Week 5: March 31 - April 4, 2014
Weekly Legislative Session Updates
Week 5: March 31- April 4, 2014
The legislative session passed its halfway point this week. With the anticipated week “off” for Passover and Easter, the pressure to move legislation through committees has increased dramatically. A small sampling of headlines best illustrates the hectic pace: “Expressway Authorities Targeted”; “Immigrant Tuition Bill Debated”; “Human Trafficking Targeted”; “Lawmakers Look to Shift Textbook Control”; “Lawmakers Seek to Boost Telemedicine”. And these were just Tuesday’s hot button issues!
Amidst all of these policy discussions, both chambers also passed their respective budgets this week and will now prepare for the budget conference process.
Responding to drastic employee turnover in the court system statewide, the State Courts System has made pay equity and retention its top budget priority this session. A recently updated study indicates the average salary for a court employee is 12.59% below the average salary of other state employees in similar job categories.
This imbalance has resulted in turnover exceeding 50% in some circuits and the loss of key managers and high performers. The imbalance also makes it difficult to develop and retain remaining employees to fill the knowledge and experience gaps, to keep the courts running efficiently for the benefit of the individuals and businesses that turn to the justice system for the peaceful resolution of disputes.
The State Courts System believes the salary imbalance exceeds $18 million but – in recognition of the considerable size of that request – has asked the Legislature to provide $9.8 million this year as part of a two-year implementation period.
UPDATE: As expected, both the Senate and the House passed their respective versions of the state budget, including the State Courts System budget. Nothing of substance changed from the versions of the courts system budget approved last week by the Senate and the House Appropriations Committees. The Senate budget contains some funding and partial authorization for the courts to address its employee pay equity issue. The House budget does not provide for this issue but does include funding for 21 new judgeships.
Rep. Elaine Schwartz from Hollywood offered an amendment to address judgeships in Broward County. The amendment would have added six judgeships in Broward County as recommended by the Supreme Court. After House Justice Appropriations Chair Rep. Charles McBurney explained there was not enough money in the budget for the full list of new judgeships recommended by the Court, the amendment was withdrawn.
The action now moves to the budget conference committees, which will work out the final budget to be approved by both chambers. The Bar will continue to work with the judiciary, the business coalition for court funding, and others to achieve full funding of the courts’ pay parity issue, as well as the pay issues for prosecutors and public defenders.
UNAUTHORIZED PRACTICE OF LAW:
Currently F.S. §454.23 makes the unlicensed practice of law (UPL) a third-degree felony. Both SB 1496 by Senator Greg Evers and HB 7039 by Rep. Mike Hill would exempt certain activities from the criminal penalties for UPL under that statute. Those exempt activities would be: pro se representation; serving as a mediator or arbitrator; providing services under the supervision of a lawyer in compliance with The Florida Bar’s Rules of Professional Conduct; providing services authorized by court rule; acting within the lawful scope of practice of a business or profession regulated by the state; the giving of a legal notice in the form and manner required by law – but do not include any notices required as part of a court proceeding or as required by court, or representation before a legislative body, committee, commission or board.
Proponents of the legislation are concerned over the application of a criminal penalty for the “unlicensed practice of law” when that term is not defined in F.S. §454.23. But, separately, the bill does not appear to reduce or affect the current civil authority of the Supreme Court and the Bar to regulate UPL consistent with Article V, Section 15 of the Florida Constitution.
Although the criminal penalty in the statute is rarely – if ever – utilized, there is concern by the Bar that the legislation will cause confusion and may encourage bad actors to engage in even more creative instances of UPL and cause additional harm to Florida consumers.
The House staff analysis of HB 7039 recognizes that the Florida Supreme Court has the exclusive jurisdiction to regulate attorneys and the inherent jurisdiction to prohibit UPL. The analysis also states the exceptions listed in the legislation do not constitute a substantive change because the exceptions are a codification of existing rules, case law and practices already recognized by the Supreme Court.
The Florida Bar opposes this legislation and adopted the following position:
“Supports the exclusive jurisdiction of the Supreme Court of Florida to define the practice of law in this state consistent with Article V, Section 15 of the Constitution of the State of Florida. In furtherance thereof, The Florida Bar opposes SB 1496 and HB 7039 in the 2014 Legislative Session.”
UPDATE: SB 1496 was on the Senate Judiciary Committee agenda this week after being temporarily postponed the previous week. The bill was, again, not heard as the committee ran out of time to hear all of the bills on its agenda. The bill remains in the Senate Judiciary Committee.
The Bar had testified earlier in opposition to the bill, which is being pushed by community association managers who want to be exempt from the third-degree felony provisions that could be criminally prosecuted as the unauthorized practice of law. No community association manager has ever been cited – either civilly or criminally – for the unauthorized practice of law. The Bar is concerned the bill will encourage bad actors to hide behind these various exemptions within the bill and harm consumers.
The Bar also feels the third-degree felony provision – enacted in 2004 by the Legislature and signed into law by Governor Bush – has been an effective tool against individuals who have harmed consumers through the unauthorized practice of law. The 2004 felony provision was enacted by the Legislature in response to a number of instances involving unlicensed practitioners who frequently charged high fees to poor clients and then did little, if any, work, resulting in some tragic consequences for the consumer.
The House companion, HB 7039, remains in the House Judiciary Committee.
CIVIL LEGAL ASSISTANCE FUNDING:
The Florida Access to Civil Legal Assistance Act (FACLA) was enacted in 2002, passed overwhelmingly in a bipartisan vote and signed into law by Governor Bush. The act provides legal assistance to the poor in a select and limited number of cases dealing with family law, juvenile law, entitlements to federal government benefits (including veterans’ benefits), protection from domestic violence, elder and child abuse and immigration. None of the funds can be used for class action suits or to sue state or local government entities. The Legislature has funded the program each year in a range between $1 million to $5 million, but the appropriation has been vetoed by the Governor the last three years. We remain hopeful the Legislature will again fund the program and that the Governor will approve the appropriation this year.
UPDATE: No changes to civil legal assistance funding were made as both chambers adopted their respective state budgets. The Senate provides $2 million in funding, while the House provides $1 million.
STUDENT LOAN ASSISTANCE:
SB 146 by Senator Jeremy Ring and HB 77 by Representative Jim Waldman - This legislation creates a student loan program for certain attorneys employed as an assistant state attorney, assistant public defender, assistant attorney general or assistant statewide prosecutor. The attorney must have been employed at least 3 years, but not more than 12 years of continuous service as an eligible attorney. The purpose of the program is to provide financial assistance to eligible attorneys for the repayment of student loans. The amount of assistance provided would be determined each year by the Legislature but would provide annual maximum caps as well. Similar bills have been filed in past sessions but have not generated much momentum – evidencing the difficult part of balancing the benefits of this great program with other pressing needs of increasing base salaries and benefits. The bills have been referred to various committees but have not been placed on any agendas.
UPDATE: Again, neither bill was heard in committee this week.
DISABLED DEPENDENT CHILDREN - APPOINTMENT OF ATTORNEY:
SB 972 by Senator Bill Galvano and HB 561 by Representative Erik Fresen - This legislation requires a judge to appoint an attorney for a dependent child with a suspected or known disability. The legislation is consistent with the Bar’s general position on children representation. Currently, a court may appoint an attorney to represent a child in a dependency proceeding, but the representation is not mandatory. The proposal contains legislative findings that recognize there are already existing organizations that provide effective representation to children and that funding under the bill is not intended to supplant existing monies.
The bills provide that their implementation is dependent on funding by the Legislature. The House staff analysis for HB 561 points out a December 2011 DOJ finding that the State of Florida had failed to provide for severely disabled, dependent children in accordance with the ADA. HB 561 passed the House Civil Justice Subcommittee (10-0) and is now in the House Justice Appropriations Subcommittee. SB 972 has not yet been heard.
UPDATE: Good news. Both the Senate and the House bills moved out of committees this week. HB 564 passed the House Justice Appropriations Committee by a vote of 12-0 and now moves to its last committee of reference, the House Judiciary Committee. SB 972 passed the Senate Judiciary Committee by a vote of 9-0 after it was substantially amended. The adopted amendment provides that attorney fees are subject to review by the Justice Administration Commission for reasonableness and authorizes the JAC to contract with attorneys selected by the Guardian Ad Litem program. The amendment also caps attorney fees at $3,000 per child. SB 972 is now in its last committee of reference, the Senate Appropriations Committee.
For more detailed information on specific legislation tracked by The Bar, visit the Legislation Committee’s webpage on The Bar website at this link:
Information on all bills of general interest within the profession can be found in The Bar’s “2014 Legislation of Interest to the Legal Profession” at this link: