by Judge William A. VanNortwick, Jr. and Kent R. Spuhler, Jr. and Paul C. Doyle, Jr.
Florida lawyers have long responded to the legal needs of the poor through volunteer service. The history of the organized delivery of legal services for the poor in Florida begins in the Depression Era. During that period several communities in Florida developed, under the leadership of local bar associations, legal aid programs to address the local needs of the poor for legal assistance. These programs operated primarily with voluntary staff to handle intake and to refer cases to private attorneys who volunteered their time. In some instances, the programs received United Way (most commonly then referred to as Community Chest) or other community funding to support part-time or full-time nonlawyer intake staff.
In the mid 1960s, with the advent of President Johnson’s War on Poverty, federal funding created the opportunity for the development of staffed attorney programs, primarily in the urban areas of Florida. Many bar associations with significant legal aid programs, both staffed and pro bono, elected to continue their own programs and not to accept federal funds to expand the size and scope of existing programs. In those communities, individual attorneys and community groups formed separate organizations to receive federal funding and to initiate new programs for the delivery of legal services to the poor. Orange, Hillsborough,1 Dade, Leon, and Palm Beach counties are the primary examples of such dual program development. In some instances, such as in Duval, Broward, and Volusia counties, bar associations applied for federal funds to expand the size and scope of their programs. In most other Florida counties, no organized effort emerged among lawyers or in the general community for the creation or expansion of programs to deliver services to the poor through federal funding.
The Levinson Report
1) Establish federally funded civil legal services programs in communities not served.
2) Provide adequate funding for legal services programs.
3) Provide in-house counsel to inmates at all institutions for relatively long-term detention.
4) Establish other federally funded legal services programs in other areas on the basis of the peculiar type or intensity of local need.
5) Encourage performance of pro bono services, including the establishment of a guideline setting an amount of pro bono work that is appropriate and enactment of legislation to enable government attorneys to do pro bono work.
6) Establish a statewide organization to coordinate, improve, and initiate legal services programs throughout Florida.
It is a comment on the farsightedness of the Levinson Report that its recommendations have been and continue to be of great importance in Florida. For example, it was not until 1981 that federally funded civil legal services programs had been created and expanded to cover all counties in Florida, although actual service availability was more a fiction than a reality in many counties. Many rural counties still have only nominal levels of service. In addition, it was not until 1994 that a program was adopted in Florida to encourage and facilitate greater voluntary pro bono service and a guideline was established on the appropriate minimum amount of pro bono service that should be provided each year.
Nevertheless, by the close of the decade of the 1970s, the need for the delivery of civil legal assistance to the poor in Florida continued to outdistance efforts to expand such assistance. In 1979, in The Florida Bar v. Furman, 376 So. 2d 378 (Fla. 1979), the Supreme Court of Florida recognized the seriousness of the problem:
Devising means for providing effective legal services to the indigent and poor is a continuing problem. The Florida Bar has addressed this subject with some success. In spite of the laudable efforts by the bar, however, this record suggests that even more attention needs to be given to this subject.2
The Furman Report
1) Statewide implementation of a pro bono representation plan (similar to the mandatory plan of the Orange County Bar Association).
2) Expansion of staffed legal services offices coverage and funding.
3) Expansion of use of paralegals and lay representation.
4) Enactment of a public interest attorney fees statute.
5) Reform of the in forma pauperis statute.
6) Simplification of dissolution of marriage proceedings and other cases.
The crisis occasioned by the 25 percent cutback in federal funds in 1982 also engendered significant growth in pro bono efforts during the 1980s. The 1980s also saw a very significant demise in the distrust and misunderstanding that had plagued the relationships between many federally funded programs and many bar associations in their service areas, as all parties sought to preserve and bolster the legal services delivery system. Local funding initiatives for legal services for the poor were also expanded and resulted in program enhancement in some areas.
In 1980, in In Interest of D.B., 385 So. 2d 83 (Fla. 1980), the Florida Supreme Court recognized the historic obligation of the legal profession to represent indigent persons. In D.B., the court explained the obligation as follows:
The common law obligation of the profession to represent the poor without compensation has been carried forward in contemporary practice by cases such as United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S. Ct. 550. 15 L. Ed. 2d 469 (1966), which endorse the historical concept that one who is allowed the privilege to practice law accepts a professional obligation to defend the poor.
D.B., 385 So. 2d at 92 (emphasis in original).
Special Commission on Access
1) Adopt statewide mandatory pro bono legal services.
2) Adopt mandatory IOTA.
3) Expand the Florida Equal Access to Justice Act, F.S. §57.111, to provide for recovery of attorney fees in litigation with state and local government agencies for all prevailing individuals.
4) Continue support from The Florida Bar for state funding of delivery of legal services to the poor.
Over the last two and one-half decades, Florida has undertaken significant efforts to expand, improve, and strengthen the delivery of legal services to the poor in Florida. The creation of the IOTA program to help support the delivery of legal services to the poor was a first in the nation. In addition, the efforts of several bar associations in Florida have created noteworthy examples of some of the most successful pro bono programs in this country.
The Levinson Report, the Furman Report, and the recommendations of the Special Commission on Access possessed several common themes. All recommended a greater statewide effort to expand and support both pro bono and staffed legal services for the poor. Specific positive developments occurred in response to these recommendations. In 1973, the joint efforts of The Florida Bar and Governor Reubin Askew led to the creation of the Florida Legal Services, Inc. Currently, Tallahassee-based FLS serves as the statewide provider of program technical support, staff training, coordinator of the pro bono plan, coordinator of staff workgroups, and provider of legislative and administrative advocacy on behalf of clients of legal services and pro bono programs throughout the state. Although the Florida Supreme Court rejected a statewide mandatory pro bono program in 1983,4 the court adopted the United States’ first voluntary interest-on-trust account program in 1978,5 and adopted a mandatory IOTA program in 1989.6
Development of Current Pro Bono Plan
At about the time the Joint Commission was formed, a group of 58 Bar members filed a petition with the Florida Supreme Court seeking to have the court 1) amend the Rules Regulating The Florida Bar to provide that “[i]t is the duty of every member of The Florida Bar to provide aid to indigents as and when ordered by the courts”7; and 2) adopt a rule of judicial administration that would require each circuit to develop a plan addressing the legal needs of the poor in that community.8 Although the court declined to adopt the proposed mandatory pro bono rule, it deferred consideration of the proposed Rules of Judicial Administration pending the court’s receipt of the report of the Joint Commission,9 and again took the opportunity to articulate the lawyer’s professional obligation to represent the poor. The court said:
When an individual is admitted to practice law in Florida, he or she becomes an officer of its courts upon taking an oath expressly adopted by this Court. The oath extensively sets forth the responsibilities and obligations of lawyers in Florida. The last sentence expressly states: “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person’s cause for lucre or malice.” Rules Relating to Ethics Governing Bench and Bar, 145 Fla. 763, 797 (1941) (emphasis added). This provision identifies one of the specific public responsibilities lawyers have as officers of the court.
We recognized the historic obligation of the legal profession to represent the poor in our decision in In Interest of D.B. In that decision we explained the different means by which counsel can be provided where permanent termination of child custody is in issue. We also upheld the authority of the court to appoint counsel and the responsibility of the bar to provide representation. In that case, we noted:
Lawyers as advocates are essential to our common law adversary system. An adversarial system of justice requires legal representation on both sides in order for it to work properly. Without adversaries, the system would not work. Consequently, the obligation to represent the “defenseless and oppressed” is critical to our judicial system if it is to work properly for all segments of our society.
We hold that every lawyer of this state who is a member of The Florida Bar has an obligation to represent the poor when called upon by the courts and that each lawyer has agreed to that commitment when admitted to practice law in this state. Pro bono is a part of a lawyer’s public responsibility as an officer of the court.10
The Joint Commission filed its report with the court in March 1991. In summarizing its assessment of legal needs of the poor in Florida, the Joint Commission found that “only approximately 20% of the legal needs of the poor [in Florida] are being addressed”11 and that it is clear that critical legal needs of the poor generally and of groups with special legal needs, such as children, institutionalized persons, and migrant farmworkers, are not being met with present resources and will not be met with presently anticipated increases in resources.12 The Joint Commission concluded that increasing pro bono legal services was one of the means of improving the access of the poor to legal representation, explaining:
[S]ignificant increases will be possible only through the active support of the lawyers of Florida and leaders of The Florida Bar and local voluntary bar associations to develop, expand and implement, on a statewide and local basis a pro bono plan by which Florida lawyers can fulfill their professional obligation to perform such services and by which pro bono programs are strengthened and expanded to effectively utilize such services. 13
Among its 31 recommendations, the Joint Commission suggested the Florida Supreme Court adopt a voluntary pro bono legal services plan which 1) suggested a minimum for each attorney of 20 hours of voluntary pro bono legal services, which can be collectively met under certain circumstances, or an alternative contribution to legal services of $350; 2) narrowly defined pro bono services to ensure availability of legal services to the poor; 3) suggested that these services be developed and controlled by local community entities; 4) suggested that all lawyers be included in the plan to the extent legally and practically feasible; and 5) provided for reporting by each lawyer as a means to determine accountability of lawyer participation.14 Although the court recognized that “[l]awyer pro bono representation is not the absolute solution to the problem of indigent representation,”15 the court found that the Joint Commission’s pro bono plan was “an appropriate starting point to resolve the legal needs of the poor”16 and approved the recommended plan with some modifications. The court directed the Joint Commission to prepare proposed rules to implement the plan.17
The Joint Commission’s proposed rules were adopted, as modified, by the court in June 1993.18 In adopting the rules creating the pro bono plan, the court explained the need and goals for the plan as follows:
[T]his Court, as the administrative head of the judicial branch, has the responsibility to ensure that access to the courts is provided for all segments of our society. Given the number of reports presented to this Court that document the legal needs of the poor, we find it necessary to implement the attached rules. Justice is not truly justice if only the rich can afford counsel and gain access to the courts. Consequently, these rules are being implemented in the hopes that they will act as a motivating force for the provision of legal services to the poor by the members of this state’s legal profession.
We realize, however, that the rules we adopt in today’s opinion will not be the prime motivating force in making the legal system work through the provision of pro bono services—only lawyers themselves can do that. Nevertheless, by implementing the aspirational standards set forth by the rules . . . we hope that the lawyers of this state, as officers of our courts, will recognize the clear legal needs of the indigent in this state and will act to provide the necessary services.19
Implementation of the
Pro Bono Plan
The mandatory individual attorney reporting requirement has been one of the most controversial aspects of the 1993 pro bono rule.21 Nevertheless, the data gathered from those reports has both shown the impressive pro bono efforts of Florida lawyers22 and given local pro bono programs valuable information to further expand their pro bono efforts. In May 1997, the Florida Supreme Court reaffirmed its support of Florida’s statewide legal services pro bono plan by rejecting a challenge to the annual mandatory reporting of pro bono legal services by Florida attorneys by concluding: “The mandatory reporting requirement is essential to guaranteeing that lawyers do their part to provide equal justice.”23
On January 12, 1998, the United States Court of Appeals for the 11th Circuit affirmed a district court decision dismissing a constitutional challenge to Florida’s pro bono rule by an individual Florida attorney.24
With legal challenges now resolved, Florida’s legal profession is poised to renew its efforts to expand and improve the use of pro bono legal assistance in the struggle to provide the poor in Florida greater and better access to justice. At the writing of this history, The Florida Bar and the Florida Bar Foundation, in partnership with private law firms, are creating the first full- time statewide director of pro bono legal services to work with circuit committees to expand local pro bono efforts and to work with Bar sections, law firms, and statewide voluntary bar associations to develop statewide pro bono initiatives.25 Thus, Florida continues to be a leader in seeking 100 percent participation, being mindful of the charge of the Supreme Court of Florida:
Pro bono legal service to the poor is an integral and particular part of a lawyer’s pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance.26 q
1 The dual programs in Hillsborough County were consolidated in 1990.
2 The Florida Bar v. Furman, 376 So. 2d 378, 382 (Fla. 1979).
3 In re Interest on Trust Accounts, 402 So. 2d 389 (Fla. 1981).
4 The Florida Bar—In re Emergency Delivery of Legal Services to the Poor (Mandatory Pro Bono), 432 So. 2d 39 (Fla. 1983).
5 In re Interest on Trust Accounts, 356 So. 2d 799 (Fla. 1978). The program became operational in 1981. In re Interest on Trust Accounts, 402 So. 2d 389 (Fla. 1981).
6 In Re Interest in Trust Accounts: A Petition to Amend the Rules Regulating The Florida Bar, 538 So. 2d 448 (Fla. 1989).
7 In Re Amendments to Rules Regulating The Florida Bar - 1-3.1(a) and Rules of Judicial Administration - 2.065 (Legal Aid), 573 So. 2d 800, 801 (Fla. 1990).
10 Id. at 803, 804, and 806.
11 Opening the Doors to Justice—The Quest to Provide Access for the Poor in Florida, Report of The Florida Bar/Florida Bar Foundation Joint Commission on the Delivery of Legal Services to the Indigent in Florida 15 (1991). Copies of the report are available through The Florida Bar.
13 Id. at 16.
14 Id. at 40–47.
15 Amendments to Rules Regulating The Florida Bar - 1-3.1(a) and Rules of Judicial Administration - 2.065(Legal Aid), 598 So. 2d 41, 43 (Fla. 1992).
17 Id. at 44.
18 In re Amendments to Rules Regulating The Florida Bar - 1-3.1(a) and Rules of Judicial Administration - 2.065 (Legal Aid), 630 So. 2d 501 (Fla. 1993).
19 Id. at 502.
20 “The Standing Committee on Pro Bono Services’ Report to the Supreme Court of Florida, The Florida Bar and The Florida Bar Foundation,” Florida Legal Services, Inc., 1999. Copies of the reports of the standing committee are available through The Florida Bar.
21 See Amendments to Rules, 598 So. 2d at 54–55 (Grimes, J., concurring and dissenting). Some commentators have suggested that Florida’s current system of voluntary pro bono with mandatory reporting will eventually lead to the adoption of mandatory pro bono. See, e.g., Owen Arcia, Objectives, Administrative Difficulties and Alternatives to Mandatory Pro Bono Legal Services in Florida, 22 Fla. St. U. L. Rev. 771, 779 (1995).
22 The pro bono efforts of Florida lawyers, based on the statistics generated from individual lawyers’ reports, have been widely noticed in the state’s news media. See, e.g., There Are Heroes, Too, In The Bar, Tampa Tribune, Feb. 28, 1998; and Lawyers Offer Free Legal Help, Miami Herald, May 19, 1997.
23 Amendments to Rule 4-6.1 of the Rules Regulating The Florida Bar-Pro Bono Public Service, 696 So. 2d 734, 735 (Fla. 1997).
24 Schwarz v. Kogan, 132 F.3d 1387 (11th Cir. 1998).
25 The leadership of these Florida law firms, demonstrated by their financing and participating as partners with The Florida Bar and the Florida Bar Foundation, is another model for law firm pro bono service. See also Debra Burke, Reagan McLaurin & James W. Pearce, Pro Non Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61, 78–79 (1994); Thomas C. Clinton, Law Firms and Pro Bono, 70 Mich. B.J. 904 (1991).
26 Rule 4-6.1, Rules Reg. The Florida Bar, Comment.\
William A. Van Nortwick, Jr., serves as a judge on the First District Court of Appeal of Florida. He received his A.B. in 1967 from Duke University and his J.D., with honors, in 1970 from the University of Florida. Judge Van Nortwick is a member of the Supreme Court Commission on Professionalism and the Standing Committee on Pro Bono Legal Services. In 1995, he received the American Bar Association Pro Bono Publico Award in recognition of pro bono legal services performed prior to his appointment to the bench.
Kent R. Spuhler received his undergraduate degree from Ohio State University in 1968 and his J.D. from Harvard Law School in 1972. Mr. Spuhler is executive director of Florida Legal Services Inc., the Florida statewide legal assistance to the poor support office. He is also the director of the Florida Supreme Court Voluntary Pro Bono Attorney Plan. He is a former executive director of the Jacksonville Area Legal Aid.
Paul C. Doyle, a 1961 graduate of Harvard Law School, is the director of legal assistance grants for the Florida Bar Foundation. He has been executive director of three legal services programs—Jacksonville Area Legal Aid, Legal Services of Upper East Tennessee, and Florida Rural Legal Services. Mr. Doyle was previously a private practitioner in Jacksonville, assistant general counsel for the City of Jacksonville, and HRS district counsel, district 2. In 1990-91, he served as staff director to The Florida Bar/Florida Bar Foundation Joint Commission on the Delivery of Legal Services to the Poor.