The state Supreme Court heard oral arguments for changing the Rules Regulating the Florida Bar to reduce stigma for lawyers who are conditionally admitted to the bar because of a disability.

On behalf of more than 50 bar members via Zoom on Thursday, Miami attorney Matthew W. Dietz of the Disability Independence Group asked the court to delete Rule 1-3.2(b), which governs membership classifications for conditional members with "a prior history of drug, alcohol or psychological problems."

Dietz argued the rule creates an unnecessary second-class membership. In its place, he proposed new rule 3-4.8, which would allow the bar to monitor consent agreements from the Florida Supreme Court. The rule also proposes the court "may" require members to pay for their monitoring costs, rather than it being mandatory.

Since the public can't see whether a lawyer was admitted with conditions or not, Dietz argued all the current rule really does is privately make attorneys feel inadequate.

"That member will know that that member is not a member in good standing officially, and they have a secret probationary conditionally-admitted status, which only serves to make that person feel worse about themselves," Dietz said.

Dietz represented law student and U.S. Army veteran Julius Hobbs, who sued the Florida Board of Bar Examiners in 2017, alleging its admissions process was unfair to applicants with a history of mental health or substance abuse problems. The case resulted in a confidential settlement and has served as a catalyst to rethinking the rules.

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Related story: Florida Board of Bar Examiners Settles Suit Alleging Discrimination Over Mental Health

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Support on both sides

Dietz noted Thursday that lawyers are particularly vulnerable to mental health and substance abuse issues, and claimed that many young lawyers have found it easier to agree with three or five-year conditional admissions than to fight them.

"Recent studies have said that over 65% of lawyers across the country, at one time in their life, have had psychological problems that hinder their practice of law. So, the fact is, most people have psychological problems," Dietz said. "I truly hope that this is an ongoing conversation which the court could have with regards to the wellbeing of its members."

The main obstacle seemed to be a logistical one. Justices appeared poised to approve the changes, labeling them as positive but asking questions about how they would work in practice.

When Florida Justice Carlos Muniz pondered whether the amendments would enhance public protections as opposed to simply not harming them, new Justice John Couriel interjected to note that, "By encouraging both the conditionally admitted and other members of the bar to seek assistance when they need it, it would seem to me like that is in the public service."

Key West attorney Wayne L. Smith represented The Florida Bar, which supports the amendments, following unanimous approval from the Disciplinary Procedure Committee and Board of Governors.

Smith — a member of the Board of Governors and former chair of the Disciplinary Procedure Committee — said that he was conditionally admitted to the Florida Bar in 1994, three years after voluntarily seeking help from Florida Lawyers Assistance.

He said the bar feels it makes sense to eliminate the category of conditional status since the bar isn't even involved in the process until the court issues a consent judgment about it.

"It creates two categories that have no meaningful difference, distinction or usefulness from the Florida Bar's perspective," Smith said. "Every member, including those members who are conditionally admitted, are members in good standing and conditional status is not a matter of public record."

Megan Collins argued for Disability Rights Florida, which took issue with one aspect of the new rule's language. Instead of saying the court "may" require members to pay monitoring costs under consent agreements, Collins argued the rule should clarify that courts can't require it  when a member is entitled to reasonable accommodations under the Americans with Disabilities Act. In that case, the fees would be classed as an unlawful surcharge.

Muniz noted, however, that, "It seems like whether the rules makes some sort of allusion to federal law or not, federal law is going to govern" and suggested including a line that says the court may assess fees subject to federal laws.

The court has yet to rule.

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