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Judicial Regulation of Lawyers
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II. Bar Position
IV. Facts and Statistics
Periodically, a few legislators, public officials or special interest groups call for the regulation of the legal profession by an entity other than the Supreme Court of Florida. Most such calls assume the Department of Business and Professional Regulation in Florida is the appropriate entity. D.B.P.R. regulates most other professionals within this state. Despite changes in the confidentiality of lawyer disciplinary records and the total abolition of the socalled "Gag Rule," special interest groups continue to call upon the Florida Legislature to establish an independent body to monitor the regulation of the legal profession and a body, separate from The Florida Bar, to administer lawyer disciplinary procedures.
The transfer of lawyer regulation from the Supreme Court of Florida to a legislatively created state agency gives rise to several integral issues:
Wouldn't the basic role of lawyers in American government -- that of providing checks and balances against excesses in the legislative and executive branches -- be subverted by legislative regulation?
Would allowing a legislatively created state agency to have total regulatory control over the legal profession violate the doctrine of separation of powers since the Florida Constitution provides sole authority in this area to the Supreme Court of Florida?
Since the legal profession is regulated by the Supreme Court of Florida and since members of the court are constitutional officers who must remain in office through merit retention every six years, aren't the Florida voters in a position of approving or disapproving of the court action through the retention process?
If an agency of the state, separate from the judiciary, regulated the legal profession, what would happen to the status of the lawyer as an "officer of the court?"
Doesn't the onethird minimum constituency of grievance committee's and the inclusion of nonlawyers on the Board of Governors (the same level of public involvement as in DBPR's boards) negate the assumption that lawyers are regulated only by other lawyers?
From a practical standpoint, is it probable that a state bureaucratic agency would be a better watchdog over the legal profession than the current system of the Bar and the Supreme Court of Florida?
II. Bar Position
A. Florida Bar Position
In 1987 The Florida Bar created a Disciplinary Review Commission which met over a twoyear period and received public input and input from the profession. After public meetings, the commission issued a report to the Bar and to the Supreme Court of Florida. After review of the commission's report, the Bar recommended that the court adopt a substantial portion of the recommendation of the Disciplinary Review Commission. Nevertheless, the court adopted, almost in total, the recommendations of the Disciplinary Review Commission and made other changes. Specifically, the court removed the socalled "Gag Rule" that prohibited persons from speaking about otherwise confidential disciplinary matters and the court opened the public record portions of many Bar disciplinary cases in order that the public be allowed to see for itself that the system is functioning fairly, efficiently and appropriately.
The Bar has not stopped with this review and revision process. The Bar conducts ongoing reviews of the disciplinary system to determine where it may be made more efficient. Specifically, all nonlawyer members of grievance committees are surveyed periodically to determine their views of the disciplinary system and any recommendations for changes.
July 18, 1996, The Florida Bar adopted a position to oppose amendments to the Florida Constitution which would alter the authority of the Supreme Court of Florida to regulate the admission of persons to the practice of law or the discipline of persons admitted.
B. American Bar Association Position
The American Bar Association, through its Commission on Evaluation of Disciplinary Enforcement (McKay Commission), conducted a nationwide evaluation of lawyer disciplinary systems. This was the first such review since the Clark Commission in 1970. The Commission received substantial input from the National Organization of Bar Counsel and made onsite reviews of many, if not all, lawyer regulatory systems in this country.
In 1979, the ABA House of Delegates adopted Standards for Lawyer Discipline and Disability Proceedings. In 1985, the ABA House of Delegates adopted Model Rules for Lawyer Disciplinary Enforcement to serve as model court rules. In 1989, the House adopted a combination of the Standards and the Model Rules into the Model Rules for Lawyer Disciplinary Enforcement (MRLDE). The MRLDE have been amended subsequently, as recently as 1999, to reflect the recommendations of the McKay Commission's 1992 Report and other new developments in the field of lawyer regulation.
The United States derives its legal tradition from England. One of the British Parliament's early acts regarding the legal profession was to delegate bar admissions to the court (Act of 4 Henry IV, Ch. 18). But Parliament never abandoned the field and continued to set standards for the barristers, attorneys, solicitors and sergeants -- whose various roles in America were merged into a single person, the attorney. Barristers, who came to make most court appearances, fell within the power of the courts, but the courts delegated that regulatory authority to bodies called Inns of Court, organizations somewhat akin to today's bar associations. The medieval statute cited above, and others, granted the courts power to admit attorneys or agents for litigation who could both advise clients or be heard from the side bar of the King's Bench and in common pleas court. The courts issued orders much as they do today concerning admissions and discipline and strictly enforced these rules. But Parliament retained authority over attorneys, passing a statute that regulated the rendering of accounts to clients, provided penalties for fraud and negligence and sought to eliminate unqualified practitioners.
Subsequently, in the United States the courts and the legislatures shared the power to regulate the practice of law.
Recorded history of the bar in Florida dates back to 1889. It consisted of a small voluntary group of the few lawyers Florida had at a time when the population was less than 400,000 persons. Out of this, however, grew the Florida State Bar Association in 1907. Still a voluntary organization, it concentrated its attention on publishing a legal journal, drafting court procedures and presenting occasional educational courses for lawyers. It helped to provide legislative reform having to do with the courts and the legal profession. Membership in this voluntary association never exceeded 2,500 lawyers.
The close of World War I in 1918 brought about sharp growth in the number of lawyers in Florida. But they still had no mandatory organization, and fewer than twothirds of the lawyers belonged to the voluntary state bar association.
In the 1930s it was proposed for the first time that all lawyers, upon admission to practice, be required to be members of the Florida State Bar Association. Many felt that if all lawyers were members of the Bar, communication would improve and the disciplining of unethical lawyers would be simplified.
The Supreme Court of Florida, which had (and still has) jurisdiction over lawyers, rejected this initial proposal. Then in 1947, Bar leaders once more approached the court to ask for compulsory membership of all Florida lawyers in the Bar. They showed the court results of a poll indicating that the majority of Florida lawyers agreed that a change in the Bar structure was needed. These Bar leaders argued that only through an integrated organization of all Florida lawyers could lawyers receive uniform education on changes in Florida law and court procedures. An integrated Bar organization also would pave the way for a uniform discipline system, capable of weeding out unethical lawyers and assuring the public that only lawyers with high standards would be allowed to practice law.
In the summer of 1949, the Supreme Court of Florida told state Bar officials to proceed in forming an integrated bar. As a result, the Florida State Bar Association met for the last time in April 1950. Its members shortened the name of their association to "The Florida Bar," dropping "State" and "Association." The 3,758 lawyers in Florida automatically became members of The Florida Bar that same year.
The legislative history of lawyer regulation in Florida essentially began in 1822 when an act was passed which provided for lawyers' admission to practice either by order of the governor or one of the judges of the superior court. In 1895 Florida Law Chapter 4379 provided for the disbarment of attorneys. It directed circuit judges, having knowledge of an attorney's misconduct, to order the state attorney to file a motion for disbarment. The Supreme Court of Florida was given jurisdiction to hear an appeal from the accused attorney. Chapter 5009, enacted in 1901, granted the diploma privilege to graduates of Stetson University Law School, allowing them to waive the bar examination upon graduation. In 1909, the legislature expanded this privilege to graduates of all Florida law schools. The authority to regulate admissions to the Bar was delegated to the Supreme Court of Florida in 1907 by Chapter 5650. The State Board of Law Examiners was created in 1927 by Chapter 10175 which removed from the Supreme Court of Florida sole authority to regulate lawyer admissions. The board was granted the power to prescribe rules of professional conduct and ethics and to hear complaints of rule violations and of conduct amounting to fraud, deceit, immorality or "sharp" practice. Finding evidence of a violation, the board had to refer the matter to the appropriate state attorney, who then was authorized to proceed with a disciplinary action in the circuit court. In 1951, Chapter 26655 again delegated to the Supreme Court of Florida the authority to regulate bar admission, empowering the court to set additional duties and procedures for the State Board of Law Examiners. The act also abolished the diploma privilege. House Joint Resolution 810 of 1956 was approved by the electorate, amending Florida Constitution Article V, Section 23 to give the Supreme Court of Florida exclusive authority to regulate the practice of law, discipline and admissions.
In the 1979 session, the Florida Legislature set standards for regulation of other professions and named a special subcommittee, the Select Subcommittee on the Legal Profession (Sheldon), to give sunset review of the legal profession and its regulatory structures under the Supreme Court of Florida. The report on the legal profession was compiled by the sevenmember subcommittee after a series of public hearings in which the Supreme Court of Florida, The Florida Bar and the Florida Board of Bar Examiners, testified about their operation and responded to questions posed by the subcommittee and the public.
On June 5, 1980, the select subcommittee issued 22 recommendations for administrative change in regulation and admission of lawyers but proposed no legislation to remove control of the legal profession from the Supreme Court of Florida.
Some of the recommended changes were:
1. The Supreme Court of Florida should analyze the budgeting process of the Bar; the court should consider whether budgetary review more properly lies with the legislature.
Status: The Bar's budget is, and has been, submitted annually for approval to the Supreme Court of Florida.
2. The Florida Bar should undergo the same periodic sunsettype review by the legislature as other regulatory agencies.
Status: Not implemented; such a review would likely require a constitutional amendment.
3. The Board of Governors should consist partly of nonlawyers appointed by the Governor with confirmation by the Senate.
Status: The court added two public members to the Board of Governors in 1986, they are nominated by The Florida Bar and approved by the Supreme Court of Florida. Public members were added to the grievance committees in 1978, Fee Arbitration Committees in 1989 and UPL Committees in 1987. They make up onethird of the membership of these groups.
4. The accused attorney in a grievance proceeding should not be able to petition to retain confidentiality once probable cause has been found.
Status: The accused attorney has no ability to petition to retain confidentiality. Once a case is closed or after the grievance committee takes action, the matter becomes public. In addition, if a specific inquiry about matters otherwise in the public domain has been made during the pendency of an investigation before the grievance committee completes its deliberations, the Bar will be able to respond acknowledging the existence of the investigation and stating the level to which the investigation has proceeded. For cases filed after March 17, 1990, there is no private disciplinary action.
5. The Court should consider if the fiscal controls to which it is subject should also apply to the Bar.
Status: Not implemented; must be decided by the Court.
6. The court should consider whether it can properly mandate dues from lawyers to support programs other than discipline, unlicensed practice of law enforcement and the Clients' Security Fund.
Status: The court has, at least implicitly, ruled that these areas are proper for dues expenditure. Such programs are specifically enumerated within court promulgated Rules Regulating The Florida Bar. Their funding via compulsory bar dues is otherwise consistent with evolving case law on this subject.
7. The court should dispense with an evidentiary hearing at the grievance committee level. The committee should vote on whether to find probable cause based on an investigative report compiled by either Bar staff counsel or a member of the grievance committee.
Status: Effective March 17, 1990, the Supreme Court of Florida removed the requirement that there must be an evidentiary hearing at which the accused attorney and other witnesses must be present. Such a hearing is no longer a prerequisite to finding a probable cause by a grievance committee. Such hearings conducted under the new rules are socalled "paper hearings."
8. The court should adopt specific time limits within which an ethics complaint should be prosecuted.
Status: The Bar proposed and the court adopted a six year time limit in 1995.
9. The court should routinely refer all grievance complaints ready for formal trial to the same circuit judge in each circuit.
Status: The chief judge of each circuit now appoints referees and an effort is made to routinely use the same group of judges.
10. The court should consider some means apart from the publication of a disciplinary order in the Southern Reporter to make its order public.
Status: Discipline orders and accompanying press releases are sent to the state media and published in The Florida Bar News.
11. The Bar should publish in the yellow pages of the telephone book its statewide WATS number.
Status: The WATS number is selectively published in telephone directories throughout the state and referenced in most public communications from the Bar. The WATS numbers for the Bar's lawyer referral service and ethics hotline are posted on the Bar's website www.flabar.org.
12. Whenever the Bar petitions the court for a change in rules, the court should invite the Attorney General to argue for or against the petition.
Status: The court must decide this. All pending rule changes get public notice and invitation to comment via the News.
13. The Bar should not use dues money to fund its lobbying program unless each contributing lawyer voluntarily agrees.
Status: State and federal courts have upheld the Bar's legislative and political activities of the unified bar in the core areas of lawyer regulation and improvements in the delivery of legal services, notwithstanding member protest. Dissent procedures must otherwise be established for the refund of mandatory bar dues and for the advocacy of other political or ideological issues if individual members object to those activities.
14. The Bar should sponsor the establishment of arbitration committees to mediate lawyerclient fee disputes.
Status: The Supreme Court of Florida, at the Bar's urging, has created a statewide fee arbitration program in order to provide a forum for resolution of such disputes, without resort to the disciplinary arena.
15. The Bar's Lawyer Regulation Department should assist in drafting the ethics part of the Bar exam.
Status: Not implemented; the Bar has no special expertise in examination techniques nor authority -- which can be given only by the court. Otherwise, the exam is prepared by attorneys who are quite familiar with the Bar's ethical rules and disciplinary procedures.
16. Grievance committee members should be obligated to disqualify themselves from a probable cause consideration if any conflict of interest concerning their participation arises. The complainants should be advised of their rights to challenge a member for bias.
Status: There is a disqualification mechanism in place that includes reasons for recusal that are more broad than the recommendation.
17. The Bar should not have the authority to review and approve group legal services plans. The Bar should not compete with private group legal service plans.
Status: Legal services plans are regulated by the Florida Department of Insurance under Chapter 642, Florida Statutes, which was passed in 1977. Under Section 642.017(4), certain plans may be exempt from the statute. These are essentially private plan arrangements directly between an employee organization or the like and a law office; are not marketed to the public; and are regulated under Bar rules. The Bar does not operate a legal services plan itself.
Another effort to have the legal profession regulated by the Department of Professional Regulation went before the full Florida House of Representatives for the first time in 1984 and the House voted a close 62-51 against placing the Bar under DPR.
In the 1990 legislative session, House Bill 2625, sponsored by Rep. Peggy Simone, would have created a special oversight committee to study the Bar's disciplinary system. The committee would have studied Bar grievance for three years and issued reports every six months. The bill required the committee to "investigate, monitor and make reports and recommendations regarding all programs and processes for handling complaints about attorney unresponsiveness, incompetence, fee disputes, and unethical conduct . . ." This bill died in the Judiciary Committee.
In the 1993 legislative session, House Bill 777, sponsored by Rep. Armesto-Garcia proposed an amendment to provide that admission of persons to practice of law and discipline of persons admitted shall be pursuant to general law rather than by exclusive jurisdiction of state supreme court. Armesto also sponsored House Bill 779, concerning regulation of attorney practice. It provided that attorneys at law shall be admitted to practice and that practice be regulated by DPR. The bill amends provisions re unlawful practice and penalties. These bills were withdrawn from further consideration February 11, 1993.
During the 1994 Regular Legislative Session, Senator Boczar filed SJR 2698 -- a joint resolution proposing an amendment to Section 15 of Article V of the State Constitution relating to attorneys that in effect would make the admission and discipline of attorneys subject to general law and not exclusive jurisdiction of Supreme Court of Florida. Bill referred to Senate Committees on Professional Regulation, Judiciary and Appropriations where it died for lack of consideration.
In the 1995 legislative session, Representative Melvin filed HJR 1547. The Joint Resolution proposed to amend Section 15 of Article V of the State constitution which would have provided that the admission of persons to the practice of law and the discipline of persons admitted would be pursuant to the general law rather than by exclusive jurisdiction of the state supreme court. The bill passed the House Subcommittee on Business Regulation (4-3), but failed 3-16 in full Business and Professional Regulation Committee.
In the 1996 Legislative Session HB 1453 introduced by Rep. Melvin was a joint resolution proposing an amendment to Section 15 of Article V of the state constitution. The bill would have moved regulation of attorneys from the Supreme Court of Florida and make such regulation pursuant to general law. The bill was referred to Judiciary, Finance & Taxation, Appropriations, Rules and Calendar. The bill was not considered.
HB 1475 introduced by Rep. Melvin would have created the Board of Law Practice within The Department of Business and Professional Regulation for the purpose of regulating the admission of persons to the practice of law and the disciplining of persons so admitted; provide for transfer of files, records, property and assets of The Florida Bar and The Florida Board of Bar Examiners to the Board of Law Practice and Supreme Court of Florida; provided for the establishment of The Florida Bar as a private, not-for-profit corporation chartered by the Legislature and abolishes The Board of Bar Examiners. The bill was referred to House Judiciary Committee where it was withdrawn by Rep. Melvin before it could be discussed.
During the 1997 Legislative Session HB 1817 was introduced by Rep. Melvin -- a joint resolution that would move the regulation of The Florida Bar from the state Supreme Court to the Legislature. The proposal passed in the House Criminal Justice Appropriations Committee by a 5-4 vote, but died on the House floor.
Again, during the 1998 session, Representative Melvin introduced HJR 633 which would have called for a citizen vote on amending the constitution to provide for the regulation of lawyer admission and discipline by the Legislature. Melvin, however, withdrew the measure from further consideration during the session.
In the 2001 session, similar bills in both chambers (HJR 627 - Brummer and SJR 1794 - Garcia) would have significantly altered the separation of power among Florida's three governmental branches – changing greatly the primacy of Supreme Court jurisdiction, its various writs powers, court rulemaking, and the justiciability of many legal matters. Proposed changes within Article V would have effectively disintegrated The Florida Bar and split regulation of the practice of law between the judicial and legislative branches based on whether an attorney’s practice was “before the courts of the state” or not. On the eighth day of session, the Brummer bill was the subject of a 4½ hour workshop in the House Judicial Oversight Committee. However, both these measures – and another House bill to disband the Bar and create a Board of Law Practice within the Department of Business & Professional Regulation (HB 1767 - Melvin) – all died in committee without further action.
Leading the bill filings for the 2002 Legislative Session, HJR 1 (Kyle) was another attempt at comprehensive reform of Florida’s judicial branch and Article V. A Senate companion (SJR 1528 - Cowin) followed. Although similar in most every way to HJR 627 & SJR 1794 in the 2001 Session, neither of these 2002 proposals would not have disintegrated The Florida Bar. Neither bill was ever heard in committee, and both died without other action. Separately, in the House, Representative Melvin once more sought a constitutional amendment (HJR 1337) to substitute the Department of Business & Professional Regulation for the Supreme Court in matters of lawyer admission and discipline. That proposal had no Senate companion, and died without ever being heard by committee.
In 2004, Rep. Simmons filed HB 1357 which prohibits lawyers from running ads soliciting clients to file lawsuits. The proposal died in committee.
1949 -- Petition of Florida State Bar Ass'n, 40 So. 2d 902 (Fla. 1949). The Court integrated The Florida Bar pursuant to its inherent power.
1952 -- Court authorized an increase in dues from $5 to $10 annually (with a $10 cap). In re The Florida Bar, 62 So. 2d 20 (Fla. 1952).
1959 -- Petition to Dade County Bar Association President's and State Attorney's Special Committee, 116 So. 2d 1 (Fla. 1959). The court held that circuit courts have inherent power to discipline lawyers and can appoint lawyers to conduct investigations into allegations of the ethical conduct in their circuits.
1961 -- In re The Florida Bar, 133 So. 2d 554 (Fla. 1961). The court adopted article XV, Professional Service Corporations -- which authorized lawyers to practice law as corporate entity under the Professional Service Corporation Act.
1961 -- In re The Florida Bar, 135 So. 2d 715 (Fla. 1961). The court adopted wholesale amendments to article XI -- Rules of Discipline.
1965 -- In re The Florida Bar, 175 So. 2d 530 (Fla. 1965). The court amended article III and adopted article XVI, UPL Rules -- established the rules of procedure to be used in policing the Unauthorized (now Unlicensed) Practice of Law.
1966 -- In re The Florida Bar, 184 So. 2d 649 (Fla. 1966). The court authorized an increase in dues from $25 to $37.50.
1966 -- In re The Florida Bar, 186 So. 2d 781 (Fla. 1966). The court adopted article XVII, authorizing the creation of the Clients' Security Fund.
1969 -- In re The Florida Bar Board of Governors Action, 217 So. 2d 323 (Fla. 1969). Certain lawyers sought review of action taken by The Florida Bar. The court denied the lawyers' petition and discussed at length the authority of The Florida Bar to take action on matters relating to the judicial system and the legislative system.
1969 -- In re The Florida Bar, 225 So. 2d 881 (Fla. 1969). The court amended article XI -- Rules of Discipline.
1970 -- In re the Integration Rule of The Florida Bar, 235 So. 2d 723 (Fla. 1970). The court adopted Code of Professional Responsibility of the ABA as a measure of professional conduct, the violation of which leads to discipline, and adopted article XIX, group legal services.
1971 -- In re The Florida Bar, 248 So. 2d 475 (Fla. 1971). The court authorized an increase in dues from $37.50 to $50.
1974 -- In re The Florida Bar, 294 So. 2d 309 (Fla. 1974). The court authorized an increase in dues from $50 to $75.
1974 -- In re The Florida Bar, 297 So. 2d 10 (Fla. 1974). The court amended article II, article VII, and article XI. In amending article XI the court added several new disciplinary procedure rules (i.e., waiver of confidentiality).
1976 -- In re The Florida Bar, 338 So. 2d 1072 (Fla. 1976). The court approved trust accounting bylaws promulgated by the Bar which established minimum procedures to be followed and records to be kept.
1977 -- In re The Florida Bar, 349 So. 2d 630 (Fla. 1977). The court amended Disciplinary Rules 2-106 and 2-107, but rejected the Bar's request to limit the percentages on contingency fees that lawyers charge their clients.
1978 -- In re Interest on Trust Accounts, A Petition of The Florida Bar, 356 So. 2d 799 (Fla. 1978). The court established a voluntary interest on trust accounts program via amendment to article XI.
1978 -- In re The Florida Bar, 358 So. 2d 1363 (Fla. 1978). The court authorized a dues increase from $75 to $125.
1979 -- In re The Florida Bar, 366 So. 2d 1176 (Fla. 1979). The court amended article III of the Integration Rule to create a seat on the Board of Governors to represent nonresident members of The Florida Bar.
1982 -- In re The Florida Bar, 416 So. 2d 1124 (Fla. 1982). The court authorized a dues increase from $125 to $140.
1983 -- In re Amendment of Integration Rule of The Florida Bar, 439 So. 2d 213 (1983) (Westman) upheld the right of the Bar to lobby for its members in those areas germane to the compelling state interest in the improvement of the administration of justice and advancement of the science of jurisprudence.
1986 -- Gibson v. The Florida Bar, 798 F.2d 1564 (1986) concluded in part that The Florida Bar may use compulsory Bar dues to finance its legislative program only to the extent that it assumes a political or ideological position on matters that are germane to the Bar's stated purpose. The court opinion also noted that the Bar could speak on any issue so long as it did so without using the compulsory dues of dissenting members. In a footnote to the decision, the court suggested that the difficult task of discerning proper Bar position issues could be avoided by one of two methods. First, there could be a voluntary program in which lawyers would not be compelled to finance the legislative program, or second, there could be a refund procedure through which dissenting lawyers would receive back that portion of their dues allotted to lobbying.
1988 -- The Florida Bar re Amendment to Rule 2-9.3. This opinion represents formal court adoption of the "member objection" procedure, as a bylaw provision, within the Rules Regulating The Florida Bar. This procedure has been in use since March 1987 when it was initially implemented within Standing Board Policy 9.11.
1988 -- The Florida Bar re Schwarz, 526 So. 2d 56 (Fla. 1988). ["Schwarz I''] reflected the Florida Supreme Court's guidance on permissible areas of legislative activity for The Florida Bar. Additionally, the court requested comments and recommendations from the Judicial Council on this topic. The opinion also suggested that the Board of Governors "review its policies and current political activity in light of the decisions of other jurisdictions."
1989 -- The Florida Bar v. Schwarz, 552 So. 2d 1094 (Fla. 1989) cert. denied. 111 S.Ct. 371 (1990). ["Schwarz II''] set forth five subject areas as clearly justifying legislative activity by The Florida Bar, as recommended by the Judicial Council. The court also listed three additional criteria to be used to determine the type of proposed legislative topics which the Bar could advocate when legislation appears to fall outside the other five areas.
1990 -- In re The Florida Bar, 562 So. 2d 343 (Fla. 1990). The court authorized a dues increase from $140 to $190.
1990 -- Keller v. State Bar of California, 496 U.S. 1 (1990) reaffirmed the constitutionality of the integrated bar and clarified most of the First Amendment implications of political and ideological activities of those mandatory membership organizations. The court proclaimed that unified bar dues may fund expenditures "necessarily or reasonably incurred for the purpose of regulating the legal profession or "improving the delivery of legal services available to the people of the State.' " Otherwise, unified bars must implement procedures to accommodate member dissent from any other political or ideological activities funded with mandatory dues.
1991 -- Gibson v. The Florida Bar, 906 F.2d 624 (11th Cir. 1990) cert. dismissed 502 U.S. 104 (1991) (No. 90-1102) ["Gibson II''] resulted in the approval, with one minor flaw noted, of the Bar's formal procedures for member dissent from questioned legislative activities.
In the meantime, various state bars continue to study the Keller case and its impact on mandatory dues collection practices and the political activities of the unified bar.
1991 -- The Florida Bar Re Frankel, 581 So. 2d 1294 (Fla. 1991) clarified the Florida Supreme Court's viewpoint that its Schwarz II guidelines, to verify permissible topics for Bar legislative activity, were consistent with the U.S. Supreme Court's Keller holding, and represented the full scope of allowable Bar lobbying. Legislative advocacy of certain children's issues was ruled beyond the Bar's permissible scope, and was enjoined with an order that the Bar also refund the petitioning member a proportionate share of his compulsory dues applicable to the impermissible activity plus interest calculated from the date of payment.
1992 -- Amendments to Rules Regulating The Florida Bar - 1-3.1(a) and Rules of Judicial Administration - 2.065 (Legal Aid), 598 So. 2d 41 (Fla. 1992) discussed appropriate means to address the problems of legal representation for the poor, after consideration of a report by a Joint Commission of Florida Bar and Florida Bar Foundation representatives. The Court approved a Joint Commission recommendation for an annual minimum of 20 hours of voluntary pro bono legal services to the poor, from each Bar member, or an alternative contribution of $350 to a legal service agency. The Court opinion endorsed the development and control of such activities at the circuit level, to meet special needs of each community. On June 23, 1993 the Florida Supreme Court adopted the recommendations of the Joint Commission of The Florida Bar and Florida Bar Foundation concerning pro bono. The modification of Rule 4-6.1 of Rules Regulating The Florida Bar include mandatory reporting of pro bono work. (See Pro Bono Publico Board Information Paper)
1992 -- The Florida Bar Re Authority of a Voluntary Section to Engage in Legislative Action, Case No. 79,321, Petition Denied (Fla., May 1, 1992) involved an inquiry from the Public Interest Law Section (PILS) as to whether the Bar's governing board could prohibit a section from lobbying a particular issue based on a determination that the topic involved "a matter of deep philosophical or emotional division among a substantial segment of the membership of the Bar." The petition sought to clarify basic section authority for legislative activities, and to rescind the Board's prohibition of PILS to lobby a bill upon application of that standard, subsequently codified as Bar legislative policy. The matter was briefed by PILS, the Bar and amicus curiae but the petition was summarily denied.
1998 -- Donald Tobkin v. Kimberly L. Jarboe, et al., Case No. 91,236 (Fla. May 28, 1998) resolved an apparent conflict between Tobkin and Bar Rules on the issue of what immunity, if any, is afforded and individual who files a complaint against an attorney with The Florida Bar. The court held that an individual who files a complaint against an attorney and makes no public announcement of the complaint, thereby allowing the grievance procedure to run its natural course, is afforded absolute immunity from a defamation action by the complained-against attorney. However, if after filing a complaint, the complainant comments publicly or outside the grievance process, then the afforded immunity ceases to exist.
C. The Florida Bar
The Florida Bar Board of Governors established the Discipline Procedure Committee in 1977 chaired by William G. Grimes of Bradenton to examine the Bar's discipline system and to make recommendations for improvement. The committee was divided into subcommittees to study various aspects of the disciplinary system. The Grimes Committee Report of November 29, 1978, was the composite of those subcommittees' recommendations. Following are some of those recommendations:
1. Governing Body
- That the court retain the exclusive jurisdiction over the discipline of attorneys;
- That it is essential to the continued existence of an integrated Bar that the Bar supervise the discipline under the direction of the court; and
- That there be established an Appellate Review Committee in each circuit to hear any appeal by a complainant upon the finding of no probable cause; that the committee be comprised of five members of The Florida Bar and two public members, all appointed by the Board of Governors.
- That confidentiality be waived for any charge that indicates a violation of the trust accounting rules or for an attorney who has received within the preceding five years discipline consisting of a Board level private reprimand or greater.
The Chief Justice of the Florida Supreme Court and the President of The Florida Bar began discussing in January 1977 the formation of a supreme court committee, the Special Committee for Lawyer Disciplinary Procedures, to review disciplinary rules and procedures. In April 1977, Justice Frederick B. Karl was appointed chair of that committee. The Karl Committee presented its findings to the court and on May 24, 1979 the court issued its ruling which included the following changes: that lay persons be added to grievance committees; that the Board of Governors be taken out of the adjudicatory phase of the disciplinary process; that trial judges serve as referees; that confidentiality be eliminated after probable cause has been determined; and that the Bar discipline staff be increased.
In June 1982, a four member fact-finding team from the ABA's National Center for Professional Responsibility submitted to The Florida Bar a 45-page report containing 30 recommended changes in the Florida disciplinary system. The report essentially suggested that Florida adopt the ABA's 1979 model standards for lawyer discipline and disability proceedings. Among the most significant changes recommended by the ABA team were for the Bar to reduce the size and role of the circuit grievance committees, remove the Board of Governors and judicial referees from the discipline process and limit Supreme Court review to those grievance cases involving suspension or disbarment. The ABA report stressed streamlining the Florida system to reduce the time required to settle grievance cases.
In 1987, the Disciplinary Review Commission chaired by Bill Loucks was created by the Bar's Board of Governors. The Commission was charged with the duty of examining and evaluating the system for disciplining Florida lawyers to determine whether the procedures were working effectively and whether they would work in the future under a rapidly increasing citizen and lawyer population. The Loucks Commission submitted four recommendations to the Board:
- Complainants in Bar discipline proceedings may discuss the facts and circumstances surrounding their complaints against a lawyer, as well as the fact that a complaint has been filed with The Florida Bar.
- The complainant shall not have absolute immunity or privilege from civil liability when filing a complaint; however, if the complaint is filed in good faith and without malice, then the complainant shall have no civil liability.
- Authorized representatives of The Florida Bar shall respond to specific inquiries concerning matters which are in the public domain, but otherwise confidential under the rules, and acknowledge the status of the proceedings.
- The Florida Bar's disciplinary proceedings and all matters related thereto and therein shall be confidential until such time as there is a "no jurisdiction," "no probable cause," or "probable cause" disposition. Upon such disposition, The Florida Bar may reveal that disposition, the reason therefore, and may share, upon request, any public record documents.
In May 1989, the Board accepted revised recommendations and sent them to the Florida Supreme Court for final action.
The Court threw open the grievance procedure to public scrutiny on February 15, 1990, with a ruling that abolished the Bar's "Gag Rule," allowed public access to portions of Bar grievance records and eliminated absolute immunity for complainants.
In a March 16, 1990 clarification, the Florida Supreme Court opinion stated that the grievance rules granting public access to Bar discipline records would not be applied retroactively. Most past disciplines would remain confidential unless complainants disclosed the information.
In early 1988, The Florida Bar mailed a questionnaire to all 213 nonlawyer public members of the grievance committees to solicit their views and attitudes regarding the regulatory process. Sixty-nine percent responded to the survey, giving very high marks to the discipline system. The Bar also held several "town hall" meetings to hear testimony from the general public regarding lawyer regulation.
In October 1991, the initial report of The Florida Bar's special committee on Evaluation of Disciplinary Enforcement was issued in response to the ABA's McKay Commission findings. Some of the more significant recommendations included the following:
- Regulation of the legal profession should remain under the authority of the Judicial Branch as now provided for by the state constitution;
- An expansion of the scope of public protection;
- A more fully public discipline process; and
- Providing for procedures in lieu of discipline for minor misconduct.
In 2001 the ACAP (Attorney-Consumer Assistance Program) was instituted to assist in resolving disputes between lawyers and consumers as an alternative to utilizing the discipline process. The program is located Tallahassee and is comprised of five attorneys and support staff. A consumer accesses the program via a toll free phone number and there is no charge to any of the participants. Staff attorneys attempt to informally mediate the dispute by calling the lawyer, explaining the consumer's concerns, receiving feedback from the attorney and following up with the consumer.
Prior to ACAP, there was no vehicle by which the Bar could try to resolve conflicts between attorneys and clients, without resorting to the disciplinary system. ACAP has reduced the number of disciplinary complaints from about 10,000 per year to about 8,500.
In 2002 a Statewide Advertising Grievance Committee was established to review potential advertising violations that occur anywhere within the state in order to achieve a more consistent application of the advertising rules. Only 10 states regulate attorney advertising and Florida's regulatory scheme is considered the most stringent in the country.
The 2003 Special Commission on Lawyer Regulation has not yet completed its assessment of The Florida Bar's disciplinary system and has therefore not yet submitted any recommendations.
D. American Bar Association
The Special Committee on Evaluation of Disciplinary Enforcement (Clark) was created at the Midyear Meeting of the American Bar Association in February 1967. The committee was charged with the following responsibilities:
To assemble and study information relevant to all aspects of professional discipline, including the effectiveness of present enforcement procedures and practices and to make such recommendations as the committee may deem necessary and appropriate to achieve the highest possible standards of professional conduct and responsibility, and . . . that the study is to be carried out in cooperation with state and local bar associations.
When the committee presented its final report in 1970, it had identified 36 specific problems in four separate areas: financing, structure and staff; practice and procedures; interagency relations; and ancillary problems. Some of the primary problems listed were:
- Cumbersome structures that result in an inordinate time gap between the inception and conclusion of disciplinary proceedings.
- Non-representation of substantive segments of the Bar on disciplinary agencies.
- Few investigations initiated without specific complaint.
- Inadequate and poorly trained professional staff.
- Inadequate provisions for dealing with attorneys incapacitated by reason of mental illness, senility or alcohol/drug addiction.
- No procedure for notifying disciplinary agencies when attorneys admitted to practice in their jurisdiction are disciplined elsewhere.
- Reluctance on the part of lawyers and judges to report instances of professional misconduct.
- Inadequate provisions concerning public disclosure of pending disciplinary proceedings. July 1995
In 1990, the ABA began its first national study of discipline since the Clark Commission. In February 1992, the ABA House of Delegates approved, with some modification, the report provided by the Commission on Evaluation of Disciplinary Enforcement.
Some of the recommendations of the ABA included the following:
- Continued regulation of the profession by the judiciary;
- Expanding the scope of public protection and rehabilitative remedies available to the lawyer;
- Provisions for central intake mechanism;
- Random audits of trust accounts;
- Independence of disciplinary officials; and
- Procedures in lieu of discipline for minor misconduct.
A Florida Bar committee reviewed those recommendations as they relate to the Florida discipline system. As a result the Bar has proposed a practice and professionalism enhancement program to the court. An important component of that program will be an ethics school.
E. Other Groups' Positions
FLORIDA MEDICAL ASSOCIATION -- This group has said they would push to have Bar discipline put under the Florida Department of Business and Professional Regulation; FMA filed a petition with the Supreme Court in 1989 asking it to make that change as part of the Bar's grievance rules, but the court rejected the request.
ATTORNEY'S BAR ASSOCIATION, INC. -- Our Goals . . .
"· To amend the Florida Constitution and/or pass legislation to remove the regulation of lawyers from the Supreme Court, except in matters of original admission and misconduct in court; to thus but lawyers on a par with, and to extend to them the rights of, all other professionals in the state.
"· To be an advocate for the rights of individual lawyers to act as their consciences may dictate, free of unnecessary and intrusive Court and/or Florida Bar regulation." (Florida Bar News ad 3/1/94).
NATIONAL ORGANIZATION OF BAR COUNSEL -- David E. Johnson, Jr., President -- This group, comprised of prosecutors and judges from state lawyer discipline systems around the nation, made specific recommendations to the ABA Commission on Evaluation of Disciplinary Enforcement (McKay Commission):
Public Outreach -- Disciplinary agencies should use such vehicles as Yellow Pages and tollfree telephone numbers to counteract their "invisibility.''
Management -- Deadlines should be imposed to complete investigations and prosecute charges, complimented by computer tracing and aging of all cases to ensure compliance.
Confidentiality -- At a minimum, court rules should permit disclosure of pending formal charges against a lawyer; formal hearings should be open to the public.
Relations with Complainants -- Disciplinary agencies should be easily accessible; complainants should have absolute immunity from civil suit.
Prosecutorial Discretion -- Bar counsel should be independent from improper judicial influence or interference of bar association leaders; written policy guidelines should specify the types of complaints which can be dismissed without investigation.
Alternatives to Discipline -- Disciplinary agencies should foster alternative means to resolve consumer complaints, such as arbitration and mediation to handle some of the more minor lawyerclient problems; fee arbitration should be mandatory for lawyers.
Disciplinary Procedures -- Lawyers should receive clear notice of pending complaints and should be separately disciplined for failure to respond.
Professionalism -- Bar counsel should be fulltime professionals, and personnel policies should encourage careers in discipline.
Duties of Lawyers -- Written fee agreements should be required for all new clients and for all domestic relations matters; a national uniform law identification number should be developed and assigned to each law school graduate, for use in any jurisdiction where the lawyer practices, to facilitate accurate discipline records and notice of discipline to all appropriate jurisdictions.
IV. Facts and Statistics
- Approx. 45.32% of bar dues dollars was spent on the lawyer discipline in 2002-2003.
- $20 of each lawyer's dues ($265) goes to Clients' Security Fund.
- Approx. 58% of bar dues dollars is allotted to the lawyer regulation program in 2003-2004 Operating Budget.
- Over 671 volunteer grievance committee members serve at no public expense.
- Overview of Florida discipline statistics:
Number of Attorneys
Number of Disciplines
- There are 37 integrated bars
- The unification movement began in 1921 when the State Bar Association of North Dakota was unified. Six bars were unified in the 1920s; 14 in the 1930s; four in the 1940s; four in the 1950s; there in the 1960s; three in the 1970s; and one in the 1980s (Hawaii in 1989). Unification in Wisconsin, which began in 1956, was suspended in 1989 and reinstated in 1992. (Source: Unified Bar Associations, ABA Issues Handbook, 2003)
- Four unified jurisdictions also have statewide voluntary bar associations: D.C., North Carolina, Virginia and West Virginia. (Source: ABA Issues Handbook, 1999)
- At least 24 unified bars have established relief mechanisms for members who object to certain political/ideological activity funded by their mandatory dues since the U.S. Supreme Court ruling in Keller v. State Bar of California (June 1990) mandated that such mechanisms be created. (Source: ABA Issues Handbook, 1999)
- Most states and the District of Columbia have full-time disciplinary counsel. There are nonlawyers on disciplinary hearing panels or disciplinary boards in 46 jurisdictions. (Source: Lawyer Discipline, ABA Issues Handbook, 2003)
- Upon the filing and hearing of charges, hearings are open in 37 jurisdictions. Complainants have absolute immunity in at least 32 jurisdictions and qualified immunity in nine states. (Source: Lawyer Discipline, ABA Issues Handbook, 2003)
- Almost all jurisdictions have client protection funds, 32 have trust account overdraft notification programs, and 12 have random audit programs. (Source: Lawyer Discipline, ABA Issues Handbook, 2003)
Prepared by The Florida Bar Department of Public Information and Bar Services with the assistance of the Lawyer Regulation Department. The Florida Bar.