Florida Board of Bar Examiners Re: Donald L. Ferguson ( 2018 )

Supreme Court of Florida
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No. SC17-1494
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FLORIDA BOARD OF BAR EXAMINERS RE: DONALD L. FERGUSON.
[May 3, 2018]
PER CURIAM.
This case is before the Court to review the Findings of Fact, Conclusions of
Law, and Recommendation of the Florida Board of Bar Examiners (Board) on the
application of Donald L. Ferguson for readmission to The Florida Bar. The
application is Ferguson’s second attempt at readmission following his disciplinary
resignation from the Bar in 2000. The Board recommends that Ferguson be
readmitted to the Bar. We have jurisdiction. See art. V, § 15, Fla. Const.; see also
Fla. Bar Admiss. R. 3-23.7.1 For the reasons that follow, we disapprove the
1. Under Rule of the Supreme Court Relating to Admissions to the Bar (Bar
Admission Rule) 3-23.7, when the Board issues a favorable recommendation
regarding an applicant seeking readmission to the practice of law after having been
disbarred or having resigned while disciplinary proceedings were pending, the
Board is required to file its report and recommendation with the Court for “final
action.”
Board’s action on Ferguson’s application and deny him admission to the Bar at this
time.
BACKGROUND
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.
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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.”
Shortly after Ferguson entered his guilty pleas, the Court suspended him
from the practice of law, effective November 1, 1995. Following his sentencing in
1999, the Bar filed a complaint against Ferguson based on his criminal misconduct.
Ferguson then filed a petition for disciplinary resignation, which the Bar did not
oppose. The Court granted the petition and Ferguson was allowed to resign on
July 13, 2000, effective, nunc pro tunc, November 2, 1995.
In addition, at about the time he was to be sentenced on the 1995 charges,
Ferguson was indicted on federal charges of conspiracy to commit money
laundering and four counts of money laundering. The indictment charged
Ferguson with engaging in monetary transactions with criminally derived proceeds
and was based on his acceptance of about $565,000 in cash to defend a client on a
charge of first-degree murder. Ferguson ultimately pled guilty in 2001 to one
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count of conspiring to receive and deposit narcotics proceeds, and was sentenced to
five years’ probation to run concurrently with his supervised release term.
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.
In February 2016, Ferguson applied for readmission to the Bar, executing an
updated Bar application. The updated application is Ferguson’s second attempt at
obtaining readmission to the Bar; the Court denied his first application by order
dated February 13, 2014. Because Ferguson’s updated application and the Board’s
investigation revealed conduct adversely reflecting on his character and fitness for
admission to the Bar, the Board held an investigative hearing, after which it filed
three specifications against Ferguson. Ferguson filed an answer, and the Board
conducted a formal hearing.
Specification 1(A)(i)-(ii) alleged that Ferguson failed to comply with the
rules of the U.S. Court of Appeals for the First Circuit governing attorney
discipline by failing to disclose his criminal convictions and by not disclosing his
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disciplinary resignation.2 Specification 2 alleged that Ferguson failed to disclose
his admission to practice before the First Circuit on his first application for
readmission to the Bar. Specification 3 alleged that Ferguson incorrectly stated on
his updated application for readmission that his authority to practice before the
First Circuit was terminated due to his criminal convictions, when he never
actually informed the court of his convictions.
Ferguson denied each specification. The Board, except for part of
Specification 1(A), found each specification proven, but not disqualifying.
Ferguson asserted his rehabilitation and as evidence thereof, produced eight letters
of recommendation, as well as excerpts from letters submitted with his first
application for readmission, attesting to his character, reputation, and professional
ability. Three witnesses also testified on Ferguson’s behalf. One of the witnesses,
a manager with Boca Helping Hands, an organization that serves the
underprivileged, testified that Ferguson had volunteered approximately 800 hours
with the organization since 2011. Logs and other materials documenting
Ferguson’s volunteer work with the organization indicate he volunteered a total of
791 hours between 2011 and 2017. Ferguson testified that he volunteered
approximately 600 hours with Habitat for Humanity between 2001 and 2006, and
2. The Board withdrew Specification 1(B) at the formal hearing.
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that he had made regular financial contributions to his church and other charitable
organizations. In addition, Ferguson put on a presentation for a law school ethics
class in 2011 in which he described his legal career, illegal activities, and efforts
toward rehabilitation.
Based on the evidence and testimony presented at the formal hearing, the
Board found that Ferguson had demonstrated his rehabilitation by clear and
convincing evidence. The Board recommends that Ferguson be readmitted to the
Bar.
ANALYSIS
In a Bar admission proceeding, the burden is upon the applicant to
demonstrate his or her good moral character. See Fla. Bd. of Bar Exam’rs re
H.H.S., 373 So. 2d 890, 891 (Fla. 1979). This Court has held that disbarment alone
is disqualifying for admission to the Bar unless an applicant can show clear and
convincing evidence of rehabilitation. See Fla. Bd. of Bar Exam’rs re Papy, 901
So. 2d 870, 872 (Fla. 2005). In determining whether an applicant has sufficiently
demonstrated rehabilitation, the “nature and seriousness of the offense are to be
weighed against the evidence of rehabilitation.” Fla. Bd. of Bar Exam’rs re
M.L.B., 766 So. 2d 994, 996 (Fla. 2000) (quoting Fla. Bd. of Bar Exam’rs re
D.M.J., 586 So. 2d 1049, 1050 (Fla. 1991)). The “more serious the misconduct,
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the greater the showing of rehabilitation that will be required.” Fla. Bd. of Bar
Exam’rs re J.J.T., 761 So. 2d 1094, 1096 (Fla. 2000).
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. See Fla. Bd. of Bar Exam’rs re
McMahan, 944 So. 2d 335, 338 (Fla. 2006) (applicant required to make
extraordinary showing of evidence of rehabilitation based on prior involvement in
illegal drug operation and convictions for conspiracy to conduct money laundering
and conspiracy to obstruct justice).
Ferguson produced evidence with respect to each applicable element of
rehabilitation in Bar Admission Rule 3-13. Having reviewed the record and the
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Board’s report, we find that Ferguson failed to produce sufficient evidence of
positive action under Bar Admission Rule 3-13(g). That rule requires that an
applicant demonstrate:
[P]ositive action showing rehabilitation by occupation,
religion, or community or civic service. Merely showing
that an individual is now living as and doing those things
he or she should have done throughout life, although
necessary to prove rehabilitation, does not prove that the
individual has undertaken a useful and constructive place
in society. The requirement of positive action is
appropriate for applicants for admission to The Florida
Bar because service to one’s community is an implied
obligation of members of The Florida Bar.
Fla. Bar Admiss R. 3-13(g).
Ferguson produced logs and other materials documenting his volunteer work
with Boca Helping Hands that indicate he volunteered about 791 hours with the
organization between 2011 and 2017. He did not, however, produce comparable
documentation with respect to his volunteer work with Habitat for Humanity.
Ferguson produced documentation identifying the dates he volunteered with
Habitat for Humanity and the tasks performed, but did not produce any
documentation identifying the number of hours he volunteered with the
organization. As with all applicants seeking to establish their rehabilitation from
prior misconduct, Ferguson was required to document his positive action with a
degree of specificity. See Fla. Bd. of Bar Exam’rs re J.J.J., 682 So. 2d 544, 545
(Fla. 1996) (applicant failed to sufficiently document positive action). This
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includes not only documenting the type of positive action performed and when it
occurred, but the number of hours spent engaged in it.
Based on the foregoing, 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. See McMahan, 944 So. 2d at 339; M.L.B., 766 So. 2d at 998
(“Applicants attempting to overcome past misconduct must show some extra effort
in order to demonstrate rehabilitation sufficient to warrant admission to the bar.”)
(emphasis added). “Because of the ‘serious nature of [his] misconduct, more is
required’ ” of Ferguson. McMahan, 944 So. 2d at 339 (quoting Fla. Bd. of Bar
Exam’rs re N.W.R., 674 So. 2d 729, 731 (Fla. 1996)).
CONCLUSION
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Accordingly, for the reasons discussed above, we disapprove the Board’s
Findings of Fact, Conclusions of Law, and Recommendation, and deny Donald L.
Ferguson admission to The Florida Bar at this time. He may reapply for admission
after two years from August 9, 2017, the date of the Board’s recommendation. See
Fla. Bar Admiss. R. 3-23.6(d).
It is so ordered.
LABARGA, C.J., and LEWIS, CANADY, and POLSTON, JJ., concur.
LAWSON, J., dissents with an opinion, in which PARIENTE and QUINCE, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LAWSON, J., dissenting.
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 set forth in Bar Admission Rules 3-12 (Determination of Present
Character) and 3-13 (Elements of Rehabilitation). Those findings, detailed in the
Board’s 43-page report and recommendation, are amply supported by the record
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and therefore should be approved. See Fla. Bd. of Bar Exam’rs re R.L.W., 793 So.
2d 918, 923, 925 (Fla. 2001) (“[T]he Board’s findings of fact should be approved if
they are supported by competent substantial evidence in the record.”). Accepting
the Board’s findings, I would also approve the recommendation that flows from
those findings.
Given the serious nature of Mr. Ferguson’s past conduct, I could understand
a decision to never consider readmitting Ferguson to the Bar, see, e.g., Fla. Bd. of
Bar Exam’rs re Castro, 87 So. 3d 699, 702 (Fla. 2012) (stating that no amount of
rehabilitation would ever be sufficient to readmit applicant who participated in
scheme involving bribery and kickbacks to sitting judge), but I believe that the
time to have done that would have been when Ferguson was last rejected for
readmission, at the latest. 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
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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.
PARIENTE and QUINCE, JJ., concur.
Original Proceedings – Florida Board of Bar Examiners
Elizabeth J. Walters, Chair, Michele A. Gavagni, Executive Director, and James T.
Almon, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida,
for Petitioner
John A. Weiss of Rumberger, Kirk & Caldwell, Tallahassee, Florida,
for Respondent
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