Opinion
Case No. SC06-1871.
July 23, 2007.
Harry James Averell was admitted to the The Florida Bar (the Bar) in 1990 and was disbarred in 1996. He sought readmission in 2004. The Florida Board of Bar Examiners (Board) served specifications alleging the following: (1) Averell had collected fees from clients and then failed to provide the agreed upon services and this had resulted in his disbarment; (2) Averell had failed to pay timely federal income taxes for nine years from 1994 to 2003 and owed approximately $72,000 in overdue taxes; (3) Averell had failed to make timely child support payments and owed approximately $55,700 in overdue payments; and (4) Averell had failed to make timely student loan payments and owed approximately $27,000 in overdue payments, and he had failed to satisfy judgments for approximately $17,600 and $3,700.
After a formal hearing, the Board concluded that the specifications had been proved, that some of Averell's misconduct was due to mood altering substances, that Averell has maintained his sobriety since 2001, that Averell has established compliance with the provisions of rule 3, and that Averell has proved rehabilitation by clear and convincing evidence. The Board recommended that Averell be readmitted to the Bar with conditions, none of which related to his debts.
In Bar admission proceedings in general, the Court may review the factual underpinnings of the Board's recommendation based on an independent review of the record. See Florida Bd. of Bar Examiners re M.L.B., 766 So. 2d 994, 996 (Fla. 2000). In conducting its review, the Court will approve the Board's findings of fact if they are supported by competent substantial evidence in the record. See Florida Bd. of Bar Examiners re R.L.W., 793 So. 2d 918, 923 (Fla. 2001). In Bar readmission proceedings specifically, disbarment alone is a disqualifying factor unless the applicant can show by clear and convincing evidence that he or she is sufficiently rehabilitated. See Florida Bd. of Bar Examiners re Papy, 901 So. 2d 870, 872 (Fla. 2005). Disbarred attorneys may be readmitted only if they can meet this heavy burden. See Florida Bd. of Bar Examiners re J.J.T., 761 So. 2d 1094, 1096 (Fla. 2000).
First, in the present case, the Court concludes that Averell has made an insufficient showing of rehabilitation with respect to restitution.See Fla. Bar Admiss. R. 3-13(f). The record does not contain competent substantial evidence showing that Averell has made restitution to those clients from whom Averell collected fees but failed to provide services. On this record, Averell "has not engaged in any effort whatsoever to make whole the others who suffered financial consequences as a result of his misconduct." See Florida Board of Bar Examiners v. Papy, 901 So. 2d 870, 872 (Fla. 2005). Second, although discussed at the formal hearing, the record does not contain competent substantial evidence showing that Averell has engaged in a sustained, sufficient effort to satisfy other debts, including matters pertaining to the Internal Revenue Service. In brief, Averell "has not made adequate progress in rectifying his financial irresponsibility for this Court to even consider his admission to the Bar at this time." Id. The present case is similar to Florida Board of Bar Examiners re Papy, 901 So. 2d 870 (Fla. 2005) (denying readmission where attorney misappropriated client funds and then failed to make restitution to the client or to his own insurer, which had partially reimbursed the client, and where attorney also had failed to pay timely income taxes and still owed back taxes), in this respect.
Although Averell may be commended for "his ongoing program of recovery, his record of professional ability, and his service to his community," as well as his assumption of a responsible role in raising his children, those things alone, though significant and praiseworthy, are merely evidence of conduct expected from each of us and are insufficient to justify readmission in light of his failure to make an adequate initial showing with respect to restitution and financial responsibility. The language of rule 3-13 is plain and unambiguous, and the requirements therein are mandatory.
The Court disapproves the Board's recommendation that Harry James Averell be readmitted to The Florida Bar. He may reapply for admission in two years from the date this order is issued.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.