Court rejects fee increase for legal aid
Court rejects fee increase for legal aid
Mark D. Killian
Managing Editor
The Florida Supreme Court has declined — for now — to allow the Bar to increase annual membership fees in order to provide additional funding for legal aid through The Florida Bar Foundation.
A split 4-3 court said July 9 that while Florida is facing a significant decrease in funding for legal aid and there is an urgent need for new solutions to ensure that every person has equal access to the judicial system, “because we believe this issue requires further study and a more comprehensive approach, we decline to adopt petitioners’ proposed amendment at this time.”
A little over a year ago, a group of Bar members petitioned the court to amend Bar rules to allow the Board of Governors to raise annual membership fees — which now stand at $265 — by up to $100, with the extra money going to the Foundation to be divided among legal aid agencies around the state.
The Foundation has seen revenue from the IOTA program plummet over the past few years because of historically low interest rates. Despite cuts to legal aid programs, the Foundation is running out of reserves. The rule change could have provided up to $10 million a year to the Foundation.
The Bar Board of Governors unanimously opposed the petition to raise the membership fees and last year approved a $6 million loan to the Foundation to be dispersed over two years and repaid over seven years, to tide the Foundation over until interest rates begin to rise.
While the majority said they agreed with the petitioners that there is an urgent need to develop new solutions and sustainable sources of funding for legal aid, the proposal did not present the type of comprehensive solution that is needed to address the crisis in legal aid funding.
“We think a more encompassing approach can be developed through the work of the newly established Florida Commission on Access to Civil Justice,” the majority said. “The commission’s work will provide studied and comprehensive recommendations to improve access to justice in this state.”
The majority said while the increased fee proposal warranted consideration, adopting any one approach to the problem at this stage “would be premature.”
Chief Justice Jorge Labarga and Justices Barbara Pariente, Charles Canady, and Ricky Polston concurred in the per curiam opinion. Justice Fred Lewis dissented with an opinion, as did Justice Peggy Quince, in which Justice James Perry concurred.
“I join the majority in rejecting the petition at this time because it does not require the Bar to raise the annual dues and the Bar has unanimously opposed the petition,” Justice Pariente said in a concurring opinion in which Chief Justice Labarga concurred. “I urge, however, that the Bar work with the petitioners to find solutions to the current crisis while the Commission on Access to Civil Justice undertakes its diligent work, including consideration of increasing the number of pro bono hours or the amount of money contributed and consideration of making that a mandatory requirement. . . . ”
“We can and we must do more — now,” Pariente said.
In dissent, Justice Fred Lewis said: “It is truly an unfortunate day for Florida as a majority of this court professes to be protecting the legal needs of many Floridians while it is actually rejecting the very simple availability of a limited tool to provide possible relief and a safety net to at least some most in need.”
While Justice Lewis said Florida lawyers “cannot and should not” be solely responsible for funding legal aid, the petition did not intend to reach that result.
“A number of outstanding members of The Florida Bar have simply requested that The Florida Bar be authorized (not mandated) to generate additional funds (not mandatory) as a tool for attempting to enhance access to justice for at least some Floridians in need,” he said.
The majority’s philosophy of refusing the availability of this “non-mandatory limited tool” because it does not guarantee to solve all problems immediately “is both misdirected and puzzling,” Lewis said.
“I suggest that there is an absence of a rational and a reasonable foundation to reject the establishment of the availability of this limited tool,” Lewis said. “The proponents in favor of allowing the creation of this additional tool have never suggested that the proposal is, would, or should become a total solution to the enormous problem facing so many Floridians or become the financial responsibility of lawyers exclusively. However, we now know with certainty that no Floridian can ever be assisted through the proposed supplementary tool that has been crushed today.”
Lewis said “one positive step at a time” is far better than waiting until committees and commissions “make recommendations that may or may not be fulfilled.”
Justice Quince also said while lawyers should not be solely responsible for providing the monetary assistance to help the poor and the middle class have access to our courts, it is part of their responsibility to assist in that endeavor.
“I recognize that lawyers have for years contributed so that others have access to our legal system through both the giving of money and the giving of their time and talent,” Quince said in dissent. “However, in this time of crisis, we would not be remiss in giving The Florida Bar the authority to require lawyers to dig just a little bit deeper to ensure that our courts remain open and accessible to all in need. Therefore, I would authorize The Florida Bar to require lawyers to pay up to $100 a year with their Florida Bar renewal.”
Update
: After the August 1 News went to press, the petitioners filed a motion for rehearing stating: “ Petitioners submit that the Opinion overlooks two points of law or fact: (A) the Court’s inherent authority to modify the relief sought in the Petition; and (B) the Court’s discretion to defer ruling on the Petition pending release of the Florida Commission on Access to Civil Justice’s interim and final reports. We discuss each in turn.” The petitioners urged the court to grant the petition, and rather than grant the Bar the authority to raise dues by up to $100, mandate the dues increase. On the second point, the petitioners said: “While the Court’s position is understandable, the Commission’s recommendations cannot be predicted; and any solution it offers may take years to implement. In the meantime, more and more indigent litigants—those most in need of legal services—will go without representation. That means more tenants who may be evicted unjustly, more Social Security recipients going without benefits, more war veterans going without needed medical care. It may be the case that, once the Commission issues its final report, the Petitioners will remain of the view that, regardless of other solutions, to provide even a part of the legal services that are required, Bar dues should be increased.”
