The Florida Bar
Political Activities of The Florida Bar
On This Page
II. Florida Bar Policy
III. Judicial History
IV. The Legislative Program
The Florida Bar's political and ideological activities are primarily influenced by the Rules Regulating The Florida Bar as promulgated by the Supreme Court of Florida, by operational policies of the bar's governing board, and by court decisions that have focused on the First Amendment rights of individual members of unified state bars or other mandatory membership organizations.
Within those confines, The Florida Bar works to assist and to advise the legislative branch on a variety of lawrelated matters. And, through its officers, volunteer members, professional staff and retained counsel, The Florida Bar presents a visible and respected presence within the state legislature and other governmental bodies.
II. Florida Bar Policy
The bar's rules authorize the board of governors to establish, maintain and supervise "a program for providing information and advice to the courts and all other branches of government concerning current law and proposed or contemplated changes in the law." Rules Regulating Fla. Bar 23.2(d)(4).
Bylaws to the Rules Regulating The Florida Bar specify that official legislative positions are affected by vote of the board, the executive committee, or singular act of the president. Rules Regulating Fla. Bar 29.3(a). Standing Policies of the Board of Governors -- namely the 900 Series -- provide greater detail on this process and other procedural aspects of bar legislative activities.
Proposed legislative positions for The Florida Bar are usually first considered by the legislation committee, a ninemember group chaired by an incumbent board member and composed of at least five persons who were board members at the time of their appointment. The committee generally advises the organization's leadership regarding all legislative matters affecting the bar, its committees, and its sections. The Florida Bar may only advocate legislative positions that are true to its chartered purposes "to improve the administration of justice" and "to advance the science of jurisprudence." R. Regulating Fla. Bar 12. Case law has further refined those general terms and more specifically shaped the present limits of the bar's legislative authority.
Review of legislation by all of the bar's various approval authorities involves a twostep analysis. Any potential position of The Florida Bar or an organic bar committee must undergo a threshold analysis to verify whether the matter is within the scope and purposes of the bar, followed by a second determination of the merits of the issue as proposed. For the Board of Governors to formalize a proposal as an official bar position, a twothirds margin on both these votes is required of those governors present at a regular meeting of the board.
The executive committee's role in such matters is set by board policy that acknowledges legislative issues may arise quickly during a session, and can require action prior to the next board meeting. A majority of the executive committee members acting on a matter must initially confirm that the requested action could not reasonably have been submitted to the board, or that there has been a significant material change in circumstances since the board's last meeting, to necessitate executive committee action on behalf of the bar.
For the executive committee to formalize a proposal as an official bar position, the committee's finding that the issue is within the scope and purposes of the bar requires a twothirds vote of the committee. Any subsequent action on the merits of the measure similarly requires a twothirds vote.
During a legislative session when it is not feasible to convene the executive committee, the president may act upon pending or proposed legislation. Board policies state that such emergency action should be in consultation with the presidentelect and chair of the legislation committee if possible under such circumstances.
Once adopted, legislative positions of the bar are published in The Florida Bar News for official notice to every member. Within 45 days of the date of publication, bar members may file a written objection to a specific legislative position. Upon receipt of a timely objection, dues money allocated to the advocacy of any contested issue is immediately escrowed for possible rebate. The Board of Governors has an additional 45 days to decide whether to authorize a pro rata refund to the objecting member, or to refer the matter to arbitration.
Legislative positions of bar sections evolve via a similar procedure, in that they are usually first considered by the legislation committee and then by the board. To accommodate bar sections with active legislative programs, board policies provide for an expedited review of section submissions upon request. Procedures reflect a "notice and estoppel" type philosophy, which acknowledges a section's basic authority to lobby a matter unless prohibited by the bar within specific timelines, or affected by court action.
The bar may prohibit a section from advocating a particular position only if any of the following criteria are not met: (1) the issue is within a section's subject matter jurisdiction as reflected in its bylaws; (2) the issue is either beyond the scope of The Florida Bar to advocate, or is within the bar's scope but not inconsistent with any existing bar position; or (3) the issue does not present the potential of deep philosophical or emotional division among a substantial segment of the bar's membership.
Legislative positions advocated in the name of The Florida Bar and underwritten by mandatory membership fees are distinct from those advanced and supported by volunteer section funds. Any presentation of a bar section's position to legislators or others is required by Florida Bar policy to be clearly identified as a section position -- and not a matter advocated by The Florida Bar -- unless the board votes to make the issue a bar position as well.
III. Judicial History
In re Florida Bar Board of Governors' Action, 217 So.2d 323 (Fla. 1969): Political activity by the Board of Governors on behalf of The Florida Bar was first challenged in the Supreme Court of Florida in 1969. Although the court summarily denied a petition for review of the bar's advocacy of a proposed revision of the state constitution -- and a membership referendum on the measure -- Justice Hopping issued a special concurrence.
After reciting the history of Florida's unified bar, Justice Hopping noted as to "political" advocacy:
The test as to whether or not The Florida Bar should engage in a particular activity is not whether the activity is "political" in nature or directly connected with the administration of justice. The true test is whether the matter is of great public importance, and whether lawyers, because of their training and experience, are especially fitted to evaluate the same. If a matter vitally affects the public, and lawyers are peculiarly fitted to be the evaluators, it is not only the right but the duty of the Bar as a professional organization to make such evaluation and advise the public of its conclusions.
Upon further describing the bar's representative form of board governance and apportionment, Justice Hopping also noted:
If the matter on which the Board of Governors speaks meets the tests heretofore set out, this Court should not second guess the position taken by the Board of Governors because to do so would substitute this Court's beliefs for that of the Board's. While there is no guarantee that the Court's views represent the views of the lawyers of this state, because the Board of Governors is the duly elected spokesman of the lawyer members of The Florida Bar, its view is at least representative.
The Florida Bar, 439 So.2d 213 (Fla. 1983): The Florida Bar's "political activities" were again called into question in a 1983 proceeding wherein 25 members petitioned for Florida Supreme Court amendment of bar rules, to read: "The Board of Governors shall not engage in any political activity on behalf of The Florida Bar nor expend money or employ personnel for such purpose."
The court initially determined that the improvement of the administration of justice and the advancement of the science of jurisprudence are compelling state interests sufficient to justify a constitutional intrusion into an individual's freedom of association.
After reviewing the bar's history of advocacy among the various branches of state and federal government, the court held that The Florida Bar's political activities particularly as limited by operational policies of its governing board were germane to compelling state interests. The petition was therefore denied.
Gibson v. The Florida Bar, 798 F.2d 1564 (11th Cir. 1986): In "Gibson I" a member challenged The Florida Bar's opposition to a state constitutional proposition (eventually struck from the general election ballot) that would have created limits on governmental revenues. Gibson argued that his First Amendment rights of free speech and association were violated by such use of his compulsory dues to advocate political and ideological positions.
The court held that: (1) the bar could use compulsory dues to finance its lobbying efforts only to the extent that its legislative positions were germane to the bar's stated purposes; and (2) the bar had the burden of proving that its lobbying expenditures were constitutionally justified, by showing that its past positions were sufficiently related to the bar's purpose of improving the administration of justice.
In one footnote, the court opinion indicated that acceptable areas for bar lobbying would include the following topics: (1) questions concerning the regulation of attorneys; (2) budget appropriations for the judiciary and legal aid; (3) proposed changes in litigation procedures; (4) regulation of attorneys' client trust accounts; and (5) law school and bar admission standards.
Another footnote indicated that the difficult task of discerning proper lobbying positions could be avoided by either of two methods: a voluntary program allowing lawyers to contribute to the legislative program as they wished; or a refund procedure allowing dissenting lawyers to object to a bar position and to then receive that portion of their dues allotted to lobbying.
The Florida Bar re Schwarz, 526 So.2d 56 (Fla. 1988): In "Schwarz I" a member sought appointment of an ad hoc committee to study the legality, propriety, scope and procedure through which the Supreme Court of Florida should exercise its political power via delegation to its "official arm," The Florida Bar. The court declined to appoint a special committee, but referred the matter to the Judicial Council for comment and recommendations.
The Florida Bar Re. Amend. to Rule 29.3, 526 So.2d 688 (Fla. 1988): In view of the developing law in this area, the bar sought amendments to its rules to set forth a procedure and potential remedy for members who would question the propriety of the use of their bar dues to support legislative positions approved by the Board of Governors. The procedures, as adopted then, remain the heart of the bar's current rule on member dissent and dues rebates. The court's opinion adopting the rule included this additional observation: "Although the pecuniary recovery may be limited, members of the bar should still be able to bring injunctive actions seeking to prevent unauthorized bar activities and expenditures."
In response to Schwarz I, the Judicial Council issued a special report entitled Legislative Activities of The Florida Bar and dated December 1988. The Council recommended that the following subject areas be recognized as clearly justifying legislative activities by the bar: (1) questions concerning the regulation and discipline of attorneys; (2) matters relating to the improvement of the functioning of the courts, judicial efficacy and efficiency; (3) increasing the availability of legal services to society; (4) regulation of attorneys' client trust accounts; and (5) the education, ethics, competence, integrity and regulation as a body, of the legal profession.
The Judicial Council recommended that, when a matter appears to fall outside the five specifically identified areas, the following criteria be used to determine whether the bar could become actively involved in its advocacy: (1) that the issue be recognized as being of great public interest; (2) that lawyers are especially suited by their training and experience to evaluate and explain the issue; and (3) the subject matter affects the rights of those likely to come into contact with the judicial system.
The Florida Bar re Schwarz, 552 So.2d 1094 (Fla. 1989), cert. denied 498 U.S. 951 (1990): In "Schwarz II" the recommendations of the Judicial Council requested after Schwarz I were approved by the Supreme Court of Florida for determining the scope of permissible lobbying activities of The Florida Bar.
The court further observed "that the Board exercise caution in the selection of subjects upon which to take a legislative position so as to avoid, to the extent possible, those issues which carry the potential of deep philosophical or emotional division among the membership of the Bar." The court added: "In any event, we also wish to make clear that any member of The Florida Bar in good standing may question the propriety of any legislative position by the Board of Governors by filing a timely petition with this Court."
Finally, the court suggested two refinements of Rule 29.3, regarding burden of proof and the confidentiality of objecting bar members' names. Both were later codified, along with other minor amendments to the rule.
Keller v. State Bar of California, 496 U.S. 1 (1990): The most definitive U.S. Supreme Court pronouncement in this area came after members of the California State Bar challenged their bar's use of mandatory dues to finance a variety of socalled political activities. In extending the labor union analogy to unified bars, the High Court ruled that a compulsory state bar association may constitutionally fund with mandatory dues only those political or ideological activities "germane" to its purpose: namely, "regulating the legal profession or 'improving the quality of the legal service available to the people of the State' " The opinion further acknowledged that, with appropriate member notification and dissent procedures in place, an even broader range of political activities (if within the organization's basic authority) can be funded from mandatory dues of nonobjecting members.
Gibson v. The Florida Bar, 906 F.2d 624 (11th Cir. 1990), cert. dismissed, 502 U.S. 104 (1991): "Gibson II" continued one member's challenge of The Florida Bar's use of his compulsory dues to fund political lobbying. Gibson appealed the denial of his original claim in Gibson I, for declaratory and injunctive relief, after the district court judge reviewed the 1988 revisions to Rule 29.3 on member objections to legislative positions.
The Eleventh Circuit Court of Appeals held that, with the exception of one minor feature since corrected, the escrow/rebate procedures in Rule 29.3 were sufficient under U.S. Supreme Court guidelines. In so doing, the court rejected Gibson's claim that an advance dues deduction scheme was mandated for the portion of dues that the bar knows it will use for political activity.
The court further noted that Rule 29.3's requirement of an objection to specific legislative issues does not dictate that individuals disclose their personal sentiment on any topic. And, the opinion observed that the mere fact the threemember arbitration panel called for in the rule is composed of bar members would not taint any proceedings thereunder.
As to the amount of interest on any dues refunds paid, the court faulted Rule 29.3's plan for calculations "as of the date the written objection was received." The opinion observed that, in order to protect against the danger that a dissident's dues could be used to finance questioned advocacy, "the Bar would have to calculate interest as of the date that payment of the members' dues was received." That concept is now incorporated into the current objection procedures.
The Florida Bar re Frankel, 581 So.2d 1294 (Fla. 1991): After the U.S. Supreme Court's opinion in Keller a member challenged The Florida Bar's authority to lobby several "children's" issues, both under Keller and the Florida Supreme Court's Schwarz II holdings.
After failing to find the questioned issues within the five primary areas noted in Schwarz II as clearly justifying bar advocacy, the court addressed another Frankel challenge by determining that the three additional criteria in Schwarz II were consistent with the Keller holding.
In its application of the three additional Schwarz II standards the court determined that, while the contested matters were of great public interest, they failed to satisfy the second Schwarz II criterion -- that lawyers were especially suited by their training and experience to evaluate and explain the issues. The court did not consider the third criterion.
As to an appropriate remedy the court again noted that, if a lobbying position is outside the gambit of permissible bar advocacy, a petitioner may enjoin the bar from lobbying on that issue. The bar was therefore ordered to refund Frankel a proportionate share of his dues applicable to the challenged matters, plus pertinent interest.
Taking its first opportunity to comment on the intervening Eleventh Circuit Court of Appeals ruling in Gibson II, the Florida Supreme Court agreed that The Florida Bar need not recognize generalized member objections to legislative matters, and that the bar's codified objection procedures were not overly burdensome.
The Florida Bar Re: Authority of a Voluntary Section to Engage in Legislative Action, No. 79,321, Final Order (Fla. May 1, 1992): This case ensued after the Board of Governors of The Florida Bar prohibited the Public Interest Law Section of The Florida Bar from advocating the repeal of Florida's prohibition against adoptions by homosexuals. The board's action was premised on a belief that the issue would be divisive within the bar's membership at large.
The section petitioned the Supreme Court of Florida to verify whether the Frankel opinion authorized section lobbying essentially without any restraints by The Florida Bar. The Frankel case had included an observation that "volunteer sections" were the appropriate entities for advocating issues outside the guidelines for permissible lobbying activities of The Florida Bar as established in the Schwarz II opinion.
The section's petition was summarily denied after the bar submitted pleadings that noted the issue of section lobbying was neither briefed nor argued in Frankel, an that lobbying by subunits of a mandatory membership organization -- especially on topics that may be divisive within the general membership of the umbrella group -- raised particularly unique freedom of association issues.
The Florida Bar's response also noted that sections "of" a unified bar -- with no independent basis for existence and often funded with mandatory monies -- seem quite distinctive from the financially autonomous and wholly separate "voluntary" groups discussed in the controlling federal court cases as acceptable alternatives to lobbying by a mandatory membership organization.
The Florida Bar, Re: Harvey M. Alper, Joseph W. Little and Henry P. Trawick, No. 84,615, Final Order (Fla. Jan. 30, 1995): Petitioning Bar members sought a Florida Supreme Court order clarifying that The Florida Bar is without authority "to employ any funds, personnel, property, symbols or other evidences of Bar involvement in promoting or advocating any change in the means by which judges are selected in Florida," or "in promoting or publicizing the merit retention elections of incumbent justices and judges." Petitioners asserted that a legislative position of the Bar to eliminate the popular election of trial judges and the Bar's distribution of printed materials -- allegedly favorable toward incumbent merit retention candidates -- to the public media and local bar associations were divisive political and ideological activities outside the limits of the Bar's authority clarified in Schwarz and Frankel. Petitioners asserted that these are matters on which lawyers have no claim to a superior position, and that such activities violate their First and Fourteenth Amendment rights under Keller.
The Florida Bar's response initially noted that neither questioned matter was a current Bar program, but that both activities meet the Schwarz and Frankel criteria. The Bar stressed the special value of its collective opinion regarding judicial selection, and reiterated that petitioners' argument confused the objective question of whether an issue is germane to the administration of justice with the subjective question of the desirability of any proposed change. Regarding its printed merit retention materials, the Bar emphasized their complete neutrality -- as separately determined by the Department of State -- and noted The Florida Bar's uninterrupted history of never endorsing individual judicial candidates. The Supreme Court of Florida summarily denied the petition.
Petitioners thereafter sought a writ of certiorari from the United States Supreme Court. Following the submission of briefs, the Court denied the petition without an opinion.
These court opinions merely delineate the legislative authority and political agenda of the organization known as The Florida Bar. They do not foreclose additional advocacy throughout the state's legal profession -- whether by individual lawyer licensees of the bar, or by separately funded voluntary groups of attorneys. And, the unified bar's legislative activities remain quite significant.
IV. The Legislative Program
The primary functions of The Florida Bar's governmental affairs office include: coordinating the legislative activities of The Florida Bar and various other subgroups; staffing the Legislation Committee of the Board of Governors; advising elected leaders and outside consultants on various legislative issues; and serving as a general information resource to all members of The Florida Bar on legislative matters.
Legislative counsel and advisors are retained to advocate the official positions of The Florida Bar in the legislative arena.
Recently, a key contact program was established. Lawyers who have contact with or a personal relationship with state and federal lawmakers can volunteer to participate in the program. Those who volunteer are kept informed on various issues that comprise the Bar's political agenda and are called upon to present the Bar's views as necessary. These lawyers serve as the localized components of an influential statewide network that often augments the efforts of the bar's Tallahasseebased legislative resources. During the 1998 legislative session, efforts by local attorneys were highly effective in defending Article V, section 15 of the state constitution which authorizes the Florida Supreme Court to regulate the legal profession, and other legislation affecting the Bar.
Consistent with the distinction between "big bar" and section lobbying, some sections of The Florida Bar have separate grassroots lobbying systems. Others may retain their own outside counsel, who assist volunteer members in advocating a section's particular positions in the legislature.
The Florida Bar serves as a ready resource of information and technical assistance on various legislative matters. The governmental affairs office prepares and disseminates a variety of materials to assist bar leadership, retained advisors and volunteer attorneys in keeping abreast of significant political matters affecting the legal profession. Bar legislative staff receive and maintain copies of all prefiled legislation, passed bills and new laws. At the conclusion of each session, the office produces a compilation of all passed legislation of interest to the legal profession. All these items and services are available upon request.
To assist in managing this volume of legislative output, the governmental affairs office uses information made available online by the Florida Legislature. Online Sunshine can be reached at http://www.leg.state.fl.us.
The 1998 regular session ended May 1, 1998. During the session, 2,795 bills were introduced and additional House bills from the 1997 session were also available for consideration. In November 1996, the House adopted a policy extending the life of a bill from one year, to a twoyear period. Senate bills die at the end of each session if they are not passed by both houses. Of that total, 554 or approximately 20% of all filed bills passed. The Senate filed 1,372 bills, of which 206 passes both houses. In addition to the 1,198 house bills filed during the 1997, of which 242 passes, the House also filed 1,423 bills in 1998. Of the House bills available for consideration from the 1997 and 98 sessions, 348 passed House Chambers.
Many political challenges face Florida's lawyers. There are declining numbers of attorneys serving in the legislature. The legal profession is often viewed as unpopular with the public, and this attitude is reflected by their elected representatives. The legal system has been identified by certain interest groups as the root of various social problems.
There is too little understanding of the role of the judiciary, the rule of law, or the significance of attorneys within our democratic society. Some of the bar's legislative positions have been directed at topical matters.
The Florida Bar has nevertheless served, in the heat of political debate, to represent the profession's unique perspective to preserve and enhance the rule of law and the independence of the judiciary.
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance from the
Governmental Affairs Office.