The Florida Bar

Florida Bar Journal

A Year of Challenge: To Sustain, Examine, and Defend

Featured Article

I am honored to have been sworn in as the 56th president of The Florida Bar. There have been in the past and will continue to be many difficult issues we face as lawyers. None may be as important as the threats and incursions that continue against the time-honored American concept of an independent judiciary.

After more than 200 years of practicing our particular brand of constitutional democracy, we as Americans must still protect our courts and court system from politicians who want to weaken the resolve of our judges and curtail access to the courts. When I say “politicians,” I do not mean that this is a partisan issue. From the most liberal president and governor to the most conservative Congress and legislature, the politicians of this country rightly pursue what they believe is the will of the people. In so doing, they are bound from time to time to run afoul of the state’s constitution or the U.S. Constitution.

When the courts step in, the political will behind legislative or executive acts is important to consider, but should never color a judicial decision. And the threat of legislative or executive authority to strip or control court funding, remove the Bar from the process of selecting jurists, or attempt to coerce judicial subservience must be held at bay. Our constitutional order and our oaths of admission demand that we vigorously defend the independence of our judiciary.

Independent Judicial Nominating Commissions
One very important way to ensure the independence of the judiciary is through nonpartisan, independent nominating commissions. In 2001, the legislature gave the governor all of the appointments to Florida’s judicial nominating commissions. This change has resulted in a strain on judicial independence and an increase in political appointments— from the commissioners to the judges themselves.

In confronting this issue, the political party to which you belong is irrelevant. Protecting the judiciary from political influence allows the United States to have a robust political debate and activity. Nonpartisan voices must be returned to our judicial nominating commissions to preserve the independence of our judiciary, the most important component of our system of justice.

Court Funding
When Floridians amended the constitution to shift the funding of our court system from the counties to the state, the purpose was to add uniformity and fairness to the way courts are funded and administered. The plan was to avoid creating a court system that divides jurisdictions into the haves and have nots. Although that plan was a good one, its purpose has not been reached. Instead, many of Florida’s smaller and more rural counties are worried that essential and important legal services, as well as fundamental access to the courts, will have to be seriously curtailed.

Due to the leadership of many fine lawyers serving in our legislature, including Senators Smith, Villalobos, and Campbell, and Representatives Kottkamp, Negron, and Benson, the ground given by the court system was minimized. In the end, though, the legislature failed to maintain current levels of funding and did nothing to improve upon existing deficiencies. Politics became the name of the game, resulting in no funding for many judges needed around the state. We must send a clear message to the House and Senate to create a funding mechanism for our courts that removes political influence from the process.

Three Initiatives
There are three other initiatives that I would like to accomplish during my term as president: a review of our lawyer advertising rules; increased funding for our most vulnerable members of society—our children; and a commitment to welcome and encourage diverse members of our Bar family to get more involved and help make our Bar stronger by virtue of our differences.

Lawyer Advertising

Surveys have shown that the single reason most people cite for our negative public perception is lawyer advertising, in particular, television advertising. They say this despite the fact that less than four percent of lawyers or law firms advertise on television.

The rules surrounding attorney advertising in Florida are like a decades-long wrestling match between an attorney’s right to engage in commercial free speech, better known as advertising and marketing to the rest of the world, and the Bar’s obligation to protect the public and our profession.

That we have multitudes of laws, rules, and regulations is evidence of the issue’s complexity, for they show just how ingrained and important the competing interests are.

Many believe all these rules and regulations regarding lawyer advertising unfairly restrain competition and therefore trade, a concept as near and dear to American capitalism as free speech is to American democracy. But this is where lady justice steps in to remind us that the overriding concern is protecting the public interest. Restricting attorneys from using puffery in their ads, or dramatizations, even when these methods are available to other advertisers, is the right thing.

I am committed, as Bar president, to maintaining what I think is the proper balance between a lawyer’s right to communicate with the consuming public and the Bar’s duty to ensure a fair, dignified, and impartial legal system.

Needs of Children

Miles McGrane made his year as Bar president the “year of the children” and did an outstanding job. I would like to continue the strides he has made in bringing greater access to the courts for Florida’s lower-income, disabled, abused, and neglected children. Because they have no way into the judicial system and there is no money to ensure they have legal representation, the rights of our children are neglected.

Working with many members of the House and Senate, and particularly with Representatives Mahon and Kottkamp and Senators Webster, Sebesta, and Smith, The Florida Bar was able to secure a continuing source of funding for children’s legal aid through the creation of the specialty license tag “Kids Deserve Justice.”

Funds generated by the “Kids Deserve Justice” license tags will be administered free of charge by The Florida Bar Foundation. This means 100 percent of the funds generated through tag sales will be used to provide grants for children’s legal services. Without this program many of these services would be unavailable.

Inclusiveness

Not too long ago, women presidents of The Florida Bar were an unheard-of phenomenon, and we have yet to elect a president of color. Nevertheless, I stand before you as evidence of a profession that can and continues to embrace inclusiveness. Our courts, law schools, and law offices must continue to include any who choose to pursue a legal career. The best way to accomplish this is by finding ways to include rather than exclude each other in our legal and professional activities. I urge all Bar members to reach out to someone who is not like you to begin a dialogue about improving Florida’s legal profession and making our system more inclusive for all attorneys. In the end, our efforts will be reflected in a stronger, more representative legal system through which we can all thrive.

From ensuring judicial independence to broadening our profession through greater inclusiveness, I hope you will be motivated to join me in confronting these issues. Together we can accomplish these goals.