Remaining Vigilant to Preserve Our Unified Bar
As of July 2021, membership in The Florida Bar reached nearly 110,000, with approximately 91,000 of those members eligible to practice. We’ve come a long way since The Florida Bar was formed by an order of the Florida Supreme Court in 1949 and our Bar’s inaugural membership in 1950 of just 3,758 lawyers.
Clearly much has changed since 1950, but one important fact has not changed — our status as an arm of the Florida Supreme Court. We were formed by the court as a “mandatory” bar, sometimes called a “unified” bar. This simply means that the court has delegated certain functions to the Bar to assist the court in carrying out its obligation under the Florida Constitution to regulate the legal profession in Florida. Those functions include the lawyer regulation and discipline system (including the local grievance committees), the investigation and prosecution of claims of the unauthorized practice of law, the maintenance of a client protection fund, and continuing legal education. Today there are 31 states with unified bars.
Our status as a unified bar has important implications. One is obvious — all of us must belong to The Florida Bar and pay an annual membership fee as a condition of being licensed to practice law in this state. For more than 70 years, this unified status has greatly benefited our members, both programmatically and financially. The centralized administrative apparatus of the Bar supports our efforts to improve our skills as practitioners in service to the public. Our legislative program allows us to speak with a single voice on judicial funding, court rulemaking, and other issues of importance to the integrity of our third branch of government. And because all 110,000 of our members contribute financially to our Bar through their annual fees, those fees are among the lowest in the country for organized bars our size.
But there is another important implication of our unified status, one that is not so obvious. Because membership in our Bar is mandatory and a condition of licensure to practice, our activities are limited by the First Amendment to the U.S. Constitution. Under the First Amendment and U.S. Supreme Court authority, unified bars may participate in, or fund, activities only if they are “germane” to the goals of the mandatory membership fees, i.e., “for the purpose of regulating the legal profession or ‘improving the quality of the legal service available to the people of the State.’” Keller v. State Bar of California, 496 U.S. 1, 14 (1990). Unified bars should not engage in activities “having political or ideological coloration which is not reasonably related to the advancement of such goals.” Id. at 15-16. But as the U.S. Supreme Court noted in Keller, the line between permissible and impermissible activities “will not always be easy to discern.” Id. Similarly, in the case of In re Schwarz, 552 So. 2d 1094 (Fla. 1989), our Florida Supreme Court instructed that The Florida Bar’s legislative activities should exercise caution to avoid “those issues which carry the potential of deep philosophical or emotional division among the membership of the Bar.” Id. at 1097.
Our Bar’s Board of Governors remains vigilant to ensure that our activities remain within these constitutional limits — and that our unified status is thereby protected as much as possible — for the benefit of the court, our members, and ultimately for the public we serve.
I must also report that recently there have been challenges to the unified bar structure in several states other than Florida. In 2018, the U.S. Supreme Court decided a public-sector labor union case that some have argued undercut Keller and other precedent supporting the constitutionality of mandatory bar membership. That decision, Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), has spawned litigation in many federal courts challenging unified state bars on First Amendment grounds. Those cases are now working their way through the federal court system, and the U.S. Supreme Court might soon again address the constitutionality of mandatory bar membership.
Your leadership of The Florida Bar is watching these developments closely, and we will report to you as they unfold. I’ll conclude by saying that our unified bar is a vital institution to our branch of government in Florida and that we must not let ourselves forget why it was formed.