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IN THE SUPREME COURT OF FLORIDA
FLORIDA BOARD OF BAR EXAMINERS
IN RE:
E.L.P. CASE NO. SC08-2482
____________________________
APPLICANT‟S INITIAL BRIEF
SCOTT K. TOZIAN, ESQUIRE
Florida Bar No. 253510
GWENDOLYN H. HINKLE, ESQUIRE
Florida Bar No. 083062
SMITH, TOZIAN & HINKLE, P.A.
109 North Brush Street, Suite 200
Tampa, Florida 33602
(813) 273-0063
i
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………...……i
TABLE OF CITATIONS…………………………………………………………..ii
PRELIMINARY STATEMENT…………………………………………………..iv
STATEMENT OF THE CASE AND OF THE FACTS…………………………...1
STANDARD OF REVIEW………………………………………………………10
SUMMARY OF ARGUMENT…………………………………………………..11
ARGUMENT……………………………………………………………………..12
Issue One: An applicant must prove “positive action showing
rehabilitation” through “occupation, religion, or community or civic
service.” Mr. Pedrero donated almost 3,000 hours of community service
since 1992 and made significant occupational contributions. The Board
found that Mr. Pedrero‟s 114 hours with Guardian Ad Litem after he filed
his Report of Rehabilitation in January 2007 were not sufficient to meet this
element. Did the Board err in failing to consider the rest of Mr. Pedrero‟s
documented positive action? ………………………………………………12
Issue Two: Rule 3-13(d) requires an applicant to prove “lack of malice or
ill feeling” toward the disciplinary authorities and the Board of Bar
Examiners. The Board‟s findings did not reference the character witnesses‟
testimony regarding Mr. Pedrero‟s respect for the application process and
sincere acceptance of responsibility. Does an independent review of the
record show Mr. Pedrero has proven this element? ………………………20
Issue Three: Rules 3-13(b) and (e) require an applicant to prove
“unimpeachable character” and “personal assurances” of his intent to
conduct him or herself in an “exemplary manner” in the future. Mr.
Pedrero‟s character witnesses included a former Florida Supreme Court
justice, a Colonel for the Hillsborough County Sheriff‟s Office, a retired
federal probation officer, his attorney employer and a prosecuting attorney
ii
working for The Florida Bar. Does an independent review of the record
show that Mr. Pedrero has met these elements of rehabilitation? …………22
CONCLUSION…………………………………………………………………...27
CERTIFICATE OF SERVICE………………………………………………........28
CERTIFICATION OF FONT SIZE……………………………………………....28
iii
TABLE OF CITATIONS
CASES PAGE
Fla. Bd. of Bar Exam‟rs re J.J.T., 761 So. 2d 1094 (Fla. 2000)…………..16, 19, 20
Fla. Bd. of Bar Exam‟rs re L.H.H., 660 So. 2d 1046 (Fla. 1995)………………...17
Fla. Bd. of Bar Exam‟rs re L.K.D., 397 So. 2d 673 (Fla. 1981)………………….10
Fla. Bd. of Bar Exam‟rs re McMahan, 944 So. 2d 335 (Fla. 2006)………14, 16, 17
Fla. Bd. of Bar Exam‟rs re N.W.R., 674 So. 2d 729 (Fla. 1996)…………………19
Fla. Bd. of Bar Exam‟rs re P.T.R., 662 So. 2d 334 (Fla. 1995)…………..19, 20, 25
Fla. Bd. of Bar Exam‟rs re R.D.I., 581 So. 2d 27 (Fla. 1991)…………………….10
Fla. Bd. of Bar Exam‟rs re W.H.V.D., 653 So. 2d 386 (Fla. 1995)…………..23, 24
Fla. Bd. Of Bar Exam‟rs re M.L.B., 766 So. 2d 994 (Fla. 2000)…………………26
CONSTITUTION OF THE STATE OF FLORIDA
Article V, Section 15……………………………………………………………….1
RULES OF THE SUPREME COURT RELATING
TO ADMISSIONS TO THE BAR
3-13……………………………………………………………………………14, 15
3-13(a)………………………………………………………………………….9, 14
3-13(b)…..………………………………………………………….9, 14, 15, 26, 29
3-13(c)………………………………………………………………………….9, 14
3-13(d)……………………………………………………………...9, 14, 15, 23, 25
iv
3-13(e)……………………………………………………………...9, 14, 15, 26, 29
3-13(f)…………………………………………………………………………..9, 14
3-13(g)………………………………………………………….9, 14, 15, 16, 21, 23
v
PRELIMINARY STATEMENT
The following abbreviations and symbols are used in this brief:
App. Exh. = Applicant Exhibit from Formal Hearing of Edward Lamont
Pedrero.
Findings = Findings of Fact and Conclusions of Law of the Florida Board
of Bar Examiners dated November 4, 2008.
T. = Transcript of Formal Hearing held on August 22, 2008.
vi
1
STATEMENT OF THE CASE AND OF THE FACTS
This case is before the Court upon Mr. Pedrero‟s Petition for Review of the
Recommendation of the Florida Board of Bar Examiners (hereinafter, “the Board”)
that Mr. Pedrero be disqualified from admission to The Florida Bar for a period of
two years from the date it entered its Findings of Fact, Conclusions of Law, and
Recommendations. Pursuant to Article V, Section 15 of the Constitution of the
State of Florida, this Court has jurisdiction.
Mr. Pedrero was admitted to The Florida Bar in May 1985. Shortly before
his admission, he suffered personal tragedy when he discovered his mother‟s body
after she took her own life in 1982. (T. 137-138). Mr. Pedrero was only admitted
for two years before being disbarred. His disbarment was effective nunc pro tunc
to 1987, based on misconduct committed in 1984 through 1986 involving credit
card fraud and misrepresentations during his 1987 disciplinary trial. (Findings at
3-9). A subsequent disciplinary complaint, for which discipline was not imposed
due to his disbarment, charged that he made misrepresentations in 1985 and 1986
regarding his relationship with a paralegal from an opposing law firm and to his
employer regarding his Bar membership. (Findings at 10-12).
Mr. Pedrero was eligible for reinstatement in 1992, but in that same year
pled nolo contendere to grand theft, third degree, arising from his employer‟s
allegation that he misappropriated funds from customers. (Findings at 13). He
2
was denied reinstatement to the Bar in 1996 based on his criminal charges and
misrepresentations during the investigative process and on employment
applications. (Findings at 14-21).
Mr. Pedrero‟s September 2000 reapplication was denied following his
Formal Hearing on April 13, 2003, when he was found to have given inconsistent
explanations with regard to the preparation of a study guide for his employer,
Schiller University. (Findings at 22-28). Mr. Pedrero filed his Report of
Rehabilitation on January 19, 2007, documenting his rehabilitative efforts.
During the five years and four months that elapsed between his April 2003
Formal Hearing, and his August 2008 Formal Hearing, there have been no
derogatory events or alleged misconduct. Mr. Pedrero has been employed full time
in the educational sector and part-time as a law clerk. (T. 103-104). Mr. Pedero
worked as a criminal justice instructor and criminal justice department head at
Florida Metropolitan University from 1996 until 2005. (T. 104-106).
Florida Metropolitan University is a “career college” which trains people to
work in the paralegal, health, information science and criminal justice fields. (T.
105). Mr. Pedrero taught paralegal classes, general education classes and criminal
justice classes. As department chair, Mr. Pedrero was responsible for scheduling,
recruiting and hiring faculty, instructional design of the study materials and
overseeing the accreditation criteria for licensing. (T. 106). In 2005, Mr.
3
Pedrero‟s job was eliminated when the paralegal department combined with the
criminal justice department. (T. 107).
When Mr. Pedrero left Florida Metropolitan University in July 2005, he
increased his work at the University of Phoenix teaching online and in the
classroom. Mr. Pedrero also continued doing online instructing with Strayer
University. (T. 110).
In 2006, he was sent to California by Corinthian Colleges to an Instructional
Design Workshop where he met with several publishers to work on a criminal
justice curriculum. (T. 111-112). Based on this initial work, he was also contacted
by ITT ESI to create a taxation course and an environmental studies class. (T.
113). Mr. Pedrero continued to work forty hours a week at ITT ESI as the program
director and teaching at Strayer University for approximately ten additional hours a
week. (T. 113-114).
In addition to his teaching responsibilities, Mr. Pedrero has worked for
Michael A. Steinberg, Esquire, drafting appellate briefs as a law clerk and as a law
clerk for attorney Lizbeth Potts & Associates on an as-needed basis. (T. 66-68,
104).
In 1989, Mr. Pedrero initiated his community service efforts by volunteering
at Tampa General Hospital serving as a Baker Act Volunteer for thirty hours and
then contributing forty hours to the Y.M.C.A. in 1992. (App. Exh. 2).
4
Mr. Pedrero‟s community service commitment began in earnest in 1994. (App.
Exh. 2). Since that time, Mr. Pedrero has donated almost 3,000 community service
hours. (App. Exh. 2, pp. 2-3; App. Exh. 4).
Between 1994 and 1996, Mr. Pedrero started providing service to the
Warrior‟s Gym and Arena, a facility sponsored by the Tampa Police Department
Sertoma Club and Tampa Police Athletic League that helped underprivileged kids
develop self esteem and acquire problem solving skills while participating in a
boxing program. Mr. Pedrero contributed 700 hours of his time working with the
children and soliciting corporate donations. (App. Exh. 2, E2). During this same
time frame, Mr. Pedrero also donated 200 hours working to obtain a historic
preservation grant for the building used by the Warrior‟s Gym and Arena. This
work was performed through the Lily Security Association and the grant was
sought due to the building‟s significance in the African American community.
(App. Exh. 2, E-3).
In 1995, Mr. Pedrero began his commitment to the N.A.A.C.P. and
continued to work with this organization as the Legal Redress Chairperson until
2000. (App. Exh. 2, G3). In this capacity, Mr. Pedrero screened complainants and
presented their civil rights and discrimination issues to lawyers in the community
for appropriate disposition. From 1995 through 2000, Mr. Pedrero donated 500
hours to this endeavor. (App. Exh. 2, p. 3; G3).
5
Mr. Pedrero‟s long term commitment to Guardian Ad Litem for Children
began in 1995 and Mr. Pedrero testified that his contributions were ongoing at his
2008 Formal Hearing. Between 1995 and 2002, Mr. Pedrero documented 444
hours. (App. Exh. 2, G1). Since 2002 to the date he filed his Report of
Rehabilitation in January 2007, Mr. Pedrero contributed an additional 288 hours.
(App. Exh. 2, B5). Mr. Pedrero then continued to donate three to eight hours a
month for the nineteen months leading up to the Formal Hearing, which
conservatively totaled another 114 hours. (App. Exh. 4).
Beginning in 2002, Mr. Pedrero worked with Fortune Education Foundation,
Inc., which was formed to raise scholarship money for minority students. (T. 118).
Mr. Pedrero‟s work with this organization involved soliciting and attempting to
match universities‟ scholarship programs and funds with qualifying applicants. (T.
118). Between 2002 and 2006, Mr. Pedrero contributed 320 hours to the Fortune
Education Foundation. (T. 118). During the same time period, Mr. Pedrero
continued his work with the N.A.A.C.P. donating an additional 160 hours on the
Legal Redress Committee by notifying the membership about pending legislation.
(T. 120-121).
Since his last Formal Hearing in 2003, Mr. Pedrero accepted primary
responsibility for the care of his teenage daughter because his wife had continued
to suffer from chemical dependence on prescribed medications and depression
6
issues, rendering her unable to contribute to the parenting of their child. (T. 27,
117). His wife‟s health had significantly declined in the past few years and Mrs.
Pedrero was unable to work, resulting in the family‟s loss of her income as a
registered nurse. (T. 115-116). In 2006, Mr. Pedrero‟s daughter began attending
undergraduate school at Florida State University and the additional monetary
expenses created even more financial strain. (T. 115). Even under these
circumstances, Mr. Pedrero maintained his commitment to the Guardian Ad Litem
program after filing his Report of Rehabilitation in January 2007. (App. Exh. 4, T.
123).
Several character witnesses testified to Mr. Pedrero‟s unimpeachable
character. Henry L. Paul, Esquire, who is an assistant staff counsel for The Florida
Bar, has known Mr. Pedrero for over twenty-five years and testified in his personal
capacity. (T. 25, 28). Mr. Paul acknowledged that the conduct for which he was
disbarred was “very serious,” but noted that it occurred over twenty years ago. (T.
26). Mr. Paul further explained that Mr. Pedrero is “remorseful” and does not bear
any ill will toward the Board for the reapplication process. (T. 28). Mr. Paul was
impressed by Mr. Pedrero‟s dedication to his family, including consistently
supporting his wife through her chemical dependency and mental health issues,
becoming primarily responsible for raising a teenage child who recently began
college, as well as financially supporting the family. (T. 27).
7
Frederick B. Karl, Esquire, a former Florida Supreme Court Justice, was
admitted to The Florida Bar in 1950. (T. 38). Although Mr. Karl recently retired,
his impressive career included membership in the State House of Representatives
and State Senate and serving as the County Attorney and County Administrator for
Hillsborough County, City Attorney for Tampa and President of Tampa General
Hospital. (T. 39-40). Justice Karl was introduced to Mr. Pedrero by Dr. Sam
Horton, who was the head of the local N.A.A.C.P. in 1996. (T. 40, 44). Justice
Karl described Mr. Pedrero‟s reactions to the result of his last hearing before the
Board as “disappointed with the results” but “willing to take the additional time
and punishment.” (T. 45). Based on his extensive experience, Justice Karl
believed Mr. Pedrero was sincere and genuinely remorseful. (T. 42).
Colonel Gary Terry also testified on Mr. Pedrero‟s behalf. Colonel Terry
has been a law enforcement officer for over thirty-seven years with the
Hillsborough County Sheriff‟s Office and is assigned to the Department of
Investigative Services with four divisions reporting to him, including the criminal
investigation division, the special investigation division, Homeland Security
Division and the Department of Children and Families. (T. 49-51). He met Mr.
Pedrero about eight years ago while serving as a guest lecturer for Mr. Pedrero‟s
class at Florida Metropolitan University. (T. 53). Colonel Terry noticed Mr.
Pedrero‟s caring attitude and interest in his students throughout their continued
8
regular contact. (T. 54). Colonel Terry explained that he had been involved in
“hundreds, if not thousands” of criminal investigations, as well as being in
command of 500 employees at the Sheriff‟s Office. (T. 55-56). After evaluating
Mr. Pedrero‟s sincerity, Colonel Terry opined that he was remorseful. (T. 56).
Mr. Pedrero‟s former employer testified concerning his quality work product
and his exemplary character. Michael A. Steinberg, Esquire, was admitted to The
Florida Bar in 1982 and primarily practices in the area of social security disability
benefits. (T. 64-65). Mr. Steinberg first hired Mr. Pedrero to draft briefs in the
mid-1990s and continued to employ him over the next ten years during which time
Mr. Pedrero drafted about a hundred briefs. Mr. Steinberg testified that Mr.
Pedrero reliably adhered to deadlines and consistently completed quality work
product. (T. 69-70). Mr. Steinberg also described an incident he witnessed in
which Mr. Pedrero showed remarkable compassion with an individual who was
suffering severe mental health problems and threatening to confront a security
guard in a hearing office building. (T. 73). Due to his experience with his wife,
who has a history of mental health issues, Mr. Pedrero knew how to approach this
person he had not previously met and convince him to drive with Mr. Pedrero to a
local crisis center to speak to a professional. (T. 73).
Mr. Ray Higginbotham, who also worked with Mr. Pedrero at Florida
Metropolitan University as a fellow criminal justice instructor from 2002 to late
9
2006, was formerly a federal probation officer for twenty-nine years. (T. 87).
While Mr. Pedrero acted as the chair for the criminal justice department, he was
Mr. Higginbotham‟s supervisor. (T. 91). Mr. Higginbotham found Mr. Pedrero to
be a caring and detail-oriented professional who was concerned about the students.
(T. 91). Mr. Higginbotham testified that Mr. Pedrero was contrite, sincere and
genuinely remorseful for his misconduct. (T. 95).
The Board recommends that this Court find that Mr. Pedrero met his burden
of establishing Rules 3-13(a) (strict compliance with any applicable order), (c)
(good reputation for professional ability), and (f) (restitution of funds or property).
The Board recommends that this Court deny Mr. Pedrero admission because he
had not established Rules 3-13(b) (unimpeachable character), (d) (lack of malice or
ill will), (e) (personal assurances of intent to lead life in an exemplary manner) and
(g) (positive action in the community). Mr. Pedrero petitions the Court to
independently review the record and evaluate the elements of rehabilitation based
on his extensive community service efforts and character evidence.
10
STANDARD OF REVIEW
When the Court reviews the Florida Board of Bar Examiner‟s
recommendation regarding an applicant‟s fitness to be admitted to The Florida Bar,
“this Court is not precluded from „reviewing the factual underpinnings of its
recommendation, based on an independent review of the record developed at the
hearings.” Fla. Bd. of Bar Exam‟rs re R.D.I., 581 So. 2d 27, 29 (Fla. 1991)
(quoting Fla. Bd. of Bar Exam‟rs re L.K.D., 397 So. 2d 673, 675 (Fla. 1981)).
11
SUMMARY OF ARGUMENT
Mr. Pedrero petitions this Court to independently review the record evidence
and find that he has proven his rehabilitation by clear and convincing evidence. In
recommending that Mr. Pedrero had not shown “positive action” through such
things as his “occupation, religion or community service,” the Board failed to
evaluate the totality of Mr. Pedrero‟s community service efforts, which
approximated 3,000 hours. The Board erred in limiting its consideration to only
those efforts that Mr. Pedrero performed after he filed his Report of Rehabilitation
in January 2007. The testimony and exhibits showed that Mr. Pedrero had
consistently pursued community services through organizations well-respected for
assisting and protecting children, minorities and the underprivileged. Mr. Pedrero
has never had a self interest in or sought personal gain from any of these charitable
organizations.
After his readmission was rejected in 2003, Mr. Pedrero continued to
perform community service with the Fortune Education Foundation, helping
minority students obtain scholarship money; with the N.A.A.C.P., working on the
Legal Redress Committee; and with the Guardian Ad Litem program, volunteering
as an advocate in court for the best interest of abused, abandoned and neglected
children. So committed was Mr. Pedrero to community service that even after
2006, when his wife‟s mental health issues prevented her from working and Mr.
12
Pedrero assumed sole responsibility for providing financial support for the family
and for parenting their child, Mr. Pedrero continued his work as a Guardian Ad
Litem.
The Board also incorrectly overlooked Mr. Pedrero‟s significant
occupational achievements. He has excelled in the educational field and has
earned a reputation as a caring and compassionate educator. In addition, Mr.
Pedrero has kept his legal research and writing skills honed through his regular
part-time employment as a law clerk working under the direct supervision of
practicing attorneys. One such attorney employer testified that he was well
satisfied with the quality of Mr. Pedrero‟s work, which included drafting
approximately 100 social security briefs.
Additionally, the Board erred in failing to give the appropriate weight to
character witnesses who included a former Florida Supreme Court Justice, a
Colonel for the Hillsborough County Sheriff‟s Office, a retired federal probation
officer, his attorney employer and a prosecuting attorney for The Florida Bar.
These witnesses testified to Mr. Pedrero‟s genuine remorse and acceptance of
responsibility for his past misconduct, as well as his lack of malice or ill will
toward The Florida Bar and the Board of Bar Examiners. Importantly, the Board‟s
recommendation does not cite any instance of derogatory conduct or any witness
testimony that rebuts the witnesses‟ descriptions of Mr. Pedrero‟s unimpeachable
13
character or his positive assurances that he will live his life in an exemplary
manner.
The totality of the evidence, including documentation confirming Mr.
Pedrero‟s community service hours and the testimony of his witnesses, establishes
each of the rehabilitative elements. The record supports a finding that Mr. Pedrero
has proven rehabilitation by clear and convincing evidence. Accordingly Mr.
Pedrero respectfully requests that this Court find that he has the present requisite
character and fitness to be admitted to practice law.
14
ARGUMENT
Mr. Pedrero, as a disbarred lawyer seeking readmission, has the burden of
establishing rehabilitation by clear and convincing evidence. Fla. Bd. of Bar
Exam‟rs re McMahan, 944 So. 2d 335, 337 (Fla. 2006). Rule Relating to
Admissions to the Bar 3-13 describes the elements of Rehabilitation which are set
forth as follows:
Elements of Rehabilitation. Any applicant or registrant who
affirmatively asserts rehabilitation from prior conduct that adversely
reflects on the person's character and fitness for admission to the bar
must produce clear and convincing evidence of rehabilitation
including, but not limited to, the following elements:
(a) strict compliance with the specific conditions of any disciplinary,
judicial, administrative, or other order, where applicable;
(b) unimpeachable character and moral standing in the community;
(c) good reputation for professional ability, where applicable;
(d) lack of malice and ill feeling toward those who, by duty, were
compelled to bring about the disciplinary, judicial, administrative, or
other proceeding;
(e) personal assurances, supported by corroborating evidence, of a
desire and intention to conduct one's self in an exemplary fashion in
the future;
(f) restitution of funds or property, where applicable; and,
(g) positive 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
15
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. The Board incorrectly determined that the record did
not support elements (b) (unimpeachable character), (d) (lack of malice and ill
feeling toward the disciplinary authorities), (e) (personal assurances) and (g)
(positive action), because Mr. Pedrero‟s consistent and extensive community
service efforts, as well as his positive character testimony from highly respected
members of our community, showed that he had clearly and convincingly met his
burden.
Issue One: An applicant must prove “positive action showing rehabilitation”
through “occupation, religion, or community or civic service.” Mr. Pedrero
donated almost 3,000 hours of community service since 1992 and made significant
occupational contributions. The Board found that Mr. Pedrero‟s 114 hours with
Guardian Ad Litem after he filed his Report of Rehabilitation in January 2007 were
not sufficient to meet this element. Did the Board err in failing to consider the rest
of Mr. Pedrero‟s documented positive action?
An applicant‟s occupational, religious or community service efforts must be
consistent and substantial to meet the rehabilitative element set forth in Rule
Relating to Admissions to The Florida Bar 3-13(g). The Board incorrectly frames
Mr. Pedrero‟s community service picture as beginning in 2007 at the time he filed
his Report of Rehabilitation. (Findings at 35-36). As a result, the Board failed to
consider the other 768 hours completed between 2002 and 2006 and the 2,114
additional hours donated between 1989 and 2002. The Board only evaluated Mr.
16
Pedrero‟s post-2006 volunteer efforts with Guardian Ad Litem. (Findings at 35).
The Board‟s recommendation that Rule 3-13(g) was not established is based on the
Board‟s inappropriately limited evaluation of Mr. Pedrero‟s post-2006 community
service.
This Court, however, evaluates the applicant‟s rehabilitative community
service efforts over the entire disbarment period. For example, in Florida Board of
Bar Examiners re McMahan, 944 So. 2d 335, 339 (Fla. 2006), the Court
considered Mr. McMahan‟s 700 hours of community service from the date of his
1997 disbarment and extrapolated his efforts to determine that he had “volunteered
less than two hours per week during his period of disbarment.” Moreover, this
Court has been skeptical of community service efforts that are concentrated
immediately before the hearing at which the applicant is attempting to prove
rehabilitation. In Florida Board of Bar Examiners re J.J.T, 761 So. 2d 1094, 1096-
97 (Fla. 2000), this Court considered the community service performed by a
disbarred lawyer and determined the “evidence of rehabilitation [was] diminished”
because the applicant‟s “most active participation did not occur until shortly before
the rehabilitation hearing.” This Court further noted that in the six years before his
rehabilitation hearing, J.J.T. could “show only a handful of instances of volunteer
community service.” Id.
17
In contrast, Mr. Pedrero has been consistently pursuing his community
service commitment since 1994, with earlier efforts in 1989 and 1992, and had
donated almost 3,000 hours before he filed his most recent Report of Rehabilitation
in January 2007. Mr. Pedrero‟s community service work was well beyond the
volunteer time described in McMahan and rose to the level of demonstrating the
“extra effort” necessary for showing positive action in the community. See Fla.
Bd. of Bar Exam‟rs re L.H.H., 660 So. 2d 1046, 1049 (Fla. 1995).
After his 2003 Formal Hearing, Mr. Pedrero worked with the N.A.A.C.P.,
the Fortune Education Foundation and Guardian Ad Litem for Children. (T. 117-
118). The Fortune Education Foundation‟s mission is to raise scholarship money
for minority students. Mr. Pedrero spent approximately sixty hours a year on this
endeavor between 2002 and 2006 for a total of 320 hours. (T. 119). As such,
following the April 2003 Formal Hearing and prior to submitting his Report of
Rehabilitation in January 2007, Mr. Pedrero donated in excess of 200 hours to this
organization.
Mr. Pedrero continued to work with the N.A.A.C.P. following his 2003
Formal Hearing, contributing approximately 118 hours to the Legal Redress
Committee. (T. 120-121). Specifically, Mr. Pedrero reviewed complaints from
members of the community and investigated the related police reports to make a
18
determination as to whether the matter would be referred to a panel attorney for
investigation and potential pursuit of legal claims. (T. 121-122).
Mr. Pedrero has been a regular volunteer for the Guardian Ad Litem
program since 1995 and continued to volunteer after his 2003 Formal Hearing.
Mr. Pedrero worked with the Department of Children and Family Services to make
a determination on behalf of a dependent child, whether or not to recommend
reunification with the child‟s family. (T. 124). Mr. Pedrero explained that he has
worked on many different types of cases ranging from dependant infants to
troubled and mentally ill children reaching the age of majority. (T. 124-25).
Although the average case might only require four to six hours a month, Mr.
Pedrero had accepted several cases, some of which were very complicated. (T.
126-27). A recent case involved a child who had attempted to commit suicide in
the Child Crisis Center at Christmas time. (T. 127).
Mr. Pedrero acknowledged that he had not been able to maintain the pace of
his earlier community service after 2006 due to the increased financial and familial
strains in his home. (T. 123). At that time, Mr. Pedrero became the sole financial
support for his family that had to sustain not only the college expenses for their
daughter, but the medical care for his wife. (T. 123). Nonetheless, even with these
added responsibilities and personal troubles, Mr. Pedrero continued to work with
19
Guardian Ad Litem for three to eight hours a month from 2006 and through the
date of his Formal Hearing. (App. Exh. 4).
This Court has expressly recognized that the Guardian Ad Litem program is
an appropriate community service program and stated in J.J.T., “[t]he rules
contemplate and we wish to encourage positive actions beyond those one would
normally do for self-benefit, including but certainly not limited to working as a
guardian ad litem.” J.J.T. at 1096-97. See also Fla. Bd. Bar Exam‟rs re P.T.R.,
662 So. 2d 334, 337 (Fla. 1995) (Board pointed to the Guardian Ad Litem program
as an ideal example of a charitable organization suitable for community service by
suggesting that the applicant “could best serve the community by assisting the
homeless, sick, or abused, or by working as a guardian ad litem.”).
Although the Board cites to Florida Board of Bar Examiners re N.W.R., 674
So. 2d 729, 731 (Fla. 1996), to support its recommendation that the Guardian Ad
Litem work by itself is insufficient, Mr. Pedrero‟s community service history is
distinguishable from N.W.R. (Findings at 35-36). In N.W.R., the applicant‟s
community service efforts were limited to participating in the Guardian Ad Litem
program. Here, not only did Mr. Pedrero work with the Guardian Ad Litem
program consistently since 1995 for 808 hours, Mr. Pedrero has also volunteered
for other worthwhile organizations.
20
Mr. Pedrero‟s community service time has been devoted to endeavors that
were not calculated to personally benefit him. This Court has not discounted
community service that “benefits both the community and the applicant.” Fla. Bd.
Bar Exam‟rs re P.T.R., 662 So. 2d 334, 337 (Fla. 1995). Even so, greater weight is
given when an applicant‟s motive for volunteering is to give back to the
community and not motivated by self interest. For example, in Florida Board. of
Bar Examiners re J.J.T., this Court discounted the applicant‟s community service
efforts to a corporation that helps locate missing children because the applicant‟s
“ambition would be to develop A Child is Missing to the point where [he] would
be able to have a salary from them, and maybe some day act as a legal counsel in
addition to doing whatever else is required.” J.J.T. at 1096-97.
Mr. Pedrero had no similar personal motive in volunteering his time. Even
though Mr. Pedrero described his experience at Guardian Ad Litem as rewarding,
he did not have any intention that it would develop into a paying position or that he
would even be practicing in the family law arena. Similarly, Mr. Pedrero has
provided extensive time to matters involving civil rights discrimination and
assistance to the African American community through the N.A.A.C.P., the
Fortune Education Foundation, Incorporated, the Lily Security Association and the
Warrior‟s Gym and Arena, but does not expect to develop these experiences into
an area of legal practice. Instead, Mr. Pedrero testified that he would like to
21
continue to work in the area of Social Security Disability because he has
intermittently performed legal research and drafted briefs for Michael A.
Steinberg, Esquire in this subject matter for about ten years. (T. 129-130). As
such, Mr. Pedrero‟s efforts for dependent children, underprivileged and at-risk
teenagers, and the African American community are independent of Mr. Pedrero‟s
self-interest to gain legal employment in the future.
Community service is not the only manner in which an applicant can meet
his or her burden of proving compliance with Rule 3-13(g) because this element
requires “positive action showing rehabilitation by occupation, religion, or
community or civic service.” (emphasis added). Mr. Pedrero has developed an
extraordinary educational career during his disbarment period through his work
with career colleges that train for jobs in criminal justice fields and as paralegals.
Mr. Pedrero has distinguished himself in this field by developing curriculum and
teaching materials such as publishing a law textbook for use in Career Educational
Schools. (See App. Exh. 2, p. 3, attachment C1-5; T. 128-129).
Mr. Pedrero achieved success as a department head of the criminal justice
department at Florida Metropolitan University, which required a high level of
responsibility including scheduling, recruiting and hiring faculty, completing the
instructional design of the study materials and overseeing the accreditation criteria
for licensing. In performing these duties, Mr. Pedrero gained the admiration of the
22
instructors with whom he taught and those whom he supervised. (T. 106). Most
notably, the instructors in the criminal justice field were uniquely qualified to
evaluate Mr. Pedrero‟s character and honesty due to their impressive law
enforcement backgrounds. For instance, Colonel Gary Terry with the
Hillsborough County Sheriff‟s Office has over thirty-seven years of experience
both in criminal investigations and supervising hundreds of police employees.
Colonel Terry testified that he was impressed with the level of care Mr. Pedrero
provided to his teaching and the compassion he demonstrated toward his students
since he Mr. Pedrero eight years ago. In particular, Colonel Terry testified, “he
really had a caring attitude and tried to bring some reality to the classes and tried to
touch these folks that are working in the daytime, trying to go to school at night
and better themselves, and he really had a caring attitude and interest in the
students.” (T. 54).
Mr. Ray Higginbotham was supervised by Mr. Pedrero. (T. 91). Like
Colonel Terry, Mr. Higginbotham had a long and distinguished career in the law
enforcement field. As a former federal probation officer for twenty-nine years, Mr.
Higginbotham was charged with evaluating the credibility of people under his
supervision and reporting directly to federal judges. (T. 87). Mr. Higginbotham
witnessed Mr. Pedrero‟s caring attitude toward his students and his responsible and
professional administration of his supervisory duties. (T. 91, 95).
23
Mr. Pedrero‟s conduct has exceeded the expectation that he is just “living as
and doing those things he or she should have done throughout life.” Fla. Bd. Bar
Exam‟rs re W.H.V.D., 653 So. 2d 386, 387 (Fla. 1995). Even with the increased
personal demands associated with the health of his wife and the sole care and
expense of a teenage child who has recently begun college, Mr. Pedrero has
demonstrated “positive action” in his community by providing consistent
community service without personal benefit and by distinguishing himself in his
occupational field as a caring, compassionate and competent educator. Alone or in
concert, Mr. Pedrero‟s community service and occupational efforts prove that he
has established rehabilitation as required by Rule 3-13(g).
Issue Two: Rule 3-13(d) requires an applicant to prove “lack of malice or ill
feeling” toward the disciplinary authorities and the Board of Bar Examiners. The
Board‟s findings did not reference the character witnesses‟ testimony regarding
Mr. Pedrero‟s respect for the application process and sincere acceptance of
responsibility. Does an independent review of the record show Mr. Pedrero has
proven this element?
The Board only generally referenced Mr. Pedrero‟s testimony, without any
description of the substance, in recommending that Mr. Pedrero had not established
“lack of malice” as required by Rule 3-13(d). (Findings at 34). An independent
review of the record evidence shows that Mr. Pedrero holds no ill will toward the
Board or any disciplinary authority. In pertinent part, Mr. Pedrero did not
minimize his past misconduct. Instead, he unflinchingly described his past actions
24
as “horrific,” acknowledged he had previously “lied, cheated and stole” and
lamented “opportunities [he] threw away.” (T. 131-32, 134). Mr. Pedrero‟s honest
assessment of his own past demonstrates that he did not resent or blame anyone but
himself for his disbarment and the Board‟s subsequent decisions.
Mr. Pedrero‟s acceptance of responsibility was corroborated by his private
discussions with his character witnesses. This Court has noted that it is helpful to
consider whether the applicant discussed his/her feelings about the Board‟s process
with the witnesses when evaluating whether the applicant holds ill feelings against
the Board. In Florida Board of Bar Examiners re W.H.V.D., 653 So. 2d 386 (Fla.
1995), the only evidence of lack of malice was the applicant‟s own testimony and
his witnesses admitted that the applicant had not discussed his feelings with them.
The Court noted, “[s]uch corroboration would be important, particularly where an
applicant‟s statements could appear self-serving.” Id. at 387. In contrast to
W.H.V.D., Mr. Pedrero had discussed his feelings concerning the admission
process with his character witnesses. In particular, Justice Karl and Mr. Paul were
well-suited to evaluate his feelings toward the Board and The Florida Bar. Mr.
Paul, as an assistant staff counsel in lawyer regulation for The Florida Bar would
be sensitive to an applicant‟s or lawyer‟s resentment concerning the process. (T.
24). Mr. Paul explained, however, that Mr. Pedrero “has no ill will towards
25
anybody in relation to his prosecution and through the whole procedure, including
the readmission procedure.” (T. 28).
Justice Karl also shared his discussions with Mr. Pedrero after his last
Formal Hearing when he learned he had been denied. Justice Karl testified that he
was “disappointed” but acknowledged that maybe it was “not [his] time yet.”
(T.45). Rather than being angry, Justice Karl stated that Mr. Pedrero “never lost
faith in the process,” was always “very respectful” and that he took the position he
“deserve[d] a little bit more punishment.” (T. 45-46). Although Mr. Pedrero
expressed disappointment with the Board‟s recommendation and the outcome of
the prior hearing, these feelings do not show malice or ill will. For example, in
Florida Board of Bar Examiners re P.T.R., the Court did not find any animosity
toward anyone merely because the applicant seeking readmission testified that he
“would rather have been suspended then disbarred.” An applicant‟s
understandable and genuine feelings of disappointment regarding past Bar
admission or disciplinary proceedings do not indicate malice toward the Board or
the Bar. Mr. Pedrero‟s testimony, corroborated by his character witnesses, proves
that he has established lack of ill will as required by Rule 3-13(d).
26
Issue Three: Rules 3-13(b) and (e) require an applicant to prove “unimpeachable
character” and “personal assurances” of his intent to conduct him or herself in an
“exemplary manner” in the future. Mr. Pedrero‟s character witnesses included a
former Florida Supreme Court Justice, a Colonel for the Hillsborough County
Sheriff‟s Office, a retired federal probation officer, his attorney employer and a
prosecuting attorney working for The Florida Bar. Does an independent review of
the record show that Mr. Pedrero has met these elements of rehabilitation?
Mr. Pedrero‟s five character witnesses recommended his admission to The
Florida Bar. The Board‟s findings do not provide any explanation regarding its
recommendation that the Court find Mr. Pedrero has not established his
unimpeachable character or his positive assurances to live life in an exemplary
manner. (Findings at 34). In the five and a half years following his 2003 Formal
Hearing, there were no derogatory events casting any negative light on his
character. Rather, five character witnesses, each with a sophisticated background
in law enforcement, the judicial system or the bar disciplinary field, testified that
Mr. Pedrero had proven his unimpeachable character to them. Contra Fla. Bd. of
Bar Exam‟rs re M.L.B., 766 So. 2d 994, 996-997 (Fla. 2000) (discounting letters of
recommendation when the majority were not aware of the nature of the prior
misconduct).
Henry L. Paul, Esquire,, who is an assistant staff counsel for The Florida
Bar, believed the “best measure” of Mr. Pedrero‟s character is his “devotion that he
has shown to his family and wife.” (T. 27). Although Mr. Pedrero‟s wife has
“suffered from very serious addiction problems, health problems,” Mr. Pedrero has
27
never wavered on his support of his wife or raising his child. (T. 27). Mr. Paul
testified that Mr. Pedrero is “faithful” and has done “a wonderful job raising the
child.” (T. 28). In addition, Mr. Paul explained that he has known Mr. Pedrero for
over twenty years and witnessed his personal growth. (T. 35). He testified that he
has been impressed with Mr. Pedrero‟s “commitment and persistence.” (T. 29).
Justice Karl was introduced to Mr. Pedrero by Dr. Sam Norton who was the
head of the local N.A.A.C.P. (T. 40). Mr. Pedrero continued to meet with Justice
Karl over a ten year period to discuss his past mistakes, his attempts to rehabilitate
himself and his intent to live honorably in the future. (T. 41, 44). Justice Karl
noted that Mr. Pedrero had “been very conscientious about public service” and has
“worked hard to make a living.” (T. 41). From their discussions, Justice Karl
determined that Mr. Pedrero was “sincere” and “genuinely remorseful” for his
misconduct. (T. 42). Justice Karl opined that Mr. Pedrero has “learned his
lesson,” has “been punished adequately” and “deserves to be considered favorably
by the Bar.” (T. 43).
Colonel Terry testified that Mr. Pedrero was “really remorseful” when he
confided the details of his past misconduct. (T.55). To achieve his success in law
enforcement over the past thirty-seven years, Colonel Terry has had to develop a
keen judge of character. (T. 56). Colonel Terry testified that he carefully
examined all of the documents regarding Mr. Pedrero‟s past and had the
28
opportunity to closely observe and listen to Mr. Pedrero for the eight years they
worked together as criminal justice instructors. (T. 56-57). Colonel Terry believes
Mr. Pedrero has been truthful with him, has shown remorse and has demonstrated a
caring and compassionate attitude with the career college students who are
working hard to create better lives for themselves. (T. 54-57).
Similarly, Mr. Higginbotham worked in the federal criminal justice system
as a probation officer for twenty-nine years supervising probationers and then
supervising the probation officers. (T. 87-88). Mr. Higginbotham stated that Mr.
Pedrero was willing to describe his past misdeeds to him and the basis for his
disbarment and prior rejections for readmission. (T. 94). As a former probation
officer, Mr. Higginbotham was particularly attuned to people who attempt to
manipulate the system or others for their own gains. (T.95). While acknowledging
that he has witnessed this type of human behavior in his extensive experience, he
has found Mr. Pedrero to be sincere and contrite. (T. 95). Mr. Higginbotham has
also been impressed with Mr. Pedrero‟s care for his family under difficult and
troubling circumstances. (T. 96).
Michael A. Steinberg, Esquire, testified concerning Mr. Pedrero‟s legal
abilities, reliability, the quality work product Mr. Pedrero consistently produced
and his trustworthiness. (T. 68, 70, 72). In addition, Mr. Steinberg provided
special insight into Mr. Pedrero‟s intentions to live his life in an exemplary manner
29
by describing a charitable and compassionate act for which Mr. Pedrero never
expected to receive any credit. Mr. Steinberg had a client with a severe mental
health problem who had been making threats to physically confront the security
guard in the building where a social security disability hearing had taken place. (T.
73). Mr. Pedrero worked to calm him down, convinced the stranger to leave the
building with him and then drove this suffering individual to a local crisis center, at
the risk to his own personal safety. (T. 73). This extraordinary act of courage and
compassion was not performed under the ambit of documented community service
but is the best indicator of Mr. Pedrero‟s intent to live his life in an exemplary
manner. Based on the quality and extent of Mr. Pedrero‟s character testimony, the
record evidence shows that Mr. Pedrero has proven his unimpeachable character
and established the Rule 3-13(b) and (e) elements of rehabilitation.
30
CONCLUSION
An independent review of the record shows Mr. Pedrero has proven his
rehabilitation through positive action in his occupation and community service. In
addition, the testimony of his character witnesses proves his unimpeachable
character and corroborates his personal assurance to live his life in an exemplary
manner. Mr. Pedrero respectfully requests this Court to disapprove the Board‟s
recommendation and determine that Mr. Pedrero has proven his rehabilitation.
Respectfully submitted,
__________________________________
SCOTT K. TOZIAN, ESQUIRE
Florida Bar No. 253510
GWENDOLYN H. HINKLE, ESQUIRE
Florida Bar No. 083062
SMITH, TOZIAN & HINKLE, P.A.
109 North Brush Street, Suite 200
Tampa, Florida 33602
(813) 273-0063
31
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing Applicant‟s Initial
Brief has been furnished by Federal Express overnight delivery to the Honorable
Thomas D. Hall, Clerk, Supreme Court of Florida, 500 South Duval Street,
Tallahassee, Florida 32399-1927, and a true and correct copy has been furnished
by U.S. Mail to Robert G. Blythe, Deputy General Counsel, The Florida Board of
Bar Examiners, 1891 Eider Court, Tallahassee, Florida 32399-1750, this 27th
day
of February, 2009.
__________________________________
GWENDOLYN H. HINKLE, ESQUIRE
CERTIFICATION OF FONT SIZE AND STYLE
The undersigned counsel does hereby certify that this brief is submitted in
the 14 point proportionally spaced Times New Roman font.
__________________________________
GWENDOLYN H. HINKLE, ESQUIRE
