Supreme Court of Florida
____________
No. SC14-1165
____________
IN RE: AMENDMENTS TO RULE REGULATING
THE FLORIDA BAR 1-7.3.
[July 9, 2015]
PER CURIAM.
Pursuant to Rule 1-12.1 of the Rules Regulating the Florida Bar (Bar
Rules),1 522 members in good standing with The Florida Bar (Petitioners) have
filed a petition asking the Court to amend Bar Rule 1-7.3(a) (Membership Fees;
Membership Fees Requirement) to authorize the Florida Bar Board of Governors
to increase annual Bar membership dues in order to provide additional funding to
The Legal Aid to the Poor Program of The Florida Bar Foundation.2 We wish to
commend Petitioners for bringing this important issue before the Court for
1. Bar Rule 1-12.1(f) provides: “Petitions to amend these Rules Regulating
The Florida Bar may be filed by the board of governors or by 50 members in good
standing.”
2. We have jurisdiction. See art. V, § 15, Fla. Const.
consideration—as Petitioners point out, the State of 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 our judicial system. However,
because we believe this issue requires further study and a more comprehensive
approach, we decline to adopt Petitioners’ proposed amendment at this time.
BACKGROUND
This Court has long recognized that an essential aspect of our common law
adversarial system of justice is the role of lawyers as advocates. Equally important
is the provision of legal representation to those who cannot afford it, in order to
ensure meaningful access to justice for all persons. The Court has stated:
Lawyers as advocates are essential to our common law
adversary system. An adversarial system of justice requires legal
representation on both sides in order for it to work properly. Without
adversaries, the system would not work. Consequently, the obligation
to represent the “defenseless and oppressed” is critical to our judicial
system if it is to work properly for all segments of our society.
In re Amends. to Rules Reg. Fla. Bar—1-3.1(a) & Rules of Jud. Admin.—2.065
(Legal Aid), 573 So. 2d 800, 804 (Fla. 1990); see also Fla. Bar In re Emergency
Delivery of Legal Services to the Poor (Mandatory Pro Bono), 432 So. 2d 39, 41
(Fla. 1983) (“There are people in need of legal services who are unable to pay for
those services. All persons, however, should have the opportunity of obtaining
effective legal services and should have meaningful access to the courts.”).
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In their petition in this case, Petitioners assert that Florida’s delivery of legal
services to the poor is in crisis. They allege that, in recent years, the number of
people in Florida living below the poverty line has increased. Legal aid
organizations across the state presently handle basic civil legal needs for many of
these low income and disadvantaged Floridians. However, Petitioners point out
some studies suggest that as much as 80 percent of the legal needs of the poor and
disadvantaged are not being met. At the same time, funding and resources for
legal aid have dropped dramatically. The Florida Bar Foundation projects a 34
percent decrease in funds available to allocate to legal aid organizations in the
coming year. See “Foundation Poised to Reduce Legal Aid Grants,” The Florida
Bar News, December 1, 2014, at 1. This decrease in funding is expected to result
in cuts to legal aid staff and resources.
The Florida Bar has in the past taken a leading role in providing a regular
source of funding for legal aid services. In 1978, on a petition filed by the Florida
Bar Board of Governors, this Court adopted the nation’s first Interest on Trust
Account (IOTA) program. See In re Interest on Trust Accounts, A Petition of the
Fla. Bar, 356 So. 2d 799 (Fla. 1978). Through this program, the Court authorized
attorneys, on a voluntary basis, to invest client funds in interest-bearing accounts.
The earnings from these accounts are paid to The Florida Bar Foundation to,
among other things, provide legal aid to the poor. Id. at 805, 807. In 1989, the
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Court issued a decision making participation in the IOTA program mandatory. See
Matter of Interest on Trust Accounts: A Petition to Amend the Rules Reg. Fla. Bar,
538 So. 2d 448 (Fla. 1989). The Court directed that all client funds “which are
nominal or to be held for a short period of time” must be placed in an interest-
bearing account, and the interest accrued from such accounts is provided to The
Florida Bar Foundation to fund programs designed to improve the administration
of justice and expand the delivery of legal services to the poor. Id. at 453.
Since these decisions, the IOTA program has continued to provide an
important and substantial source of funding for legal aid organizations. However,
as Petitioners point out, historic low interest rates have caused revenue from the
IOTA program to fall dramatically. As a result, the Foundation is facing the
exhaustion of its reserve funds this year. See “Foundation Poised to Reduce Legal
Aid Grants,” The Florida Bar News, December 1, 2014, at 1. Although many
attorneys in Florida already generously donate their time and money to assist legal
aid organizations, these contributions are not sufficient to fill the loss in funding.
We agree with Petitioners that there is an urgent need to develop new solutions and
sustainable sources of funding for legal aid.
PROPOSED AMENDMENT
Petitioners urge the Court to amend Rule Regulating the Florida 1-7.3(a)
(Membership Fees; Membership Fees Requirement) to add new language
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providing that the Board of Governors “may increase the membership fees by $100
per annum provided any increase in the membership fees set by the board of
governors shall be used as additional funding for the Legal Aid to the Poor
Program of The Florida Bar Foundation.” Petitioners maintain that their proposed
amendment does not directly impose a $100 increase in dues; rather, they
emphasize that the proposal would give the Board of Governors discretion to
increase dues by no more than $100.
After the petition was filed, the Court published the proposal in The Florida
Bar News for comment. Several organizations and members of the Bar filed
comments, including The Florida Bar. While some of the commenters support
Petitioners’ proposal, we received a number of comments opposed to the
amendment. Among those in opposition is The Florida Bar. The Bar raises
several concerns. It contends: the proposal does not address the more global
societal issue of how legal services will be provided to indigent persons; it requires
only lawyers to pay for a societal issue; the proposed amendment does not address
or suggest improvements in the delivery of legal aid services; Petitioners have not
taken into account the donations of time and money already being made by Bar
members; the proposal would essentially require all active members to make a
non-voluntary contribution to the Florida Bar Foundation’s Legal Aid program; the
proposed amendment does not provide exemptions for judges or government
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attorneys; it may require the Bar to request another rule amendment in the future
when additional funds are needed for its own operating expenses; and finally, the
proposed amendment may add additional administrative expenses associated with
the Bar’s collection and transmittal of funds to The Florida Bar Foundation.
We have thoroughly considered the proposal, and the comments in support
and in opposition. We have also considered the issues discussed at oral argument.
Although we agree with Petitioners that the members of The Florida Bar should
take an active role in supporting legal aid organizations, we conclude that the
proposal before us does not present the type of comprehensive solution that is
needed to address the crisis in funding for legal aid.
At oral argument, all parties generally agreed that current sources of funding
for legal aid are not sufficient to meet the growing need for such services. Indeed,
the Bar stated at the oral argument that “access to essential legal services is a
critical element of a democratic and just society” and that there is a “great need”
for new solutions to ensure access to legal representation and other legal resources
for all persons. However, the parties also generally acknowledged that Petitioners’
proposal is not a “permanent fix.” We think a more encompassing approach can be
developed through the work of the newly established Florida Commission on
Access to Civil Justice (Commission). In November 2014, Chief Justice Labarga
established the Commission by Administrative Order to “study the remaining
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unmet civil legal needs of disadvantaged, low income, and moderate income
Floridians.” In re Florida Commission on Access to Civil Justice, Fla. Admin.
Order AOSC14-65 at 3 (November 24, 2014). Members of the Commission
include leaders from the executive, legislative, and judicial branches of our state
government, as well as The Florida Bar, The Florida Bar Foundation, various civil
legal aid organizations, and the business community. The Commission is tasked
to, among other things, “[i]dentify and examine barriers that impede access to civil
justice”; determine how best to “promote coordination of legal services delivery to
low income Floridians”; examine ways that technology may impact access to
justice for disadvantaged, low and moderate income individuals; and examine how
available resources might be effectively maximized and used to provide stable
funding for legal aid services. Id. at 4-5. The Commission’s work will provide
studied and comprehensive recommendations to improve access to justice in this
state. While Petitioners’ proposal here warrants consideration, along with other
possible solutions to the funding crisis, adopting any one approach to the problem
at this stage would be premature. Accordingly, we do not adopt Petitioners’
proposed amendment at this time.
In the interim, however, we strongly encourage lawyers in Florida to meet
their ethical obligation to provide legal services to the poor and disadvantaged.
Rule Regulating the Florida Bar 4-6.1 (Pro Bono Public Service) provides that
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every member of the Bar, with the exception of certain specific groups of lawyers,
should render pro bono legal services and participate in pro bono activities.
Alternatively, Bar members are encouraged to make a donation of $350 to a legal
aid organization. In adopting rule 4-6.1, we stated that the rule was intended to
“assist each lawyer in Florida in fulfilling the commitment a lawyer makes upon
taking the oath to become an officer of the court: ‘I will never reject from any
consideration personal to myself the cause of the defenseless or oppressed.’ ”
Amends. to Rules Reg. Fla. Bar—1-3.1(a) & Rules of Jud. Admin.—2.065 (Legal
Aid), 630 So. 2d 501, 502 (Fla. 1993). Here, we emphasize again that “[j]ustice is
not truly justice if only the rich can afford counsel and gain access to the courts,”
and that members of the Bar should strive to donate their legal services to those
who cannot afford them. Id. As Petitioners have made clear, legal aid
organizations rely on members’ donations of time and money to effectively meet
the legal needs of the low income and disadvantaged, and such services are
essential to helping ensure meaningful access to courts.
CONCLUSION
Although we decline to adopt their proposal at this time, we wish to thank
Petitioners for bringing this important issue before the Court for consideration, and
we commend their altruism in recommending an increase in Bar dues to support
legal aid organizations. The petition in this case brought to the forefront a
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significant and critical issue affecting access to justice in our state. We believe a
continuing discussion as to the best methods to fund legal aid programs, together
with the work of the Florida Commission on Access to Civil Justice, will serve to
strengthen equal access to our judicial system.
It is so ordered.
LABARGA, C.J., and PARIENTE, CANADY, and POLSTON, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., concurs.
LEWIS, J., dissents with an opinion.
QUINCE, J., dissents with an opinion, in which PERRY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur in the majority’s decision to deny the petition at this time. I write
separately to explain my reasoning for doing so and to emphasize the critical role
of The Florida Bar in solving the current legal aid crisis.
I.
Access to justice for all Floridians is fundamental to our legal system and
our state. Indeed, it is a fundamental constitutional right.3 For years, this Court
has been on the forefront of efforts to promote equal access to justice, and we must
3. Article I, section 21, of the Florida Constitution, provides: “The courts
shall be open to every person for redress of any injury, and justice shall be
administered without sale, denial or delay.”
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continue to ensure—as our Chief Justice has rightly prioritized—that we provide
leadership on this issue.
I commend the Chief Justice for the creation of the Florida Commission on
Access to Civil Justice and his laudable efforts to bring the governmental and
business communities together to consider holistic solutions regarding the access
to justice issue, in order to assist all individuals for whom legal services have
become unaffordable. But the important work of that Commission is not, standing
alone, the reason I join the majority in rejecting this proposal.
A.
I agree with the majority’s decision to deny the petition because the petition
does not require The Florida Bar to raise the annual membership fee, and the Bar
has steadfastly opposed the approach suggested by the Petitioners. In fact, if
granting this petition would mandate that the Bar make the assessment of $100, I
would join Justice Quince’s dissent that recognizes the necessary role of lawyers in
doing their part to solve this societal problem. While there is no one solution,
dedicating additional funding to legal aid from the annual dues would be one step
the legal community could take now to further its unique commitment to this
cause—and to the many Floridians who are affected every day by the current
crisis.
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But however well-motivated those lawyers who have filed this petition, the
petition does not currently ask this Court to mandate that the Bar assess each
member up to $100 to dedicate to funding legal aid. As counsel for the Petitioners
conceded during oral argument, even if this Court were to grant the petition, “no
fees will be increased.” Oral Argument at 01:08, In re Amends. to Rule Reg. Fla.
Bar 1-7.3, No. SC14-1165, available at http://wfsu.org/gavel2gavel/viewcase.php?
eid=2200 (Dec. 2, 2014).
This is because the Bar’s leadership and its Board of Governors have
unanimously stated that they would not vote to assess each Bar member any
additional fee. In addition, and an issue in need of resolution prior to any decision
to grant the petition, the Bar has raised concerns as part of its opposition that the
manner in which the fee would be assessed could constitute an improper tax. For
these reasons, I must join the majority in denying the petition at this time.
B.
In concurring, however, I urge that the Bar work with the Petitioners to
devise some alternative, creative solutions to the immediate crisis while the
Commission on Access to Civil Justice undertakes its analysis and recommends
long-term solutions to address this issue in a comprehensive way. As the
Petitioners stated at oral argument, this petition “provides a point of discussion”
and brings this issue to the forefront of “the Bar’s radar.” Id. at 43:55-44:15. I
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certainly agree that it belongs there as a “first priority” and that these discussions
are necessary to solving the crisis. Id at 44:30.
The denial of this petition neither prevents the Bar from increasing the
annual fee and allocating a portion of the increased fee to support legal aid, nor
suggests that such an approach ultimately may not be part of the cure to the legal
aid crisis. Florida’s annual Bar membership fee has not been increased since 2001
and remains comparably low relative to many other states around the country.4
The Bar has now recognized that the provision of legal services to low- and
middle-income Floridians is a societal concern and that lawyers have a special
obligation to fund and support legal aid services. Certainly, this provides much
common ground upon which some of our legal community’s leaders could come
together. Both the efforts of the Bar—working in tandem with the Petitioners—
and the efforts of the Commission are necessary to look at immediate funding
alternatives for a more permanent fix. Nothing in the majority’s opinion suggests
otherwise. In my view, the Bar and all lawyers in this state should, in the
4. California, for example, requires active Bar members to pay an annual
fee of $430, as compared to Florida’s current $265 fee. See Rules of State Bar of
Cal., App. A: Schedule of Charges & Deadlines (2015). Although fees vary
nationwide, at least three states—Alaska, New Hampshire, and Oregon—have fees
upwards of $500 yearly, which is nearly double the amount paid by Florida
lawyers.
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meantime, continue to do their part through pro bono representation and monetary
contributions to legal aid.
II.
Although addressing the current crisis will require broad-based solutions, the
pivotal role of The Florida Bar cannot be understated. From the time of forming
an integrated bar in 1949—that is, one that compelled membership for all attorneys
licensed in Florida—this Court has emphasized the unique role of lawyers in
society. See Petition of Fla. State Bar Ass’n, 40 So. 2d 902, 908-09 (Fla. 1949).
At that time, there were only 2,700 lawyers in Florida and the proposed
annual dues were a mere $5.00. Id. at 903-04. Of the 2,700 lawyers, 1,631
returned ballots on the question of bar integration, with 1,131 in favor and 500
against. Id. at 904. In addition to determining whether integration would “best
serve the interest of the bar and the public,” one of the issues to be decided was
whether this Court had the “power to require the payment of a membership fee as
an incident to its power to integrate.” Id.
In granting the petition, this Court observed that “the bar has a responsibility
to the public that is unique and different in degree from that exacted of the
members of other professions.” Id. at 908. From the very beginning, the Oath of
Attorney taken by every individual admitted to practice law in Florida has required
each lawyer to affirm that he or she “will never reject, from any consideration
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personal to myself, the cause of the defenseless or oppressed, or delay any person’s
cause for lucre or malice.” In re Amends. to Rules Reg. Fla. Bar—1-3.1(a) &
Rules of Jud. Admin.—2.065 (Legal Aid), 573 So. 2d 800, 803 (Fla. 1990)
(emphasis omitted) (quoting Rules Relating to Ethics Governing Bench and Bar,
145 Fla. 763, 797 (1941)). “This provision identifies one of the specific public
responsibilities lawyers have as officers of the court.” Id.
In 1978, the initial step was taken regarding institutionalizing the manner in
which the Bar could assist in ensuring those obligations when this Court authorized
the first-of-its-kind rule creating Interest on Trust Accounts (IOTA), see Petition re
Interest on Trust Accounts, 356 So. 2d 799 (Fla. 1978), which became the
backbone in the ensuing decades of funding legal services for the poor, legal
services for children, and innovative programs for improving the administration of
justice. While that program began as voluntary, upon petition of concerned
members of the Bar, IOTA became mandatory in 1989. Matter of Interest on Trust
Accounts: Petition to Amend Rules Reg. Fla. Bar, 538 So. 2d 448, 451 (Fla. 1989).
During that same time period, a petition was filed by members of the Bar to
mandate that lawyers provide twenty-five hours of free legal service to the poor or,
in the alternative, donate $500 to the Florida Bar Foundation. In re Emergency
Delivery of Legal Services to the Poor (Mandatory Pro Bono), 432 So. 2d 39, 40
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(Fla. 1983). This Court explained that the “request ha[d] been prompted, in part,
by recent federal budget cuts in funding for legal services programs.” Id.
This Court rejected the proposal, but not without acknowledging the “unique
position” that lawyers occupy in our society. Id. While we recognized that
lawyers have a responsibility to render legal services to the poor, we also stated
that the obligation to assure that “effective legal services are available to all is not
the sole responsibility of lawyers but is one to be shared by the government and
society.” Id. at 41 n.1. We noted, however, the then-existing Ethical
Considerations within the Code of Professional Responsibility:
There are people in need of legal services who are unable to pay
for those services. All persons, however, should have the opportunity
of obtaining effective legal services and should have meaningful
access to the courts. The legal profession and this Court have
recognized that fact in Ethical Consideration 2-25, Code of
Professional Responsibility:
Historically, the need for legal services of those unable to
pay reasonable fees has been met in part by lawyers who
donated their services or accepted court appointments on
behalf of such individuals. The basic responsibility for
providing legal services for those unable to pay
ultimately rests upon the individual lawyer, and personal
involvement in the problems of the disadvantaged can be
one of the most rewarding experiences in the life of a
lawyer. Every lawyer, regardless of professional
prominence or professional workload, should find time to
participate in serving the disadvantaged. The rendition of
free legal services to those unable to pay reasonable fees
continues to be an obligation of each lawyer, but the
efforts of individual lawyers are often not enough to meet
the need. Thus it has been necessary for the profession to
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institute additional programs to provide legal services.
Accordingly, legal aid offices, lawyer referral services,
and other related programs have been developed, and
others will be developed, by the profession. Every
lawyer should support all proper efforts to meet this need
for legal services.
The responsibility of lawyers in this area is repeated in Ethical
Consideration 8-3, Code of Professional Responsibility:
The fair administration of justice requires the availability
of competent lawyers. Members of the public should be
educated to recognize the existence of legal problems and
the resultant need for legal services, and should be
provided methods for intelligent selection of counsel.
Those persons unable to pay for legal services should be
provided needed services.
The message to lawyers is thus plainly stated.
Id. at 41.
Although that petition to require mandatory pro bono services was
ultimately rejected, this Court in 1991 once again considered the issue of access to
justice and the obligation of Florida lawyers to represent the poor when called
upon by the court. In re Amends. to Rules Reg. Fla. Bar, 573 So. 2d at 801. That
effort was, like the others before it, led by individual prominent members of the
Bar—some of whom, such as Talbot D’Alemberte, have been on the forefront of
bringing this issue to the attention of this Court from the inception of the integrated
bar through the present. While deferring action on the requirement that each
judicial circuit develop a plan to address the legal needs of low-income individuals,
we appointed a Joint Access Commission to further address the pressing issue. But
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we were unwavering in our commitment to ensuring that all citizens have access to
the court system, including the ability to seek legal services:
The poor’s access to the legal system is an important factor that
the commission will address. In order for this justice system to
maintain credibility, we realize that it must be available and
affordable to all segments of society. Availability, not only for the
poor, but also for those with limited funds, is another problem that
merits the commission’s consideration. This Court and The Florida
Bar have regularly adopted programs to improve the accessibility of
our judicial system. These include simplified proceedings in small
claims court, probate, and dissolution of marriage matters; the
development of simplified forms for a litigant’s pro se use; the
establishment of citizen dispute settlement centers; and the recent
implementation of mediation and arbitration programs designed to
resolve disputes in an efficient and economical manner. This Court
has repeatedly recognized its responsibility to assure access to the
courts. We await the commission’s recommendation before
addressing petitioners’ suggestions on how to best meet the needs of
the poor. We request that the commission file its report by February
1, 1991.
In conclusion, Thomas Jefferson once said: “There is a debt of
service due from every man to his country proportioned to the
bounties which nature and fortune have measured to him.” The
lawyers of this state have recognized that they have a debt of service
to the poor in the oath each took upon becoming a member of the
legal profession and an officer of the courts. This important
commitment assures a justice system for all. We acknowledge our
responsibility to provide the necessary leadership to accomplish that
goal.
Id. at 806-07 (emphasis supplied) (footnote omitted).
Two years later, when the Joint Access Commission’s report came back to
this Court, we recounted the key findings:
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In this report, the Commission states that the “[c]ritical legal
needs of the poor generally and of groups with special legal needs
such as children, institutionalized persons, and migrant farm workers
are not being met with present resources and will not be met with the
presently anticipated increase in resources.” The Commission
“concludes that only approximately twenty percent of the legal needs
of the poor are being addressed.” In its thorough and detailed report,
the Commission made thirty-one recommendations. . . .
In summary, recommendation No. 24: (a) describes a range of
activities for volunteer lawyers; (b) suggests a minimum for each
attorney of twenty hours of voluntary pro bono legal services, which
can be collectively met under certain circumstances, or an alternative
contribution to legal services of $350; (c) narrowly defines pro bono
services to assure availability of legal services to the poor; (d)
suggests that these services be developed and controlled by local
community entities; (e) suggests that all lawyers be included in the
plan to the extent legally and practically feasible; (f) suggests
additional resources to support the plan; (g) describes a means to
determine accountability of lawyer participation; and (h) suggests an
evaluation and review of the effectiveness of this plan after two years.
The Board of Governors of The Florida Bar has endorsed the
Commission’s voluntary pro bono plan and urges its adoption with
certain modifications. These modifications include: (1) eliminating
the collective satisfaction of the twenty-hour requirement; (2)
expanding the definition of pro bono services to include services to
the poor which are not strictly legal in nature; and (3) eliminating the
reporting requirement, primarily because of administrative costs.
The original petitioners generally approve the Commission’s
plan; however, they suggest that: (1) standards for pro bono services
should be increased to fifty hours; (2) in lieu of the alternative
payment of $350, an hourly rate of thirty dollars for all hours not
performed should be charged; and (3) rather than having the chief
judge of each circuit file his or her report with The Florida Bar, the
reports should be filed with the Supreme Court, with The Florida Bar
having an opportunity to file commentary. In response to The Florida
Bar’s suggestion that reporting not be required, Petitioners believe
“the reporting requirement lies at the heart of this joint commission
proposal” and state that the Commission’s suggested format is
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reasonable and should be implemented. Petitioners emphasize that the
automatic review aspect of the report is important to allow the Court
to directly assess the availability of legal services to the poor after this
plan has been implemented. Similarly, the Projects Directors’
Association, representing Legal Services Offices, recommends forty-
eight hours per year as the pro bono standard and a thirty-dollar-per-
hour opt-out provision.
Other responses oppose the Commission’s recommendations.
Professor Joseph Little asserts that the Commission’s report includes
no study designed to make a defensible investigation of the true
dimensions of unmet legal needs of the poor; that the $350 opt-out
plan is unconstitutional because it would be a tax; and that the
judiciary should not be the chief planner and implementer in
providing a legal services program. Harvey M. Alper objects to any
activity by the Court in this particular area and asserts that charity by
definition cannot be compelled and that the adoption of this plan will
destroy more than it will generate in services to the poor. Jerry A.
DeVane believes that the proposed minimum standards of voluntary
pro bono service make such service mandatory. He also objects to
lawyers being able to collectively satisfy their pro bono requirement.
Henry Trawick asserts that the Commission’s report is based on
assumption, hearsay, and inadequate investigation, and that this Court
is not vested with jurisdiction to provide for the general welfare.
In re Amends. to Rules Reg. Fla. Bar 1-3.1(a) & Rules of Jud. Admin. 2.065
(Legal Aid), 598 So. 2d 41, 41-42 (Fla. 1992). The diversity of views is striking,
particularly because some of the same views, from some of the same people, still
endure over two decades later.
This Court ultimately rejected the call for the mandatory obligation to
provide legal aid services or to contribute $350, over the dissent of Justices Barkett
and Kogan. Id. at 44. For his part, Justice Kogan eloquently observed:
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In a very real sense, the present case involves many more
people than just the privileged group of lawyers, legal scholars, and
Bar officers who actually prepared and argued this cause. The people
most seriously affected by this Court’s actions today are precisely the
ones who were not present—the people who can least afford an
attorney and thus can ill afford to appear before us to argue their side
of this issue. These are the people that, because of the economic
realities of our legal system, effectively have been excluded from the
same level of legal services available to the more affluent residents of
Florida.
These dispossessed people are everywhere in our society. They
include the abused, neglected, or abandoned children who too often
become mere pawns of a legal process they certainly lack the skills to
comprehend. They include the divorcing wife systematically denied a
voice in a legal system that too often favors the divorcing husband’s
interests, because he too often is the one who holds the purse strings.
They include the impoverished minorities unable to find legal
representation because they are unable to pay even the most minimal
fees charged by lawyers. They include the elderly on fixed incomes
who cannot afford the cost of the legal services they need—even
simple services such as planning for illness or drafting a will. The
dispossessed include the mentally and physically disabled, whose
conditions often have stripped them of the wherewithal necessary to
obtain legal advice.
Id. at 56 (Kogan, J., concurring in part and dissenting in part) (footnotes omitted).
And, as Justice Barkett opined in advocating for mandatory pro bono services:
[T]he requirements of pro bono services derive from the status of
lawyers as officers of the court and from the exclusive nature of the
franchise they hold. I do not perceive the requirement as deriving
from a moral obligation to “do good.” As much as I would like to
harness the tremendous energy and resources of lawyers—
individually and collectively—to address the social and economic ills
of this country, I do not believe that can be mandated. I do believe,
however, for all the reasons so eloquently stated by Justice Kogan,
that mandating legal representation for the indigent in order to assure
meaningful access to the courts can and should be.
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Id. at 55 (Barkett, J., concurring in part and dissenting in part).
In 1993, though still not mandating pro bono hours, this Court finally
adopted the requirement that there be mandatory reporting of pro bono services
and contributions, reasoning:
The authority and responsibility of this Court to adopt rules on
the issue of pro bono legal services to the poor under our
constitutional rule-making and administrative authority has been fully
addressed in prior opinions. We need not readdress that issue here.
We do reiterate, however, that this Court, as the administrative head
of the judicial branch, has the responsibility to ensure that access to
the courts is provided for all segments of our society. Given the
number of reports presented to this Court that document the legal
needs of the poor, we find it necessary to implement the attached
rules. Justice is not truly justice if only the rich can afford counsel
and gain access to the courts. Consequently, these rules are being
implemented in the hopes that they will act as a motivating force for
the provision of legal services to the poor by the members of this
state’s legal profession.
Amends. to Rules Reg. Fla. Bar—1-3.1(a) & Rules of Jud. Admin. 2.065 (Legal
Aid), 630 So. 2d 501, 502 (Fla. 1993) (footnotes omitted). We explained the need
for this mandatory reporting requirement as follows:
[W]e do expect members of the Bar, through the simplified report
form that will be made a part of the annual dues statement, to report
how they have assisted in addressing the legal needs of the poor. We
believe that accurate reporting is essential for evaluating this program
and for determining what services are being provided under the
program. This, in turn, will allow us to determine the areas in which
the legal needs of the poor are or are not being met. Because we find
that reporting is essential, failure to report will constitute an offense
subject to discipline.
Id. at 502-03.
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Since 1993, no further steps have been taken by the Bar to increase the
amount of pro bono hours or to consider the imposition of any other mandatory
obligations. Instead, in 1997, the Bar actually petitioned this Court to eliminate the
mandatory annual reporting requirement, arguing that even that obligation should
be voluntary. We rejected the Bar’s petition:
As the opponents of the amendment point out, there have been
no fundamental changes in the circumstances surrounding this issue
since the Court first determined that accurate reporting is essential for
evaluating the delivery of legal services to the poor and for
determining where such services are not being provided. There is no
more effective way to gauge the success of lawyers in meeting their
obligation to represent the poor—an obligation every member of the
Bar swears to undertake.
Lawyers have been granted a special boon by the State of
Florida—they in effect have a monopoly on the public justice system.
In return, lawyers are ethically bound to help the State’s poor gain
access to that system. The mandatory reporting requirement is
essential to guaranteeing that lawyers do their part to provide equal
justice.
Amends. to Rule 4-6.1 of Rules Reg. Fla. Bar—Pro Bono Pub. Serv., 696 So. 2d
734, 735 (Fla. 1997).
That brings us to today, almost two decades later, when once again the issue
has been presented to this Court through a petition filed by exemplary members of
The Florida Bar, rather than by the Bar itself, which opposes any increase in the
annual dues to fund legal aid services. But as the history of this issue
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demonstrates, going forward, it is essential that the Bar play a leading role in
solving the current crisis.
As this Court has previously noted, “this is not a problem with a simple
solution,” but “a solution is necessary if our justice system is to be accessible for
all segments of society.” In re Amends. to Rules Reg. Fla. Bar, 598 So. 2d at 42.
Because of “the unique and important role” lawyers play “in protecting individual
rights,” id., the Bar must work diligently to ensure that equal access to justice is a
reality for all Floridians, rather than simply an aspiration.
III.
In conclusion, 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. 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, as advocated by Justices Barkett and Kogan.
While I am aware that the Bar has extended loan guarantees to the Florida
Bar Foundation, I am confident that there are additional creative solutions to
ensure that the valued employees of legal aid organizations can continue their work
and that the bleeding of these essential services does not continue unabated. We
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can and we must do more—now. Finally, I once again thank our Chief Justice for
being on the front lines of providing the necessary leadership, never missing an
opportunity to advocate and promote public awareness of this critical issue.
LABARGA, C.J., concurs.
LEWIS, J., dissenting.
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. I fully agree that the lawyers of this State cannot and
should not be required to be the group of individuals solely and exclusively
responsible for the monetary needs or programs necessary to provide access to
justice for all Florida citizens. The petition we consider today does not seek such a
result and was never designed or intended 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.
This Court, rather than understanding that the current crisis is multi-layered
and will probably require a number of different alternatives and approaches, rejects
and disallows this tool and the help and safety net it could provide for a stated
unknown and theoretical “more encompassing approach.” This philosophy of
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refusing the availability of this non-mandatory limited tool because it does not
guarantee to solve all problems immediately at one time is both misdirected and
puzzling. The access to justice issue in Florida is as wide and deep as the social
and economic inequalities within which our society operates. In my view, at least
one element absolutely essential to any attempted solution will include access to
and the availability of competent counsel to provide legal representation. Directly
associated with this element will be support resources to deal with both the
complexities and expenses associated with legal matters. There must be ways to
fund these needs if we are to move forward. A state-wide, highly structured, and
strictly enforced mandatory pro bono program similar to several existing local
programs may eliminate the need for some direct-attorney costs, but the associated
support costs and expenses of such efforts will still need funding. Using a military
metaphor, equal access to justice will require the “boots of lawyers on the ground”
and in the trenches to cause “equal access” to become a reality. 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. 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
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know with certainty that no Floridian can ever be assisted through the proposed
supplementary tool that has been crushed today.
The excuse proffered by some to reject the authorization to create a possible
funding mechanism is based on the distinction that the authorization is not
mandatory because The Florida Bar opposes the concept. This faulty reasoning
overlooks that the leadership of The Florida Bar changes annually and the Board of
Governors changes from time to time. This rejection simply ensures that should a
Florida Bar program be desired in the future, we will need to repeat this process
with its delays again.
Committees and commissions may perform outstanding services and easily
solve every problem and issue which adversely impacts access to justice and
remedy all ills with a single approach. If that is so, the authorization sought today
would not harm or interfere with that total resolution. If that is not so, or a solution
requires many years and many facets, we have simply delayed help. I cannot
subscribe to a theory that we authorize nothing unless we can resolve all. This
reminds me of the story of the lawyer who traveled to the nursing home with the
absolute best intentions of assisting the disabled and infirm. Upon his return home,
inquiry was made as to how he had assisted the infirm that day. The lawyer
responded that so many of those in the nursing home needed soft shoes and a
comfortable chair that he did not have the resources to provide soft shoes and
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comfortable chairs for all, so he simply provided none. His family replied with
great disappointment that the solution to many large problems may begin in the
purchase of a single pair of soft shoes and a single comfortable chair.
I am part of the disappointed Court family who believes that one positive
step at a time and one authorization at a time is far better than waiting until
committees and commissions make recommendations that may or may not be
fulfilled.
QUINCE, J., dissenting.
While I do not believe that lawyers should be solely responsible for
providing the monetary assistance to help the poor and the middle class have
access to our courts, I do believe that it is a part of our responsibility as lawyers to
assist in this 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. 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. See
art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of
any injury, and justice shall be administered without sale, denial or delay.”).
Therefore, I would authorize The Florida Bar to require lawyers to pay up to $100
a year with their Florida Bar renewal.
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PERRY, J., concurs.
Original Proceeding – Rules Regulating The Florida Bar
Raoul G. Cantero, III of White & Case LLP, Miami, Florida,
for Petitioners
Charles Edward Berk of Charles E. Berk, P.A., Ocala, Florida; Paul Stephen
Cherry, Sarasota, Florida; Charles Malouf Samaha, Saint Petersburg, Florida;
William W. Fernandez, Winter Springs, Florida; Henry P. Trawick, Jr., Sarasota,
Florida; Patrick Christopher Crotty of The Law Office of Scott D. Owens,
Hallandale, Florida; Austyn Wayne Sanders, Miami, Florida; Paul C. Doyle,
Jacksonville, Florida; Anne Lisa Swerlick, Tallahassee, Florida; John F. Harkness,
Jr., Executive Director, Gregory W. Coleman, President, and Ramón A. Abadin,
President-elect, The Florida Bar, Tallahassee, Florida; Patience Denise Burke,
Tallahassee, Florida; James Anthony Kowalski, Jr., 2014-2015 President, Project
Directors Association, Jacksonville, Florida; Robert T. Strain, Saint Petersburg,
Florida; and Barry Scott Richard of Greenberg Traurig, P.A., Tallahassee, Florida;
Responding with Comments
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