The Story of The Florida Bar
On April 28, 1950, the Florida State Bar Association held its last meeting at the Bar’s annual convention in Daytona Beach. That same day, The Florida Bar held its first as the official arm of the Florida Supreme Court for regulating the legal profession.
In 1977, writing about the Bar’s early, formative years, Kenneth Sherouse, Jr., who became its first executive director in 1954, said of its founders and early leaders: “It is important, if truth be told, to recall that these were men of high purpose and rectitude, debating the shape and substance of the jurisdiction of an official, integrated Bar to act, firmly intending to use the powers they were defining.”
He went on: “I should further reveal that these men who paid for the Bar from their own pockets and created such extraordinary time from their own finite allotment of life, did so in very large part because of the great respect and affection they had for each other.”
Those themes of devotion to the Bar, the legal profession, and fellow lawyers echo through reminisces and interviews with the lawyers who made the Bar what it is for its first 50 years.
According to Marshall Cassedy, the Bar’s executive director from 1961 to 1980, “From the very beginning, The Florida Bar has had a genuine spirit of unselfishness among the rank and file lawyers of the Bar and within the leadership of the Bar.
“this I mean that lawyers since the beginning have gratuitously given of their time on grievance committees, serving as referees, serving on all kinds of committees and particularly the lawyers who have served on the Board of Governors of The Florida Bar have given immensely of themselves timewise and financially without complaint.. . .
“This has been the driving force and the glue that has held us together.”
John DeVault, 1995-96 Bar president, put it this way: “The satisfying thing about Bar activities and Bar work is the quality of the people that you become acquainted with and maintain friendships with. What you get out of it are friendships with people who are of such high quality it enriches your life. It makes all the time that’s spent really worthwhile.
“They deal with important issues and they deal with them in a way that generally the results that come out of them are right.”
Current Bar President Edith Osman said the Bar’s 50th anniversary is a chance for lawyers to think about their rich history in this state and a chance to protect that history.
“When I was elected and was told we were going to have the 50th anniversary in my presidential year, I thought we’d have something to celebrate. I really didn’t think through the relevance,” she said. “I realized there is so much rich history and it hasn’t been documented. The people who know it are getting older and it is important that we preserve it.”
Remembering where the Bar came from, Osman said, is the key to protecting its ideals and values as it faces the considerable challenges of the future.
On June 7, 1949, the Florida Supreme Court approved the petition of the voluntary Florida State Bar Association to set up The Florida Bar to which all lawyers would have to belong if they wished to practice in Florida. On March 4, 1950, the court approved rules for the Bar.
A few weeks later, The Florida Bar, which had been running simultaneously with the association, became its successor and the only statewide organization for all of Florida’s attorneys. That first convention featured a debate on keeping the association intact for a year in case the Bar failed to work out (the motion failed) and an oblique reference to the attempt by African-American Virgil Hawkins to win admission to the University of Florida law school.
It was almost—but not quite—completely a white man’s Bar, but some leaders who would help change that were members—such as future Bar and ABA President Chesterfield Smith and future Governor LeRoy Collins, who served on the Legislative Committee, as did then Attorney General Richard Ervin.
Smith did not become active in Bar activities until a couple of years later when his law partner, William A. McCrae—who wrote much of the Bar’s original rules—successfully ran to be The Florida Bar’s fourth president.
“I didn’t have much thought about it,” Smith said of the Bar’s creation. “I thought, ‘Why not? That’s the way it should have been.’ I didn’t see a lot of controversy about it.”
In its first year, the Bar had dues of $5 and a total income of $38,385.04, including $16,174.87 left over from the association and $30 from the “sale of old typewriter,” according to the two-page budget. Total expenses were $10,680.25.
“The Supreme Court reigned where it could, and the Pork Choppers [in the Florida Legislature] reigned over everything else,” recalled Sherouse, writing in a 1977 issue of the Bar Journal commemorating The Florida Bar Journal ’s first 50 years.
He also noted that “the most surprising result of setting up the first accurate list of lawyers in this state was the discovery of a number of people, spread from Key West to Pensacola, practicing with some success without the benefit of clergy, law degree, or admission.”
The early years were eventful.
“In five years, roughly, The Florida Bar appeared almost out of nowhere and made a deep mark nationally by putting together an honest and impartial bar examination, a workable grievance procedure, the roots of a system for enforcing legal and judicial ethics, devices for cheaply and politely upgrading the professional competence of practitioners, and the political muscle for the well-tiered if underpaid judicial system we enjoy today,” Sherouse wrote.
It was also a different time, he noted. “They were, in fact, much better and much worse days than they now appear in memory. Back then, ‘black’ was either a color or a mood; a ‘lady’ was any white female over 21; no black and less than 10 ladies were in the Bar,” Sherouse wrote of the time the Bar came into being.
(Actually, his numbers may have been off. The organizers of the first Florida Association of Women Lawyers identified 75 women Bar members as of June 1951. And African-Americans had been lawyers since the late 1890s, when the multitalented James Weldon Johnson passed an open exam conducted by three lawyers in a crowded Jacksonville courtroom, a feat that apparently disgusted one of his inquisitors, who stomped out of the chambers. Johnson only practiced part-time, and was also a high school principal, song and opera writer, poet and novelist, and diplomat, serving as U.S. consul to Venezuela from 1906 to 1909 and to Nicaragua from 1909 to 1912. He later was field secretary for the NAACP. In 1900, he wrote “Lift Ev’ry Voice and Sing.” J. Rosamond set it to music and it became known at the Negro National Anthem.)
1960, future Supreme Court Justice Leander J. Shaw, Jr., who had graduated from Howard University’s law school, passed the bar exam, and that same year, W. George Allen entered the University of Florida law school, becoming the first African-American to graduate two years later.
The 1960s were a time of rapid change for The Florida Bar as well as for society as a whole. The Bar, which passed the 10,000 member mark in that decade, entered a period of rapid growth that hasn’t ended.
In 1962 the legislature, infamous for its pork chop politics, was unhappy about a constitutional requirement for a new circuit judge for every 50,000 residents. Lawmakers sent to voters an amendment making the provision voluntary—and the Bar opposed it. Out of more than 520,000 votes cast, the Bar position prevailed by more than 70,000 votes.
It also moved from being a small organization in borrowed or small offices to a solid professional organization, when under the leadership of 1964-65 Bar President Chesterfield Smith and others, funds were raised and the Bar’s permanent Tallahassee headquarters was constructed. (See accompanying story on the Bar Center.)
The Bar was also heavily involved in overhauling and creating procedural rules.
“We had some sorry, no-count rules of civil procedure that we rewrote and modified,” Smith recalled. “We had no other rules—we had no appellate rules; we had no juvenile rules; we had no criminal rules.”
That was rectified under Smith, and the Supreme Court largely accepted them.
In an article in the July/August 1977 Bar Journal anniversary issue, Cassedy looked back on the presidents he had served and named Smith as the one “who raised the most hell.” But it led to significant changes.
“Always stirring the pot, Chesterfield hit a calm period in midterm of his presidential year. It was too calm for him. So, almost as a lark, he purposely brought out from the back closet the most controversial subject he could find. . . yes, the Clients’ Security Fund,” Cassedy wrote.
At that point, the idea had been kicking around for about a decade, but nothing had happened. “Chesterfield loved the challenge to see if he could convince a hostile board, membership, and Supreme Court that a clients’ security fund was in the Bar’s best interest,” according to Cassedy. “You know the rest. Despite the superlative oratory of Leo Foster at the 1965 annual convention in opposition, the implementing resolution passed.”
It began operation on January 1, 1967.
The Bar was heavily involved in the constitution revision process that began in 1966. It had several appointments to the 37-member Constitution Revision Commission, and Smith was named the chair.
“The Bar was the motivating force,” Smith said. “We got rid of all the old Confederate issues. Segregation had been permitted and recognized and we got rid of that.”
Smith was distressed that the 37-member commission included only one woman, and no African-Americans. After the legislature accepted the commission’s proposed new constitution and sent it to voters, Smith set up a 37-member panel, called A Better Constitution, to advocate its approval. Its members included seven women and five African-Americans. “We got them involved in the power structure,” he said.
If anyone expected the 1970s to be a calm time, following the social upheavals of the 1960s, they were wrong.
The U.S. Supreme Court, in separate decisions, struck down attorney advertising bans and the various bar fee schedules (attorneys in some jurisdictions who charged more than the fee schedule were presumed to be overcharging and acting unethically).
The Bar was grappling with big changes also. In an increasingly specialized profession, the Board of Governors, at the urging of 1973-74 Bar President Earl Hadlow, approved the designation program. Certification was proposed a few years later during the term of 1977-78 President Russell Troutman. The court at first rejected certification in 1979, but conceptually approved it in 1981, and approved the specifics in 1982.
Wm. Reece Smith, 1972-73 president, led an effort to open up grievance records. At that time, all records were confidential until a case was concluded and the lawyer found guilty. If the sanction was a private reprimand, all the records remained sealed, as they did on cases where no probable cause was found.
After extensive debate, the board approved a plan that records would be made public after a finding of probable cause, but only for lawyers running for public office. Troutman, then on the Board of Governors, led a successful effort to retract that decision.
Opening up the grievance process was also an issue during Troutman’s presidency, and he supported the findings of a special commission which accepted Bar recommendations that public members be appointed to grievance committees.
The grievance process was overhauled and revamped, switching from reliance on voluntary Bar counsel to prosecute cases to a hired staff, and using judges to act as referees in grievance cases. The first trust accounting regulations were also added to Bar rules.
Troutman noted while the Board of Governors had monumental debates over many issues (it took two votes to get the certification proposal approved), there was little disagreement about another major new program—interest on trust accounts.
In the late 1970s, the Bar and the Florida Bar Foundation worked on a plan to voluntarily allow lawyers to assign interest on pooled small or short-term trust accounts (where the amount was too small to make it worthwhile to pay to clients) to the Foundation. In turn, the Foundation was able to use the money for grants to legal aid programs, to improving the administration of justice, and to legal education. It won approval from the Supreme Court in 1978, although it took another three years to work out the operational and tax details, which were approved by the court in 1981.
In 1978, the ABA awarded the Bar its award of merit in recognition of the IOTA efforts, Troutman said.
The Bar also stepped up its legislative efforts. Troutman said part of his campaign platform was that he would live in Tallahassee during the legislative sessions while he was president-elect designate, president-elect, and president. The Bar also upgraded its lobbying efforts, using a professional outside counsel and a full-time in-house position instead of a part-time staff position.
In response to the 1977 U.S. Supreme Court ruling legalizing lawyer advertising, the first advertising rules were adopted. While some in the Bar favored a narrow interpretation that would allow only tombstone ads with minimal information, the Florida Supreme Court rejected that in favor of broader rules that prohibited misleading information.
Rapid growth in business and population in the 1970s and 1980s stimulated rapid growth in the legal profession. The 1980s found no shortages of new challenges for the legal profession and the Bar.
A major one exploded in national news coverage in 1983 in the form of a Jacksonville former legal secretary, Rosemary Furman, who opened a business filling out legal forms and—as documented by the Bar but generally ignored by the media—providing legal advice, much of it erroneous. It occupied much of the Bar’s attention in 1983, 1984, and 1985.
“This lady had a hot issue, but she was the wrong person to bring it up in that she had really injured her clients,” said 1984-85 Bar President Gerald Richman. “It was probably the best example of why the public needs to be protected. That lady was not there to help the public; she was there to make money, and she injured the public. It did result in getting lawyers out of doing a lot of mundane things that you didn’t need lawyers for.
“The Bar acted properly and it eventually led to the public being able to get less expensive services without the expense of a lawyer.”
Growing out of that, Richman said, was an increasing awareness of the importance of public relations to Bar work, as well as the beginning of the realization of the importance of professionalism and ethics and public involvement in Bar activities.
That was reflected in Richman’s last Board of Governors meeting as president. one-vote margins, the board passed separate proposals requiring lawyers to complete 30 hours of continuing legal education credits every three years and to add two nonlawyer, public members to the Board of Governors. The Supreme Court approved both recommendations.
“That was just a step,” Richman said of the CLE vote. “[Former federal District Court Judge] Peter Fay said he never went to a CLE function without learning something that was important. To me, it’s an essential part of being professional, and I think you’ll find most lawyers exceed the minimum CLE requirements.”
The CLE requirement has become accepted by Bar members, although some rumbles continued for years. That prompted Justice Overton to observe at a Bar meeting, about a decade after the CLE vote, that virtually all regulated professions have mandatory continuing education — with most of the learned professions having far more time-consuming standards. In fact, he noted the Bar’s 10 hours a year average was the same as that imposed on interior designers.
Adding public members, Richman said, was good for two reasons: It helped the Bar’s image and provided valuable input. Although also decided by a close vote, having public members has become almost universally praised among board members, and public members have become strong public supporters of the Bar and the legal profession.
the late 1980s, advertising and IOTA were back on the front burner of Bar issues. Barraged by ever more aggressive ads, using paid spokespersons, dramatizations, and perhaps insupportable claims, the Bar appointed a special committee which drew up new advertising regulations.
The proposals, among other things, prohibited dramatizations, banned self-laudatory statements, required a disclaimer that consumers should rely on more than the ad in selecting a lawyer, and required Bar review of ads that provided more than certain basic information.
They were hotly debated, approved, and sent to the Supreme Court in 1989.
Also controversial was the proposal from the Bar Foundation to make IOTA mandatory—all attorneys would have to keep client funds that were otherwise too small to generate interest income for clients in pooled interest-bearing trust accounts with the Foundation as beneficiary. It won board and court approval.
Also in 1989, the board proposed a moderate loosening of the confidentiality provisions. The changes would have allowed complainants to reveal they had filed a case after a grievance committee had found probable cause.
The Supreme Court opened the 1990s by ruling in both the ad and greivance cases. The grievance ruling followed, by a month, a federal district court finding that the Bar could not prohibit those who filed grievances from revealing that action.
In the greivance opinion, the Supreme Court dramatically opened up the process to public scrutiny, including making all records—except confidential client records—public once a case was concluded, whether discipline was imposed or not. (See the article on discipline on page 46.)
In the ad ruling, the revised advertising rules were largely approved—and almost immediately challenged in federal court. That led to a 1995 U.S. Supreme Court 5-4 ruling upholding the rules, the first time since the original 1977 ruling that any bar regulations had passed the high court’s muster.
The dust was still flying on those two issues when the Bar became immersed in another huge issue—pro bono services.
A group of lawyers led by then ABA President-elect Sandy D’Alemberte had filed a petition in the Supreme Court asking that Bar rules be amended to create a pro bono plan. They asked that each circuit draw up a plan for providing civil services to the poor, including that judges be empowered to appoint lawyers to handle various cases.
At 1990 oral arguments, the Bar advocated a purely voluntary approach, and asked for time for a joint Florida Bar/Bar Foundation task force to study the issue and make recommendations. The court granted the time.
The task force studied three options: a purely voluntary plan, a plan with voluntary goals but requiring Bar members to report how much service they provided, and a mandatory plan requiring lawyers to provide a minimum amount of service each year.
The task force recommended voluntary goals (20 hours a year or a $350 donation to a legal aid organization), but with mandatory reporting. The Bar Board of Governors asked for voluntary reporting.
After a rehearing in 1992, the court approved the task force’s recommendation, but continued to take input on how the program should work. It issued the final rules order in mid-1993, and the program became official that October. The Bar began collecting information on its annual membership fee form the following summer.
In 1996, by a one-vote margin, the Board of Governors asked the court to reconsider the mandatory reporting requirement. The justices declined to make it voluntary.
The right of the court to make those decisions came under attack from the legislature.
In fact, according to DeVault, the 1995-96 Bar president, perhaps the biggest challenges faced by the Bar in the past decade were several attempts in the legislature to approve and send to voters a constitutional amendment to alter regulation of the legal profession. The bills would have removed oversight from the Supreme Court and given it to the legislature, presumably with the legal profession being regulated by the Department of Business and Professional Regulation.
Another issue was the increasing commercialization of the practice of law, in part shown by the increase in lawyer advertising, DeVault said. And lawyers also became more involved in providing legal services to the poor, both through the pro bono plan and other ways.
“Back in the 1970s, the federal government took care of everything; they gave us lots of money,” said DeVault, who became involved in Bar work through Jacksonville Area Legal Aid, where he rose to be president of that group. “the 1990s, the federal government had backed off, IOTA and lawyers stepped up.”
The legislative challenges were at least partially beaten back because of other things the Bar did, DeVault said. For example, he noted the Bar could show it spent more and operated more openly with its grievance system than any profession regulated by DBPR. Several comparisons from the 1980s and 1990s showed the Bar also disciplined a higher percentage of its members and was the only profession to involve a significant number of the public in its grievance process.
Likewise, the advertising regulations, while not deemed completely successful by some, cured many excesses and help improve the image of lawyers, DeVault said.
Directly from efforts of DeVault, his successor as president, John Frost, and Supreme Court Justice Harry Lee Anstead, the Bar established its Center for Professionalism for work with the Supreme Court’s new Commission on Professionalism. Professionalism as well as ethics is now a regular part of many CLE courses.
“The ethics and professionalism push was certainly a response to the low esteem in which the profession was coming to be viewed by everyone,” DeVault said. “In the last few years, it has proven its value and I think we have turned the corner as a result of that.”
Professionalism has played a part in the Bar’s last great challenge of the millennium and first of the new age: ancillary business and multidisciplinary practices.
“As a learned profession, that has the threat of totally changing what we are from a profession to totally a business,” DeVault said. “Businesses look out for what is best for the bottom line, not what’s best for the client, the court, or the system of justice.”
In the midst of those issues, the Bar experienced another milestone. In 1992, Miami attorney Patricia A. Seitz, now a federal district judge, won a close race over Orlando’s John E. Fisher after a campaign that virtually ignored that Seitz was the first woman to run for and win the Bar’s presidency. She served as president-elect in 1992-93 and as president the following year.
Among her efforts: using the Board of Governors’ annual retreat to raise professionalism issues and initiating a series of town hall meetings to bring the Bar closer to its membership, particularly sole practitioners and small firm lawyers.
In late 1997, current President Edith Osman filed unopposed to become the Bar’s second woman leader—and the first Bar leader of the new millennium.
With a history of attacking and solving tough problems, the Bar will face plenty of challenges in the future, from multidisciplinary practices to funding for the justice system to dealing with the technology and information revolution.
“I do feel we are at a crossroads in the profession and it results from a lot of things that have happened societally. Technology and e-commerce are going to change how we practice,” President Osman said. “Because of technology, many of our clients are going to be changing and many of our clients’ jobs are going to be eliminated. What impact is that going to have on the profession?
“We have to find a way to preserve the profession, preserve our dedication to public service, preserve ourselves under the third branch of government as part of the judiciary and not just another business.. .
“That’s the challenge: to keep our values and stay relevant.”
Richman said even if MDPs wind up being allowed and taking over a significant part of the practice, “I personally believe there’s always going to be a niche for small firms in specialty areas. I think it’s going to be very difficult for medium-size firms.”
There will be other challenges. Chief Justice Major B. Harding ticked off several.
“We will never have adequate resources to resolve all of the disputes that exist in society, and there has been a tendency over the past years for people to look to the courts to resolve those disputes,” he said. “I think the Bar and the courts need to look at alternative dispute resolution and explore the opportunities for expanding it on a consistent and better basis.
“The issue of technology for the next 50 years is going to be significant, not only in the management of law offices and the communications of ideas, information, briefs, opinions, and orders, but it’s going to have a significant impact on the evidence that’s going to be used in the courtroom. I think that the Bar is going to have to be alert to the advancements that technology will bring to the profession.”
While the economy is booming, it has been accompanied by a trend of a growing gap between the rich and poor, Harding noted. That will be part of the challenge of providing affordable legal services.
“Even now, aside from the indigent, people who fall into the middle class cannot afford attorneys and so we are going to have to face a significant issue of how we can make access to the courts for the average person more than just a high ideal in our constitution,” he said.
The Bar must also work to make sure that the diversity that has been growing in the profession and on the bench in recent years continues, he added.
Young Lawyers Division President Greg Coleman sees other challenges, some familiar and some not.
“First and foremost is lawyer regulation, to make sure that the bad lawyers are weeded out and sanctioned appropriately when their conduct doesn’t conform to our rules, or frankly, the spirit of our rules,” he said, adding continuing to promote ethics and professionalism is part of that.
“Second, there are member benefits and member relations; learning to do what we can to help our members whether it’s through Florida Lawyers Assistance, Inc., or the Law Office Management Assistance Service for small practitioners. We need to figure out what the members need and how the Bar can help them.
“Probably last, but not least important, is protecting lawyers’ interest at the Supreme Court level to protect against the attacks that are going on, trying to change the rules as well as in the legislature,” Coleman said.
Harding concluded, “I would really like for lawyers to remember in the next 50 years that they are not being trained only to advise clients and try lawsuits, but they are being trained to preserve a way of life that we have fought a civil war and two world wars and numerous other military skirmishes to protect. Our system of government and the role of the Bar and the courts in our system of government has been a significant factor in allowing us to go into the next millennium to live in a peaceful, free society.
“If lawyers lose sight of that fact, not only will the profession suffer, but our government will be at risk. This way of life under our Constitution has succeeded because ultimately the people have trusted the decisions made by the courts, and when that trust and confidence cease to exist, we will live in anarchy. Lawyers play a significant role in establishing and maintaining that trust.”
Gary Blankenship is an associate editor for The Florida Bar News .