In re Ferguson
| Decision Date | 03 May 2018 |
| Docket Number | No. SC17-1494,SC17-1494 |
| Parties | FLORIDA BOARD OF BAR EXAMINERS RE: DONALD L. FERGUSON. |
| Court | Florida Supreme Court |
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 theBoard's action on Ferguson's application and deny him admission to the Bar at this time.
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."
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 onecount 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 hisdisciplinary 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, andthat 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.
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,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) ().
Ferguson produced evidence with respect to each applicable element of rehabilitation in Bar Admission Rule 3-13. Having reviewed the record and theBoard'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...
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