How Many Hours Are Sufficient?
The Florida Supreme Court has rejected a recommendation of its Board of Bar Examiners to readmit an attorney who resigned from the Bar
Donald L. Ferguson was admitted to The Florida Bar in 1973. He worked as an assistant U.S. Attorney and then went into private practice as a criminal defense lawyer. In 1995, he was charged in federal court with conspiracy to obstruct justice and money laundering. Ferguson pled guilty to the two charges and was sentenced in 1999 to twenty-four months in prison and three years’ supervised release. His conspiracy to obstruct justice conviction was based on him having notarized the affidavits of two individuals who had been arrested on drug trafficking charges, knowing that the affidavits included false statements and would or might be used in judicial proceedings for some fraudulent or deceitful purpose. The affidavits stated that a certain person in Colombia had nothing to do with the drug smuggling conspiracy for which the affiants had been arrested. The affidavits were intended to be used either to oppose extradition in Colombia or for some other purpose. One of the arrestees, Ferguson knew, was a high-ranking member of a Columbia-based drug-trafficking organization. Ferguson did not represent the persons whose affidavits he notarized. He notarized the affidavits because he was asked to do so by a lawyer associated with a Washington D.C. law firm that was sending him lucrative criminal defense cases.
Ferguson’s money laundering conviction stemmed from his receipt of $75,000 in cash from an individual associated with the same Washington, D.C. law firm that was sending him lucrative cases and in turn passing it on to the wife of a criminal defendant to use in obtaining the release of her husband on bond. He delivered the money for the same reason he notarized the false affidavits: because he was asked to do so by the people who were sending him lucrative legal business and he did not want to “ruffle [their] feathers.”
He was suspended in 1995 and allowed to resign in 2000. He was convicted of money laundering in 2001.
Ferguson also failed to timely pay his personal federal income taxes for the years 1996-2008 and 2010-2011, and had liens filed against him for the tax years 1996-1999 and 2000-2002. His failure to meet his federal income tax obligations never resulted in criminal charges, only civil penalties. He has since paid all past due taxes and satisfied all liens.
The court
Here, the Board’s findings as to each specification are supported by the record and the sole issue before this Court is whether Ferguson has clearly and convincingly established his rehabilitation. Ferguson’s prior conduct is appalling. He repeatedly chose to disregard his professional and ethical obligations as a member of the Bar so as to not disrupt a lucrative business relationship. His conviction for conspiracy to obstruct justice is particularly egregious in that it involved a flagrant act of dishonesty and his knowing participation in an apparent scheme to present false information to a court. Such acts undermine the very foundation of the legal profession and the judicial process, both of which Ferguson had an obligation as a member of the Bar to respect and uphold. His disregard of this fundamental obligation for pecuniary purposes requires that he make an extraordinary showing of rehabilitation.
…Ferguson engaged in 791 hours of documented positive action between 2011 and 2017, an average of about 131.8 hours per year or 2.5 hours per week. Such a showing, while commendable, is hardly extraordinary, particularly when weighed against his prior misconduct. The same is true even if this Court were to consider Ferguson’s purported 600 hours of volunteer work with Habitat for Humanity in addition to the 791 hours he volunteered with Boca Helping Hands, a combined total of 1,391 hours for the sixteen-year period between 2001 and 2017, an average of about 86.9 hours per year. Simply put, Ferguson’s evidence of positive action fails to clearly and convincingly establish that he put forth the extra effort to overcome his past mistakes.
Justice Lawson dissented joined by two colleagues
Now 71 years old, Donald L. Ferguson has not practiced law in Florida for over 22 years, since his suspension by order of this Court, effective November 1, 1995. Mr. Ferguson was admitted to the Maine Bar in 2010 and remains a member in good standing there. After an evidentiary hearing, the Board of Bar Examiners unanimously found that Ferguson had established his “rehabilitation” and his “unimpeachable character and moral standing in the community” by clear and convincing evidence, along with every other applicable requirement for readmission…
Given that we have permitted Ferguson to reapply, and in consideration of the amount of time that has passed since Ferguson’s misconduct, Ferguson’s age and work history since his suspension (work that appears to have been necessary to enable Ferguson to pay his substantial debt to the federal government, which he has done), and the Board’s character and rehabilitation findings, I do not understand quibbling about whether 791 hours of volunteer service with Boca Helping Hands between 2011 and 2017 (and additional hours with Habitat for Humanity) constitute sufficient “extra effort to overcome his past mistakes.” Majority op. at 9. In addition, notions of fundamental fairness dictate that if the basis for our rejection of Mr. Ferguson’s application for readmission is really too few community service hours, we should at least tell him how many hours we think it would take, in the next two years, to atone for his past misconduct. Without that type of guidance, in the rules or elsewhere, the decision to reject Ferguson’s application for readmission on this basis alone appears unsettlingly arbitrary.
(Mike Frisch)