYYYYYYYYYYYY.. 24

Baldwin v. Baldwin,576 So.2d 400 (Fla. 5th DCA 1991)YYYYYYYYYY. 40

Canakaris v. Canakaris,382 So.2d 1197 (Fla. 1980)YYYYYYYYYYYYY 40

Florida Board of Bar Examiners re Amendment to Rules,451 So.2d 1384 (Fla. 1984)YYYYYYYYYYYYYY 14

Florida Board of Bar Examiners re Amendment to Rules,462 So.2d 463 (Fla. 1985)YYYYYYYYYYYYYY 35

Florida Board of Bar Examiners re Amendment to Rules,626 So.2d 156 (Fla. 1993)YYYYYYYYYYYYYY 35

Florida Board of Bar Examiners re J.A.B.,762 So.2d 518 (Fla. 2000)YYYYYYYYYYYYYY. 17

Florida Board of Bar Examiners re J.J.T.,761 So.2d 1094 (Fla. 2000)YYYYYYYYYYYYYY 15,33

Florida Board of Bar Examiners re Amendment to Rules re Kwasnik,508 So.2d 338 (Fla. 1987)YYYYYYYYYYYYYY. 37

Florida Board of Bar Examiners re L.H.H.,660 So.2d 1046 (Fla. 1995)YYYYYYYYYYYYYY 13,20

Florida Board of Bar Examiners re M.L.B.,766 So.2d 994 (Fla. 2000)YYYYYYYYYYYYYY. 20,33

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Cases Page

Florida Board of Bar Examiners re P.T.R.,662 So.2d 334 (Fla. 1995)YYYYYYYYYYYYYY 33

Florida Board of Bar Examiners re T.J.F.,770 So.2d 676 (Fla. 2000)YYYYYYYYYYYYYY 19

Florida Board of Bar Examiners re W.H.V.D.,653 So.2d 386 (Fla. 1995)YYYYYYYYYYYYYY.. 15,25,37

Giannini v. Real et al,911 F.2d 354 (9th Cir. 1990)YYYYYYYYYYYYYY. 39

In re Dawson,131 So.2d 472 (Fla. 1961)YYYYYYYYYYYYYY. 27

In re Hale,433 So.2d 969 (Fla. 1983)YYYYYYYYYYYYYY.. 40

In re Russell,236 So.2d 767 (Fla. 1970)YYYYYYYYYYYYYY. 38

Kosseff v. Board of Bar Examiners,475 A.2d 349 (Del. 1984)YYYYYYYYYYYYYYY 23

Petition of Cuban-American Lawyers Program,367 So.2d 218 (Fla. 1979)YYYYYYYYYYYYYY. 39

Petition of Wolf,257 So.2d 547 (Fla. 1972)YYYYYYYYYYYYYY.. 33

Schware v. Board of Bar Examiners,353 U.S. 232 (1957)YYYYYYYYYYYYYYYYY 38

The Florida Bar v. Canto,668 So.2d 583 (Fla. 1996)YYYYYYYYYYYYYY. 17

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Cases Page

The Florida Bar v. Hale,762 So.2d 515 (Fla. 2000)YYYYYYYYYYYYYY 13

The Florida Bar v. Hessler,493 So.2d 1029 (Fla. 1986)YYYYYYYYYYYYY... 27

The Florida Bar re Janssen,643 So.2d 1065 (Fla. 1994)YYYYYYYYYYYYYY. 14

The Florida Bar re Timson301 So.2d 448 (Fla. 1974)YYYYYYYYYYYYYY 14

The Florida Bar v. Wolfe,767 So.2d 1174 (Fla. 2000)YYYYYYYYYYYYY.. 28

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JURISDICTIONThe Board acknowledges that the Court has jurisdiction of this matter pursuant

to Article V, Section 15 of the Florida Constitution and Rule 3-40.1 of the Rules of theSupreme Court Relating to Admissions to the Bar (hereinafter referred to as "Rules").

PRELIMINARY STATEMENTThe Board will use the following designations:(Brief) references Lynne's Amended Initial Brief.(T) references the transcript of Lynne's formal hearing held January 16, 2003. (FF) references the Board's Findings of Fact and Conclusions of Law issued

April 4, 2003.(BE) references the Board exhibits introduced into the record at the January

2003 formal hearing. (AE) references the exhibits introduced into the record by Lynne at the January

2003 formal hearing.(E1) references Lynne=s Petition for Reconsideration served May 23, 2003 and

submitted as Exhibit E1 of the record on appeal.(E2) references the Office of General Counsel=s Response to Petition for

Reconsideration served June 9, 2003 and submitted as Exhibit E2 of the record onappeal.

(E3) references the Board=s letter dated July 11, 2003 notifying Lynne of thedenial of his Petition for Reconsideration and submitted as Exhibit E3 of the recordon appeal.

1 The findings were inadvertently dated April 4, 2002 instead of April 4, 2003.

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STATEMENT OF THE CASE AND FACTS

The Board accepts the Statement of the Case and Facts as presented by Lynneexcept for the legal arguments and the conclusions contained therein (includingcitations to cases) and with the following additions and objection.

Lynne previously resigned from The Florida Bar while disciplinary proceedingswere pending. As such, his case is exempt from the standard confidential provisionspertaining to bar applicants and the proceedings before the Court are a matter ofpublic record. Rules 3-22.7 and 3-23.7 of the Rules.

Lynne appeared before the Board for a formal rehabilitation hearing on January16, 2003. (T 1) Lynne is currently employed as a paralegal and he earnedapproximately $104,000 last year. (T 54, 95) Following that hearing, the Board issuedits Findings of Fact, Conclusions of Law, and Recommendation on April 4, 2003.1

The Board found that Lynne had failed to present sufficient evidence as to fourof the elements of rehabilitation. (FF 8-14) One of the specific issues addressed atthe recent formal hearing concerned restitution in the amount of approximately $60,000to the First Union Bank. (FF 11-12)

As to this issue, Lynne introduced into evidence an affidavit from an attorney,Mark B. Slavin. (AE 20) In his affidavit, Mr. Slavin stated that he had been retainedby Lynne Ato attempt to negotiate a reimbursement to First Union BankY.@ (Id.) Mr.Slavin concluded his affidavit by stating: AThat I have made diligent attempts tosolicit a settlement demand from First Union BankY. That to date, First Union hasfailed to respond to any inquiries with any settlement demand of Robert Lynne.@ (Id.)During his formal hearing, Lynne testified that he instructed his attorney to beginnegotiations with the bank by offering $5,000. (T 90)

Based upon its review of the record, the Board found that the efforts taken byMr. Slavin on Lynne=s behalf were, at best, Aunclear.@ The Board elaborated:ATo satisfy this element of restitution, there should be written documentation of Mr.Slavin=s efforts and the position of the bank.@ (FF 12)

Lynne petitioned the Board for reconsideration of its decision. (E1) By hispetition, Lynne sought to supplement the formal hearing record by obtainingauthorization to take the deposition of a representative of Wachovia Bank (thesuccessor bank of First Union Bank). In support of his request, Lynne attached Aaproposed affidavit@ from the bank representative. The affidavit was unsigned andunexecuted. (E1 at Exhibit A)

The Office of General Counsel filed a response to Lynne=s Petition forReconsideration. (E2) The Office of General Counsel argued that Lynne=s petitionsought to supplement the formal hearing record with additional evidence ofrehabilitation contrary to the provisions of Rule 3-30 of the Rules. (Id. at 2) Theresponse also contained the argument that Lynne=s request to supplement the recordfailed to meet the threshold requirement of Adue diligence@ contained in Rule 3-30.(Id. at 2-3) Lynne=s petition was subsequently denied by the Board. (E3)

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SUMMARY OF ARGUMENTLynne resigned from The Florida Bar while disciplinary proceedings were

pending. Lynne had engaged in grave misconduct involving multiple thefts from hisformer law firm. Subsequent to his resignation, Lynne also showed a lack of candorin his dealings with others. The Board properly evaluated Lynne=s evidence ofrehabilitation in light of the gravity of his past misconduct.

Having engaged in disqualifying conduct in the past, Lynne was required topresent clear and convincing evidence of his rehabilitation at his formal hearing. Basedupon its evaluation of Lynne=s presentation, the Board properly found that hisevidence was insufficient as to several of the elements of rehabilitation. The Boardalso appropriately ruled that Lynne=s bar examination scores should not be extendedpast the 5-year deadline contained in Rule 4-18.2 of the Rules.

Lynne is not permanently barred from gaining admission to The Florida Bar.He will have the opportunity to apply again in the future and to demonstrate his full andcomplete reformation from his past misconduct. The Court is, therefore, requestedto affirm the Board's findings, conclusions and recommendation that Lynne not beadmitted to the practice of law in Florida at this time.

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ARGUMENT

INTRODUCTIONIn 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 disbarredattorney, should be readmitted. The Court observed: AAn applicant such as L.H.H.bears the heavy burden of establishing rehabilitation. Thus, L.H.H.'s disbarment aloneis disqualifying unless he can show clear and convincing evidence of rehabilitation.@Id. at 1048 (Citation and footnote omitted). In denying the petitioner's application, theCourt reaffirmed that "the rehabilitation requirement is stringent." Id. at 1049.

Lynne actually resigned from The Florida Bar while disciplinary proceedingswere pending against him. The Court, however, has held that Adisciplinaryresignation is tantamount to disbarment.@ The Florida Bar v. Hale, 762 So.2d 515,517 (Fla. 2000).

The issue presented by Lynne on appeal is the correctness of the Board'sevaluation of his presentation of evidence as to his rehabilitation. Lynne's burden asto this issue is set forth in the Court's rules governing admission to the Bar. As statedin Rule 3-13 of the Rules:

Any applicant or registrant who affirmatively asserts rehabilitationfrom prior conduct which bears adversely upon such person's characterand fitness for admission to the Bar shall be required to produce clearand convincing evidence of such rehabilitation....

In 1974, this Court listed the following elements of rehabilitation in casesinvolving reinstatement of disbarred attorneys:

1. Strict compliance with the disciplinary order.2. Evidence of unimpeachable character.3. Clear evidence of a good reputation for professional ability.4. Evidence of lack of malice and ill feeling toward those

involved in bringing the disciplinary proceedings.5. Personal assurances of sense of repentance and desire to

conduct practice in exemplary fashion in the future.6. Restitution of funds.

The Florida Bar in re Timson, 301 So.2d 448, 449 (Fla. 1974). See also The FloridaBar re Janssen, 643 So.2d 1065, 1066 (Fla. 1994).

In 1984, this Court amended former Article III, Section 4 of the Rules to adda specific section on the elements of rehabilitation when asserted by an applicant at abar admissions hearing. Florida Board of Bar Examiners re Amendment to Rules,451 So.2d 1384 (Fla. 1984). Such provision incorporated the six elements from theTimson decision and also added the following additional element:

(7) Positive action showing rehabilitation by such things as aperson's occupation, religion, community or civic service. Merelyshowing that an individual is now living as and doing those things he orshe should have done throughout life, although necessary to prove

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rehabilitation, does not prove that the individual has undertaken a usefuland constructive place in society. The requirement of positive action isappropriate for applicants for admission to the Bar because service toone's community is an implied obligation of members of the Bar.

In evaluating the sufficiency of evidence of rehabilitation by a bar applicant, theseverity of the misconduct must be considered. Such principle was recognized by theCourt 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, wecannot disregard the nature of past misconduct." Id. at 388.

Such principle was reaffirmed by the Court in Florida Board of Bar Examinersre J.J.T., 761 So.2d 1094 (Fla. 2000). There, the Court added: "The more serious themisconduct, the greater the showing of rehabilitation that will be required." Id. at1096.

The above-cited Florida decisions all soundly resolve that the degree ofrehabilitation required in a particular case is dependent upon the nature and extent ofthe past misconduct. Stated differently, the lower an individual sinks in his or hermisconduct, the higher such individual will need to ascend in convincing the Board andthe Court of his or her reformation.

In its most recent findings of fact and conclusions of law, the Board highlightedthe seriousness of Lynne=s past misconduct:

The record before the Board is uncontested that the applicantengaged in very serious misconduct while a practicing attorney in Florida.The applicant's misconduct resulted in his criminal prosecution andresignation from The Florida Bar. As described in the Board's findings,following the applicant's 1999 formal hearing, the applicant "engagedrepeatedly in criminal conduct over an extended period involving theftsfrom his law firm." (BE 3 at 19)

(FF 14) As found by the Board after Lynne=s first formal hearing, Lynne had also

exhibited a disqualifying lack of candor in his dealings with others subsequent to hisresignation from The Florida Bar. (BE 3 at 19) Thus, the sole issue before the Courtis whether the Board properly applied the burden of "clear and convincing evidence"in its evaluation of Lynne's rehabilitation in light of his past misconduct.

Based upon a fair and thorough evaluation of the record produced at Lynne'sformal rehabilitation hearing, the Board found that he had complied with the followingelements of rehabilitation: strict compliance with any applicable orders; goodreputation for professional ability; and lack of malice. (FF 8-9) The Board furtherfound that Lynne had failed to present clear and convincing evidence as to theremaining elements of rehabilitation. The Board=s findings as to these four elementswill be separately discussed under Point I through IV below.

Regarding the appropriate standard of review in this case, the Court has held inan attorney discipline case:

A referee's findings of fact in attorney discipline proceedings are

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presumed correct and will be upheld unless clearly erroneous and lackingin evidentiary support. The party seeking review in a bar disciplineproceeding has the burden of showing that the referee's findings areclearly erroneous or unsupported by the record. Unless that burden ismet, the referee's findings and recommendations will be upheld onreview.

The Florida Bar v. Canto, 668 So.2d 583, 584 (Fla. 1996) (citations omitted). TheBoard submits that such ruling should equally apply to findings and recommendationby the Board rendered upon a record produced at a formal hearing. See FloridaBoard of Bar Examiners re J.A.B. 762 So.2d 518, 520 (Fla. 2000) (AClearly, [theapplicant]=s challenge to the Board=s findings is simply a question of credibility,which is a question the Board was in the best position to answerY.@).

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I. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TOPRESENT CLEAR AND CONVINCING EVIDENCE AS TO HIS

UNIMPEACHABLE CHARACTER AND MORAL STANDING IN THECOMMUNITY. (LYNNE=S POINT I)

Rule 3-13(b) lists the following element of rehabilitation: Aunimpeachablecharacter and moral standing in the community.@ As to this element, the Board found:

Based upon the record before it, the Board finds that the applicanthas not presented sufficient evidence of this element of rehabilitation.For example, of the applicant's four witnesses, one of them (Ms.Rushlow) had limited dealings with the applicant. Two of the remainingthree witness[es] were family members (a brother-in-law and a son). Theapplicant's presentation simply lacked a sufficient number of uninterestedindividuals who could testify objectively and knowledgeably as to theapplicant's character and moral standing in the community.

The record is also unclear if the individuals offering characterevidence on the applicant's behalf either by testimony, letter or affidavitwere aware of the applicant's testimony at his 1999 formal hearing. Asmore fully discussed under (e) below, the applicant, by his ownadmissions, was not forthright at that hearing and was clearly not readyfor readmission at that time.

(FF 8-9)The deficiencies noted by the Board are fully supported by the record before

the Court. Of the four live witnesses presented by Lynne, one was his brother-in-lawand another was his son. (T 105, 117)

The representative of Florida Lawyers Assistance who testified live has onlyknown Lynne for Aa little over a year.@ (T 110) Furthermore, the issue of Lynne=ssobriety was not in issue. In fact, in the Board=s findings issued after Lynne=s firstformal hearing, the Board specifically found Aproven the applicant=s affirmativedefense #13 that the applicant has not used illegal narcotics since December 1992.@(BE 3 at 17) See Florida Board of Bar Examiners re T.J.F., 770 So.2d 676, 679(Fla. 2000) (There the applicant presented evidence as to her ability to be a competentand skillful attorney but the Court observed that Acompetence and skill are not theissues with which the Board was concerned.@).

In his argument before the Court, Lynne mischaracterizes one of the deficienciesnoted by the Board. Lynne asserts: AThe Board further incorrectly concluded thatthese witnesses knew nothing of the Petitioner=s past wrongdoings.@ (Brief 13)

Contrary to Lynne=s claim, the Board never made such a sweeping finding.The Board, however, did specifically find the record was Aunclear@ as to whether theindividuals endorsing Lynne=s readmission (by live testimony or character letter)Awere aware of [Lynne=s] testimony at his 1999 formal hearing.@ (FF 9) At thathearing, Lynne now acknowledges that he was not honest with the Board and that histestimony was lacking in candor. (FF 51-52)

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The Board appropriately noted an apparent unawareness of such lack of candorby those individuals now willing to endorse his readmission. As confirmed by theCourt:

It is important for those attesting to an applicant's moral characterto be aware of his or her past misconduct, and recommendations fromthose who are unaware of it may be given less weight. When one makesrecommendations for an individual's admission into a profession thatdemands the highest levels of trust and confidence, it is exceedinglyimportant that the recommendation be viewed only through the scope ofknowledge of facts upon which it has been based.

Florida Board of Bar Examiners re M.L.B., 766 So.2d 994, 997 (Fla. 2000) (citationomitted).

In reviewing the Board's finding, it must be remembered that the burden is uponLynne to demonstrate his rehabilitation by "clear and convincing evidence." Rule 3-13of the Rules. It would indeed be a rare occasion if a bar applicant at a formal hearingfailed to produce favorable character evidence from individuals such as relatives,friends, employers or colleagues. Such a fact highlights the inherent nature ofcharacter evidence. Because of its ready availability and potential partiality, characterevidence must be weighed carefully in determining whether a bar applicant hasdemonstrated sufficient rehabilitation.

On many occasions, the weighing process by the Board results in a favorabledecision and the applicant is duly recommended for membership in The Florida Bar.Such cases, of course, never reach this stage of review. On other occasions, theBoard properly finds that the applicant's presentation fails to demonstrate reformationfrom prior misconduct in a clear and convincing manner as the Board found in Lynne'scase. See e.g., Florida Board of Bar Examiners re L.H.H., supra at 1049 ("Weshare the Board's concern that...his evidence of rehabilitation since his 1984disbarment is not clear and convincing.@).

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II THE BOARD PROPERLY FOUND THAT LYNNE FAILED TOPRESENT CLEAR AND CONVINCING EVIDENCE AS TO HIS

PERSONAL ASSURANCES, SUPPORTED BY CORROBORATINGEVIDENCE, OF A DESIRE AND INTENTION TO CONDUCT HIMSELFIN AN EXEMPLARY FASHION IN THE FUTURE. (LYNNE=S POINT II)

Rule 3-13(e) lists the following element of rehabilitation: Apersonal assurances,supported by corroborating evidence, of a desire and intention to conduct one's selfin an exemplary fashion in the future.@ As to this element, the Board found:

In reaching this finding, the Board has considered thecircumstances resulting in the Board's unfavorable recommendation in1999 and has weighed those circumstances against the applicant'sevidence presented at his recent formal rehabilitation hearing. Inevaluating such evidence, the Board finds that the applicant's offering ofcorroborating evidence was insufficient to convince the Board that hewas fully rehabilitated from his past prior misconduct.

In particular, the Board is influenced by the applicant's admissionthat he was not completely candid and open with the Board during hisprevious formal hearing. (T 52) The applicant elaborated:

YI mean, there were things that I said that were so off-the-wall. There were things that were said that should have beencorrected by me. There were answers that were not given that Iknew answers to.

(T 51)As the Supreme Court of Florida has stated: "A lack of candor on

the part of an applicant is intolerable and disqualifying for membershipin the Bar." Florida Board of Bar Examiners re C.A.M., 639 So.2d 612,613 (Fla. 1994). Such principle is especially applicable in this case inlight of the applicant's past actions of deception and dishonesty as apracticing attorney.

During his most recent hearing, the applicant testified that theBoard's previous unfavorable recommendation "was a wake-up call." (T 49) The applicant admitted that he "was not ready to be readmitted"at that time in that he "was also still not at a point where [he] was beingsufficiently honest with [him]self." (T 50) The applicant alsoacknowledged that the three years since his formal hearing "seems like ashort period of time to balance the scales back up,Y" (T 100)

The Board agrees. The Board thus finds that the applicant's recentpresentation was insufficient to establish fully his desire and intention toconduct himself in an exemplary fashion in the future. Accordingly, theBoard finds that the applicant failed to produce clear and convincingevidence as to this element.

(FF 10-11)In his argument, Lynne asks why he is being punished by the Board for

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admitting his lack of candor at his 1999 formal hearing. (Brief 24) Contrary toLynne=s suggestion, the issue of punishment should not be a consideration whendetermining the character and fitness of a bar applicant. Such principle was well statedby the Supreme Court of Delaware in its decision in Kosseff v. Board of BarExaminers, 475 A.2d 349 (Del. 1984):

[The applicant] now contends that he has been "punished enough"by the delay which these proceedings have imposed upon his admissionto our Bar. That view is a misconception of the roles of the Board andthis Court in the admissions process. Denial of admission to the Bar isnot a punitive action. Rather, it is based on the principle that the Courthas an unyielding obligation to "protect the public from incompetent anddishonest lawyers, and to assure that those admitted to the Bar possessthe requisite attributes of good moral character, learning and ability."Once again, the Board has faced that task squarely and reached the onlyproper result open to it on this record.

Id. at 354 (Citation omitted). In Lynne=s case, the Board faced a similar task inassessing his evidence of rehabilitation and it Areached the only proper result opento it on this record.@

Lynne=s lack of candor is the real issue. The Board cannot simply overlookLynne=s lack of candor during his first formal hearing. Absolute candor is essentialfor an applicant, like Lynne who is asserting rehabilitation from past misconduct. Asstated by one court:

A variety of types of evidence have been found to be probative ofreform and rehabilitation. In all instances, the applicant must displaycomplete candor in all filings and proceedings required by the Committeeon Character.

Application of Matthews, 462 A.2d 165, 176 (N.J. 1983).As an applicant who must establish his rehabilitation from extremely serious

misconduct, Lynne has to show that his actions will be "exemplary." Exemplary isdefined as "worthy of being imitated" or "commendable." THE AMERICANHERITAGE DICTIONARY OF THE ENGLISH LANGUAGE. The Board properlyfound that Lynne=s failure to be honest and candid with the Board at his first formalhearing was neither worthy of imitation nor commendable.

Will Lynne=s lack of candor during the bar admissions process permanentlydisqualify him from ever achieving readmission to the profession that he oncedishonored? The Court provided the following answer to that question in a case thatalso involved a bar applicant who, like Lynne, had been previously denied by theBoard on two occasions

Our holding does not...erect a permanent bar to admission. On ashowing of rehabilitation, [the applicant] may reapply for admission aftertwo years from the date of the Board's adverse recommendation.

W.H.V.D., supra at 388 (Citation omitted). Similarly, Lynne can again seek

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readmission in two years. At his most recent formal hearing, Lynne apologized for his lack of honesty at

his 1999 formal hearing. (T 50) This act of contrition is an essential step on Lynne=sroad to regain his lost membership in The Florida Bar. Should Lynne reapply in twoyears he must, however, be able to demonstrate that his conduct at and since his 2003formal hearing has been so exemplary that there will be no need for him to offer anapology to the Board.

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III. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TOPRESENT CLEAR AND CONVINCING EVIDENCE AS TO HISREASONABLE EFFORTS IN ADDRESSING THE ISSUE OFRESTITUTION. (LYNNE=S POINT III)

Rule 3-13(f) lists the following element of rehabilitation: Arestitution of fundsor property, where applicable.@ As to this element, the Board found:

Richard Sadow, the applicant's former law partner, filed suitagainst First Union National Bank for cashing checks with forgedendorsements presented by the applicant. (Formal Hearing Record -Applicant's Exhibit 25, hereinafter referred to as "AE" followed by theExhibit number) The suit was settled for around $60,000.00 paid by thebank to Mr. Sadow. (T 23)

During his first formal hearing, the applicant acknowledged that thebank was out $60,000.00 due to his criminal conduct. (Formal HearingRecord - Board's Exhibit 2 at 250, hereinafter referred to as "BE"followed by the Exhibit number) The applicant further testified that hehad not made any restitution for the bank's loss. (BE 2 at 251) In fact,the applicant had not even considered the possibility of making restitutionuntil it was mentioned to him at the first formal hearing. (BE 2 at 251)

During his direct examination at his recent formal hearing, theapplicant testified that he instructed Mark Slavin, an attorney, to "contactthe bank to work something out." (T 25) The applicant further testifiedthat the bank never responded to his attorney's efforts. (T 26) Theapplicant also introduced an affidavit from Mr. Slavin attesting that "FirstUnion has failed to respond to any inquiries with any settlement demandof [the applicant]." (AE 20) During questioning by a Board member, theapplicant admitted that his attorney was instructed to begin negotiationswith the bank by offering $5,000.00. (T 90)

Based upon the record before it, the Board finds that the applicantsubmitted insufficient evidence to establish his compliance with therequirement of restitution as to First Union National Bank. At best, therecord is unclear as to what efforts were undertaken on the applicant'sbehalf by Mr. Slavin. To satisfy this element of restitution, there shouldbe written documentation of Mr. Slavin's efforts and the position of thebank. The Board, therefore, finds that the applicant failed to produceclear and convincing evidence as to any restitution that may be owing tothe First Union National Bank.

(FF 11-12)Restitution is an essential element of rehabilitation. As observed by the Court

in the case of In re Dawson, 131 So.2d 472, 474 (Fla. 1961):While restitution alone will not ordinarily justify reinstatement, it is

only under exceptional circumstances that reinstatement should beallowed in the absence of restitution, or an extremely diligent effort to

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accomplish it. This should be the rule because restitution is symbolic ofrepentance, honesty and a desire to do the right thing under thecircumstances.

Id. at 474. (Citation omitted). See also The Florida Bar v. Hessler, 493 So.2d 1029,1030 (Fla. 1986) ("If a suspended lawyer wants to enjoy the privilege of practicing lawafter having been convicted of thievery, he should settle the debt created by hisdishonest acts in full before readmission.").

The requisite nature of making restitution by disbarred attorneys and attorneyswho have resigned pending disciplinary proceedings was affirmed by the Courtthrough the adoption of an amendment to the Rules Regulating The Florida Bar.Amendments to the Rules Regulating The Florida Bar, 795 So.2d 1 (Fla. 2001).Rule 3-7.10(n) of the Rules Regulating The Florida Bar, as amended, now providesin part:

No application for readmission following disbarment ordisciplinary resignation may be tendered until such time as all restitutionand disciplinary costs as may have been ordered or assessed have beenpaid together with any interest accrued.

Thus, making restitution is properly viewed as a mandatory prerequisite for seekingreadmission.

In his argument before the Court, Lynne discusses extensively the case of TheFlorida Bar re Wolfe, 767 So.2d 1174 (Fla. 2000). (Brief 34-37) In Wolfe, theattorney was suspended for misappropriations from a trust for which he served as thetrustee. The referee in Wolfe recommended against reinstatement of the suspendedattorney due to his failure to engage in community service or permissible pro bonoactivity during the suspension period. In overruling the referee's recommendation, theCourt reasoned that neither case law nor the Bar rules require such positive action asa prerequisite for reinstatement. Id. at 1178.

It appears that Lynne somehow believes that the Wolfe decision undermines theBoard=s finding on restitution. In Wolfe, however, bar counsel at the reinstatementhearing Adid not dispute that restitution was paid.@ Id. Furthermore, Athe refereemade no express finding that full restitution was not paid to the trust beneficiaries.@Id. The record also established that Wolfe had paid the trust $850,000 and hadreceived a release from the trust beneficiaries. Based upon such record, the Courtheld: AThus, we find that Wolfe has made the required restitution.@ Id.

In stark contrast to those facts, Lynne has been well aware of the Board=sconcern as to restitution to First Union National Bank since his last formal hearing inSeptember 1999. (BE 2 at 251; BE 3 at 18) Yet, Lynne has still made no restitutionto the financial institution that incurred a lost of about $60,000 due to its cashing ofchecks with forged endorsements presented by Lynne. (T 89-91)

The record before the Court is woefully inadequate as to Lynne=s assertion thathe had undertaken Aall reasonable attempts to offer money to the BankY.@ (Brief 38)In fact, the only documentary evidence addressing this issue is an affidavit from an

2 The Board objects to the factual assertion made by Lynne that the BoardAdisregarded@ the affidavit of Mr. Slavin. (Brief 40 at fn 7) The Board specificallyreferences this affidavit in its findings. (FF 12 at lines 1-4). The Board, however,found such evidence to be unclear at best. (FF 12 at lines 11-12)

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attorney. (AE 20) 2 In the affidavit, the attorney simply states that he had Amadediligent attempts to solicit a settlement demand from First Union Bank.@ Id.

The affidavit, however, is unsubstantiated and nothing was offered into therecord (such as copies of correspondence) to corroborate its contents. The affidavitalso contains no details such as references to bank officials with whomcommunications had taken place.

In fact, it was only after questioning of Lynne by a Board member that it waslearned that Lynne had actually instructed his attorney to begin negotiations with anoffer of $5,000. (T 90) Lynne could not confirm that his attorney had ever even madea firm offer. (T 90)

Lynne cannot plead poverty for his failure to take reasonable steps in addressingthis issue. In fact, Lynne testified that he earned about $104,000 last year as aparalegal. (T 95)

Based upon the record before it, the Board properly determined that Lynne=spresentation of evidence as to this matter was neither clear nor convincing. The Courtis urged to reach the same conclusion.

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IV. THE BOARD PROPERLY FOUND THAT LYNNE FAILED TOPRESENT CLEAR AND CONVINCING EVIDENCE OF HIS

COMPLIANCE WITH THE REQUIREMENT OF POSITIVE ACTION. (LYNNE=S POINT IV)

Rule 3-13(g) lists the following element of rehabilitation: A[P]ositive action showing rehabilitation by such things as a

person's occupation, religion, or community or civic service. Merelyshowing that an individual is now living as and doing those things he orshe should have done throughout life, although necessary to proverehabilitation, does not prove that the individual has undertaken a usefuland constructive place in society. The requirement of positive action isappropriate for applicants for admission to the Bar because service toone's community is an implied obligation of members of the Bar.

As to this element, the Board found: Following his 1999 formal hearing, the applicant continued to

volunteer for the Emergency Military Services of the American RedCross. The applicant worked a 14-hour shift once a week from hishome. (T 42) During his shift, the applicant would receive and makephone calls on behalf of military personnel in need of assistance. (T 42)The applicant averaged about four hours a shift when he was directlyinvolved in assisting someone. (T 60) During the other time, theapplicant was free to do personal matters such as reading or evensleeping. (T 60)

The applicant also testified that the American Red Crosstransferred the applicant's service to an outside source about six weeksago. (T 58) The applicant indicated that he was now "... on call fortraining for manning a hurricane shelter." (T 58) The applicant added:"... I have not done something else in the last six weeks to take up thistime that I was previously devoting with the Red Cross ..." (T 58)

The applicant also testified that he has participated in bicycle ridesas a fundraiser for AIDS. (T 43) The applicant is also the president ofhis homeowners association, a 215-unit townhouse community. (T 44)

Based upon the record before it, the Board finds that the applicanthas not presented sufficient evidence of this element of rehabilitation.For example, although a worthy endeavor, the Board finds that theapplicant's actual involvement with the American Red Cross wassignificantly less than the 5,200 hours reported by an official with thatagency. (AE 13)

The Board also notes that after six weeks, the applicant had stillnot become involved in other community service to replace his work onbehalf of the American Red Cross. In that the applicant resides in theSouth Florida area, the Board is confident that there are numerousopportunities available to him for community service.

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As to the applicant's service as president of his homeownersassociation, the Board acknowledges the applicant's dedication to thistime-consuming undertaking. The Board, however, notes that suchservice provides a personal benefit for the applicant. As the applicant'switness, Mr. Layman, testified: "... If Robert wasn't there especially,we'd have a really hard time keeping the place looking the way it does andkeeping the home values as well as they are today." (T 123)

(FF 12-14)It is clear and even understandable that Lynne is disappointed by the Board=s

decision. Such disagreement, however, does not justify a distortion of the record byclaiming that the Board Aoverlooked, disregarded and ignored@ the evidencepresented by Lynne=s as to this element of rehabilitation. (Brief 45) On the contraryand as established by the findings quoted above, the Board reviewed, considered andevaluated the evidence.

Furthermore, in its conclusions, the Board returned again to this important issue.The Board stated:

In reaching the conclusion that the applicant should not bereadmitted at this time, the Board is mindful of the applicant's pastinvolvement in his community. Although the Board found such evidenceto be insufficient at this time, the applicant is encouraged to remaininvolved in his community. As to the nature of any future communityservice, the applicant should be guided by the Court's pronouncement inFlorida Board of Bar Examiners re M.L.B., 766 So.2d 994, 998-999(Fla. 2000).

(FF 15) The above-quoted language confirms the Board=s awareness of the evidence

before it especially as to the Lynne=s participation in his community. Determiningwhether a bar applicant who has engaged in serious misconduct has establishedsufficient rehabilitation is not always an easy task but it is an essential one. CompareFlorida Board of Bar Examiners re J.J.T., 761 So2d 1094 (Fla. 2000) with FloridaBoard of Bar Examiners re P.T.R., 662 So.2d 334 (Fla. 1995).

Lynne also returns to a familiar theme by suggesting that he is being Apunishedfor supporting his familyY.@ (Brief 44) In the case of Petition of Wolf, 257 So.2d 547(Fla. 1972), the Court addressed a request for readmission from a disbarred attorney.There, the Court responded:

A review of this record naturally results in sincere sympathy forpetitioner and his family, as disbarment is the worst of all calamities tomost lawyers. The essence of petitioner's contention seems to be that hehas now suffered sufficient punishment and, having paid his debt, shouldnow be reinstated as a member of The Florida Bar. If this were acriminal proceeding his evidence would be entitled to significant weightin passing upon an application for parole.

On the other hand, if the concept of discipline and the protection

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of the public, as well as the image of The Florida Bar, are to have anymeaning at all, cases such as this must be viewed in the cold light ofobjectivity and without regard to personal sympathy. Viewed in this light,the instant record does not justify readmission of the petitioner as amember in good standing of The Florida Bar.

Id. at 550. In the cold light of objectivity and without regard to personal sympathy,the Board considered Lynne=s formal hearing presentation and concluded that it wasinsufficient. The Court is requested to reach the same result.

Lastly, Lynne inadvertently weakens his argument by his reliance on theunpublished decision in the case of Robert Jack Andringa. (Brief 46) Andringa, likeLynne, was a former attorney who resigned while disciplinary proceedings werepending against him. In Andringa=s case, the Board found him to be rehabilitated andappropriately recommended to the Court his readmission to The Florida Bar.

The recommendation in Andringa establishes that the Board is not predisposedto rule against attorneys who were the subject of disbarment or disciplinaryresignation. On the contrary, the Andringa case confirms that the Board reaches itsdecisions on a case-by-case basis based upon consideration of the controllingauthorities and the unique factual record produced at each applicant=s formal hearing.

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V. THE BOARD= PROPERLY RULED NOT TO EXTEND LYNNE'S BAREXAMINATION SCORES PAST THE FIVE YEAR DEADLINE IN LIGHT

OF THE BOARD=S UNFAVORABLE RECOMMENDATIONFOLLOWING HIS FORMAL HEARING (LYNNE=S POINT V)

Lynne last took the bar examination in 1998. His passing scores expired lastMarch. In response to Lynne=s petition to extend the validity of his bar exam scores,the Board ruled that it would grant a limited extension, if needed, should the formalhearing panel favorably recommend his readmission. That ruling became null and voidwhen the formal hearing panel ruled to recommend against Lynne=s readmission. TheBoard=s decision is well supported by the rules and case law in this area.

Rule 2-29 of the Rules provides in part:2-29 Stale File Fee. Applicants whose Bar Application has been

on file for more than 3 years shall be required to file a new BarApplication answering each item for the period of time from the filingdate of the last application filed to the date of the filing of the newapplication including submitting current references, a fingerprint card, andthe applicable fee.

Such rule was first enacted by the Court in 1985. Florida Board of Bar Examinersre Amendment of Rules, 462 So.2d 463, 465-466 (Fla. 1985) (The provision wasformer Article IV, section 2.).

In 1993, the Court enacted a companion provision to the stale file rule toaddress the issue of staleness of bar examination scores. Florida Board of BarExaminers re Amendment to Rules, 626 So.2d 156, 158 (Fla. 1993)(The provisionwas former Article IV, section 2.b.). Such provision, currently set forth under Rule4-18.2 of the Rules, provides:

4-18.2 Five Years. An applicant's successful completion of theFlorida Bar Examination shall remain valid for a period of 5 years fromthe date of the administration of the last part of the Florida BarExamination that was successfully completed. If the 5-year periodexpires without admission, an applicant shall, except for good causeshown, be required to retake the Florida Bar Examination and again passall parts of the examination.

In addressing Lynne's petition before the Court, the underlying rationale for theenactment of the five-year limitation for bar exam scores should be controlling. Suchrationale was set forth in the Court's 1993 opinion:

The proposed rule amendment also provides that an applicantmust retake the Florida Bar Examination if notice of successfulcompletion of the examination is older than five years. Currently, theRules require an applicant to file a bar application "no later than 180 daysfrom the date of notice that success has been attained on [the Florida BarExamination]." Article VI, Section 9 of the Rules. The intent of suchrequirement is to prevent an inordinate passage of time between a

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demonstration of minimum technical competence by completion of thebar examination and admission to The Florida Bar.

Notwithstanding the intent of the rules, certain applicants whopreviously passed all parts of the bar examination have gone lengthyperiods of time without being admitted. Such applicants includeindividuals whose files were inactivated due to staleness and applicantswho 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 ordelinquent member can only be reinstated "upon application to andapproval by the Florida Board of Bar Examiner." Rule 1-3.7(e) of theRules Regulating The Florida Bar. The Board submits that the inclusionof the five-year limitation will ensure a reasonable time span between thedemonstration of minimum technical competence and admission to TheFlorida Bar.

Rules, 626 So.2d at 158 (emphasis supplied). Based upon the above-quoted rationale,it is clear that the five-year limitation period was specifically enacted to addressindividuals like Lynne

In his pending petition, Lynne supports his request for a waiver of Florida'sfive-year limitation on bar exam scores by noting his current employment as aparalegal. In Florida Board of Bar Examiners re Amendment to Rules re Kwasnik,508 So.2d 338, 340 (Fla. 1987), the Court required a practicing out-of-state attorneyto retake the bar exam because he last passed it more than eight years earlier.

In addition to Kwasnik, there is the case of W.H.V.D., supra. In that case, theapplicant was seeking admission again after being previously denied by the Court.Following his second formal hearing appearance, the Board again recommendedagainst the applicant's admission based upon his failure to demonstrate sufficientrehabilitation. The Court upheld the Board's recommendation finding that theapplicant had failed to meet his burden as to the establishment of rehabilitation. Id. at388.

The Court in W.H.V.D. also upheld the Board's recommendation that theapplicant be required to retake and pass the bar examination. In that case, theapplicant was a former out-of-state attorney who was working for the state. Inreaching its ruling, the Court reasoned: "This would ensure W.H.V.D.'s technicalcompetence because he last passed the bar exam in 1988 and has recently beenemployed outside the practice of law." Id.

Lynne's reliance upon his work experience as paralegal for waiving the five-yearprovision is similar to the argument put forth by the petitioner in the case of In reRussell, 236 So.2d 767 (Fla. 1970). In that case, the petitioner (a member of theMassachusetts Bar and a resident of Florida) attacked Florida's lack of reciprocity asunconstitutional. The petitioner was offended by Florida's policy requiring her tosubmit to an examination testing her knowledge of law even though she was a licensedlawyer in Massachusetts.

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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 aprivilege granted under the Federal Constitution." Id. The Court further held that itsbar examination policy did not violate the federal guarantees of due process and equalprotection as mandated by the holding in Schware v. Board of Bar Examiners, 353U.S. 232 (1957).

The Russell Court reaffirmed the intimate connection between the practice oflaw and the administration of justice. The Court thus concluded:

We see it clearly as our duty to admit to this special position ofobligation and trust only those applicants, whether from Florida schoolsor elsewhere, who can satisfactorily demonstrate their credentials througha test of competence given under our supervision and control.

Id. at 769.The reasoning relied upon by the Russell Court is equally applicable to the

reasonable requirement that such demonstration of competence must occur within fiveyears of admission to The Florida Bar. Such requirement is rationally connected toan applicant's fitness to practice law in Florida. Accord Giannini v. Real, et al., 911F.2d 354, 358 (9th Cir. 1990) ("California has the right to make its examination morecomprehensive and difficult than other states...[A]llowing California to set its own barexamination standards is rationally related to the legitimate government need to ensurethe 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 processsought by Cuban-American bar applicants. In reaching its decision, the Courtreasoned:

While we have continued sympathetic to the condition of the CALIapplicants, we have nonetheless remained mindful of our paramountresponsibility in the admissions process--to protect the public byensuring that those who are admitted to practice law in this state havedemonstrated a required level of competence.

Id. at 219. As mandated by the provisions of Rule 4-18.2, such demonstration ofcompetence must occur within a reasonable period of time prior to admission to theBar.

Lynne claims that A[t]he Board abused its discretion in not extending thevalidity of [his] 1998 bar examination scoresY.@ (Brief 48) To demonstrate an abuseof discretion by the Board, Lynne should be required to meet the following burden:

In reviewing a true discretionary act, the appellate court must fullyrecognize the superior vantage point of the trial judge and should applythe "reasonableness" test to determine whether the trial judge abused hisdiscretion. If reasonable men could differ as to the propriety of theaction taken by the trial court, then the action is not unreasonable andthere can be no finding of an abuse of discretion. The discretionaryruling of the trial judge should be disturbed only when his decision fails

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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 noreasonable judge would have done what was done, we must affirm."). Pursuant to thisCourt's test of reasonableness, Lynne has failed to demonstrate an abuse of discretionby the Board in denying his petition.

It has been well over five years since Lynne passed the bar examination inFlorida. 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 conceivablya hardship to some, is in the best interest of the legal profession in our state." Thatrationale is equally applicable to the disposition of the instant case. Furthermore, thegranting of Lynne=s requested relief would be unfair to other similarly situated barapplicants whose previously passed bar exam scores went stale and who resubmittedto the bar examination without protest to the Court.

CONCLUSIONThe Board's findings, conclusions and recommendation are fully supported by

the record before this Court. The Board thoroughly and fairly evaluated the record asto Lynne's presentation of rehabilitation. The Board requests the Court to affirm theBoard's factual findings and recommendation that Lynne not be admitted to TheFlorida Bar at this time.

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DATED this 30th day of September, 2003.FLORIDA BOARD OF BAREXAMINERSMICHAEL J. KEANE, CHAIR

Eleanor Mitchell HunterExecutive Director

By:___________________________Thomas A. PobjeckyGeneral CounselFlorida Board of Bar Examiners1891 Eider CourtTallahassee, FL 32399-1750(850) 487-1292Florida Bar #211941

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing Answer

Brief has been served by U.S. Mail this 30th day of September, 2003 to Kevin P.Tynan, Esquire, 8142 North University Drive, Tamarac, Florida 33321.

____________________________Thomas A. Pobjecky

CERTIFICATE OF TYPE SIZE AND STYLEI HEREBY CERTIFY that the size and style of type used in this response is 14

Times New Roman and that the computer disk filed with this Brief has beenautomatically scanned by Norton Anti-Virus and been found to be free of viruses.

____________________________Thomas A. Pobjecky