MEMORANDUM OF LAW IN SUPPORT OF PROPOSED AMENDMENTS TO SECTIONS 932.61, 932.66 and 38.23 FLORIDA STATUTES
I. The Florida Bar and the Supreme Court of Florida Create an Appearance of
Impropriety in Investigating, Prosecuting and Adjudicating Unlicensed Practice of Law
Allegedly Committed by Non- Members of The Florida Bar.
The Court has relied on its interpretation of Article V, Section 15 of the Florida
Constitution for its jurisdiction over and authority to punish those accused of the
unlicensed practice of law. State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.
1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d
428 (1963); see also, The Florida Bar v. Flowers, 320 So.2d 809 (Fla. 1975). Article
V, Section 15 provides:
The supreme court shall have exclusive jurisdiction to
regulate the admission of persons to the practice of law
and the discipline of persons admitted.
The Court's interpretation of this provision should be examined. A plain
reading of the constitutional provision does not support the interpretation which the
Supreme Court of Florida relies on for jurisdiction in unlicensed practice of law cases
involving persons not members of The Florida Bar.
The Court has chosen to exercise jurisdiction over the unlicensed practice of
law under the rationales that the public needs protection from those who would hold
themselves out as attorneys. See The Florida Bar v. Moses, 380 So.2d 412 (Fla.
1980). This need to protect the public can be satisfied alternatively by the normal
method of prosecuting criminal behavior in the state through proceedings instituted
by the State Attorney's Office. By enacting Section 454.23, Florida Statutes, the
legislature has provided the means by which the State Attorney's Office can charge
an individual with "unlicensed practice of law," a misdemeanor of the first degree.
However, should the Court adhere to the interpretation of the constitutional provision
conferring exclusive jurisdiction to regulate and discipline the unlicensed practice of
law in the supreme court, then the legislature was without authority to enact the
misdemeanor offense proscribing this conduct. Assuming that Section 454.23 F.S.
is valid, the State Attorney's Office has the means to protect the public from those
who engage in any other type of criminal behavior. Therefore, it is not a public
necessity for the Court to act as the court of first impression for unlicensed practice
of law cases.
It would be better public policy to leave the prosecution of unlicensed practice
of law to the various State Attorneys where the object of the prosecution is to protect
the public from harm. A problem of perception arises with the Court prosecuting
unlicensed practice of law violators by civil injunction or contempt. The problem is
analogous to the problem, discussed in Young v. United States Ex rel. Vuitton Et Fils
S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), that arises when one
party to a civil action is allowed to prosecute the other party for criminal contempt.
Here, the Court seems to be an interested party to the civil action as much as is The
Florida Bar. The Court has an interest in preserving its constitutional jurisdiction over
those licensed to practice law. The unlicensed practice of law is a direct affront to
the Court's exclusive jurisdiction--the Court is in a sense "the victim" when a person
not licensed to practice law does so. The punishment of violators by the Court for
a crime that so directly affects the Court's exclusive jurisdiction creates an
appearance of impropriety in the same way that appointment of an interested
prosecutor 'creates an appearance of impropriety that diminishes faith in the fairness
of the criminal justice system in general." Young, 481 U.S. at 811, 107 S.Ct. at
2139.
Indirect criminal contempt proceedings (the next level of escalation after the
civil injunction) "are not intended to punish conduct proscribed as harmful by the
general criminal laws. Rather, they are designed to serve the limited purpose of
vindicating the authority of the Court. In punishing contempt, the Judiciary is
sanctioning conduct that violates specific duties imposed by the court itself, arising
directly from the parties' participation in judicial proceedings." Young, supra at 2134.
As stated in the above quoted passage from Young, contempt should not be used to
remedy conduct proscribed as harmful by the general criminal laws. Rather, such
power of the court should be used to serve the limited purpose of vindicating the
authority of the court. In his dissent in Walker v. Bentley, 660 So.2d 313 (Fla. 2d
DCA 1995), Judge Altenbernd makes a case for the avoidance of the use of indirect
criminal contempt when the legislature has provided an alternative criminal remedy:
[T]he judicial concept of indirect criminal contempt overlaps
with legislative and executive functions. Indirect criminal
contempt allows a judge considerable flexibility in deciding
the elements of an offense against a victim for acts
occurring outside the presence of the judge. The judge
also determines who should be prosecuted, and then tries,
convicts, and punishes. I do not suggest that this
combination of legislative, executive, and judicial functions
is prohibited by article II, section 3, of the Florida
Constitution. See Johnson, 345 So.2d 1069. Never-
the less, if separation of powers is intended to discourage
a concentration of power in one branch, this political
doctrine should discourage the avoidable use of indirect
criminal contempt when the legislature provides alternative
criminal and civil remedies. See Edward M. Dangel,
Contempt, Sec. 42A (1939).
While the Florida State Bar Association (as the lawyers' trade association was
named at that time) actively sought to motivate its brethren into action against
activities of non-lawyers, it also sought to invoke the Court's rule-making powers to
provide a formalized means of enforcing the prohibition on UPL. In Petition of Florida
State Bar Ass'n, 186 So. 280 (Fla. 1938), the Bar petitioned for adoption of a rule
which would have provided a limited form of registration of "active" lawyers, i.e.,
those officially registered and licensed to practice. The Court construed that portion
of the petition as an effort to prevent the unauthorized practice of law. Id., at 284.
The Court declined to adopt the proposed rule, noting that under the provisions of
Florida's Constitution, an ample remedy already existed to prevent such unauthorized
practice. Id., at 289-90. The Court further noted that it did not have a concrete case
before it, and thus, had insufficient facts to allow it to properly devise such a rule.
Id., citing, Rhode Island Bar Association v. Automobile Service Association, 255 R.I.
122, 179 Atl. 139 (1935).
In Rhode Island, the Supreme Court of Rhode Island found that while it had the
power to punish UPL as contempt, such a procedure would only be invoked where
there is an evident need for summary action in order to protect the public. Id. As
one commentator on the subject noted:
Criminal contempt is a summary proceeding and,
as such, dangerous. Where a statute makes the
unauthorized practice of law a crime ...
summary action is merely an alternative
method, the results of which might be unjust
when compared with the ordinary protection
afforded in the criminal process. (Emphasis
added)
Attorney and Client - Unauthorized Practice, 6 Miami L.Q. 607, 609 (1952).
The principle that such power should be used sparingly must be considered for
another reason. When the Court exercises this power, whether by civil injunction or
order of indirect criminal contempt, the defendant is deprived of his/her appellate
rights. Therefore, such power should not be exercised except in extreme or dire
cases and to do otherwise constitutes abuse of power which also usurps the authority
of the Executive and Legislative Branches.
Given the procedural difficulties with the Supreme Court of Florida holding trial-
like proceedings, and given the perception that the Court maintains an interest in the
outcome of these cases, the Court should abstain from its law enforcement activities and
disband its badge-carrying UPL police.
One must realize that members of The Florida Bar willfully accepted the Court's
jurisdiction when they were admitted to practice--but non-members obviously have not done
so. It is unconscionable for the Supreme Court of Florida to allow the use of
unsubstantiated allegations of unlicensed practice of law prosecuted by The Florida Bar
as its fabricated conduit for jurisdiction over the alleged actions of a non-member of The
Florida Bar, which ultimately circumvents the rights of the accused including the right
to a jury trial and the right to counsel. The Court's scheme denies due process to the
non-lawyer accused of UPL.
The United States Supreme Court discussed the historic progression of due
process in Griffin v. People of the State of Illinois, (1956), 351 U.S. 12, 16, 76 S.Ct.
585, 590 wherein was stated:
Providing equal justice for poor and rich,
weak and powerful alike is an age-old problem.
People have never ceased to hope and strive to
move closer to this goal. This hope, at least
in part, brought about in 1215 the royal
concessions of Magna Charta: "To no one will
we sell, to no one will we refuse, or delay,
right of justice."
Ye shall do no unrighteousness in judgment;
thou shalt not respect the person of the poor,
nor honour the person of the might; but in
righteousness shalt thou judge thy neighbor.
Leviticus, c. 19, v. 15.
Persons accused of UPL are denied an impartial tribunal by the composition of any
committee assembled by The Florida Bar to investigate and adjudicate non-members
of The Florida Bar. The U.S. Supreme Court in its opinion in Marshall v. Jerrico,
(1980), 446 U.S. 238, 242, 64 L.Ed.2d 182, 100 S.Ct. 1610, 1613, stated:
The due process clause entitles a person to an
impartial and disinterested tribunal ....
This requirement of neutrality in adjudicative
proceedings safeguards the two central
concerns of procedural due process, the
prevention of unjustified or mistaken
deprivations and the promotion of
participation in dialogue by affected
individuals in the decision making process.
(citations omitted) The neutrality
requirement helps to guarantee that life,
liberty, or property will not be taken on the
basis of an erroneous or distorted conception
of the fact or the law. (citations omitted)
... it preserves both the appearance and
reality of fairness (citations omitted) ...
assurance that the arbiter is not predisposed
to find against him.
Therefore, due to the biased composition of The Florida Bar's Standing Committee on
UPL and the defective and prejudicial process used by The Florida Bar in selecting the
members of said committee, non-lawyers are denied an impartial investigative process
as well as an impartial adjudicative process violating their state and federal
constitutional rights to due process of law and fundamental fairness.
The question presented here is whether the Bar's efforts are reasonable given
the facts presented, and equally, whether the Bar's investigative powers are being
exercised without prejudice and with sufficient attention given to the protected rights
of those non-Florida Bar members targeted by the Bar. The circuit UPL committees
appear to operate without sufficient public checks and balances or safeguards to
prevent abuse and to protect the rights of non-lawyer citizens targeted by the Florida
Bar. As the Supreme Court of Florida has noted:
Because of the natural tendency of all
professions to act in their own self-interest
... this Court must closely scrutinize all
regulations tending to limit competition in
the delivery of legal services to the public,
and determine whether or not such regulations
are truly in the public interest. (Emphasis
added).
The Florida Bar v. Brumbaugh, 355 So.2d 1186, 1189 (Fla. 1978)
In 1980 Barlow Christensen conducted a study of the unauthorized practice of
law. The findings of this study were published in the American Bar Foundation's
Research Journal (spring 1980), which concluded:
Suppression of the practice of law by non-
lawyers has been proclaimed to be in the
public interest, a necessary protection
against incompetence, divided loyalties, and
other evils. But this interest of the public
is one that has been defined, articulated,
promulgated, and enforced not by the public
but by the legal profession. And nowhere, in
all of the literature or in any of the court
decisions, is there evidence of a public voice
with respect to this supposed public interest.
(Emphasis added)
The question above is answered in the negative sense in all respects as The
Florida Bar is clearly and freely engaged in oppression relating to its persecution of
competitors of members of The Florida Bar.
The U.S. Supreme Court cited in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct.
1456, 43 L.Ed.2d 712 (1995) at 1436-1464 the following regarding prejudice in the
adjudicatory process:
Concededly, a "fair trial in a fair tribunal
is a basic requirement of due process." In re
Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
625, 99 L.Ed. 942 (1955). This applies to
administrative agencies which adjudicate as
well as to courts. Gibson v. Berryhill, 411
U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d
488 (1973). Not only is a biased decision maker
constitutionally unacceptable but "our system
of law has always endeavored to prevent even
the probability of unfairness." In re
Murchison, supra, at 136, 75 S.Ct. [623] at
625, 99 L.Ed. 942; cf. Tumey v. Ohio, 273 U.S.
510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50
A.L.R. 1243 (1927). In pursuit of this end,
various situations have been identified in
which experience teaches that the probability
of actual bias on the part of the judge or
decision maker is too high to be
constitutionally tolerable.
If the Court has any concern for the appearance that it and The Florida Bar
are jointly involved in a so-called legal process devoid of impartiality and fairness
which denies the very basics of due process, then the Court must divest itself of all
involvement in it and run with great haste away from it, after dismissing all cases
before the Court involving non-members of The Florida Bar accused of the unlicensed
practice of law.
II. Applying the Rules Regulating The Florida Bar to Non-Member Citizens
Denies Due Process to Non-Lawyers and is Unconstitutional.
The Florida Bar holds out its various Unlicensed Practice of Law committees
(the Standing Committee and numerous circuit committees) to act as grand juries in
matters of unlicensed practice of law investigations, cloaking their activities in
secrecy and denying the press access to their proceedings. Committee members are
far from being disinterested parties in matters before them because they are "hand
picked" by The Florida Bar.
"Intentional discrimination in the selection
of grand jurors is a grave constitutional
trespass, possible only under color of state
authority and wholly within the state's power
to prevent. Even if the grand jury's
determination of probable cause to believe
that a defendant has committed a crime is
confirmed in hindsight by a conviction on the
indicted offense, that information does not
suggest that discrimination did not
impermissibly infect the framing of the
indictment and, consequently, the nature or
existence of proceedings to come." Vasquez v.
Hillery, 474 U.S. 254 (1986).
Non-lawyers are denied a fair and impartial investigative and adjudicative
process. The U.S. Supreme Court stated In the Matters of Leroy Murchison and
John White, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (cited in Bryant v.
State, 1978 Fla. 1DCA 2777, 363 So.2d 1141):
A fair trial in a fair tribunal is a basic
requirement of due process. Fairness of
course requires an absence of actual bias in
the trial of cases. But our system of law has
always endeavored to prevent even the
probability of unfairness. To this end no man
can be a judge in his own case and no man is
permitted to try cases where he has an
interest in the outcome. That interest cannot
be defined with precision. Circumstances and
relationships must be considered. This Court
has said, however, that 'every procedure which
would offer a possible temptation to the
average man as a judge ... not to hold the
balance nice, clear and true between the State
and the accused, denies the latter due process
of law.' Tumey v. Ohio, 273 U.S. 510, 532, 47
S.Ct. 437, 71 L.Ed. 749. Such a stringent
rule may sometimes bar trial by judges who
have no actual bias and who would do their
very best to weigh the scales of justice
equally between contending parties. But to
perform its high function in the best way
'justice must satisfy the appearance of
justice.' Offutt v. United States, 348 U.S.
11, 14, 75 S.Ct. 11, 99 L.Ed. 11. (Cited in
Bryant v. State, 1978 Fla. 1DCA 2777, 363
So.2d 1141).
The Florida Bar Standing Committee on Unlicensed Practice of Law is one of
many instruments used by The Florida Bar and the Florida Supreme Court to deprive
the profession's perceived enemies, such as non-lawyer legal technicians and
independent paralegals, their constitutional rights as the profession attempts to
prevent intrusion into its monopoly. Even though the so-called "public members" of
the 37-member Standing Committee have been increased to 18, these 18 public
members are hand-picked by The Florida Bar insiders using the prospective
candidates' loyalty to The Florida Bar and the legal profession as their primary
qualifying factor and then are appointed by the Court "on advice of the board of
governors" and therefore do not truly represent the public interest.
These non-lawyer committee members are exclusively persons who meet one
or more of the following criteria: a member of a regulated profession who can
empathize with The Florida Bar's battle against competition with legal technicians;
work in a profession that requires a good working relationship with Florida Bar
members; a person whose income originates from members of The Florida Bar and/or
a person whose income is high enough to afford the services of an attorney and
therefore does not rely on legal technicians to gain access to the courts. There are no
legal technicians/independent paralegals on the Florida Bar Standing Committee on
UPL which determines who will be forced out of business.
The other 19 members have a far greater conflict of interest in investigating
non-lawyers and in deciding whether or not they will be prosecuted, in that they are
(a) members of The Florida Bar who must compete with the very low prices charged
by legal technicians in or near the geographic locations of their law practices and (b)
may have requested a position on The Florida Bar's Standing Committee on UPL for
self-serving purposes, such as to target a nearby legal technician for prosecution. An
impartial fact-finding panel it is not.
In The Florida Bar's own publication, The Florida Bar Journal, it disclosed the
need for Bar members to be concerned with increased competition by legal
technicians and paralegals. In its May 1997 edition on pages 18-21 in an article titled
"Key Trends in the Legal Profession," Mike J. Garcia, an employee of The Florida Bar,
stated in his article's introduction, in part, "By identifying the key trends which will
take place in the legal profession and assessing their impact, we can start to plan how
to respond to them by generating and playing out scenarios of possible strategies."
Of the seven key trends Mr. Garcia identifies in his article, one is subtitled "Increase
of Legal Technicians/paralegals." At the close of his article Mr. Garcia writes, "The
21st Century will bring a proliferation of independent legal technicians--it is important
The Florida Bar and its membership recognize this and plan accordingly." I insist that
the Supreme Court of Florida and The Florida Bar, in concert, have already done so.
III. The Restrictions Promulgated in Chapter 10 of The Rules Regulating The
Florida Bar Concerning Which Forms May be Generated by a Non-Lawyer Unlawfully
Restrict the Public's Right to Access to the Courts Under the State and Federal
Constitutions.
The United States Supreme Court has ruled that if prisoners are denied the right
to legal help in preparing habeas corpus petitions, they must be afforded a reasonable
alternative (i.e., non-lawyers who know how to help). Johnson v. Avery, 393 U.S.
483 (1969). The implementation of the present-day "Supreme Court Approved
Forms" addressed in Chapter 10 is a product of the case of The Florida Bar v.
Rosemary Furman. Whereas Ms. Furman was assisting poor women in divorce cases
for a $50.00 fee, but The Florida Bar and its members wanted her stopped. Limiting
legal processes which are available to the public by limiting the availability of
"Supreme Court Approved Forms" and then punishing non-lawyers for using the same
forms and processes used by lawyers unreasonably restricts access to the court
system to persons who cannot afford to hire an attorney. The Court must remember
who actually paid for that fine leather chair in which they are seated, who pays their
salary and who paid for the courthouse facilities-- the citizens of this state who out-
number Florida Bar members by approximately 270 to 1! Restricting access to the
courts by the Supreme Court of Florida is violative of rights granted by the state and
federal constitutions and such practice must be halted.
Today the poor and middle class face a legal access crisis precisely because
information about how to approach and use our courts moves sluggishly if at all due
to the greed of the "officers of the court". It is dammed up by a class of
professionals known as lawyers who charge such unaffordably high fees that, in
Florida, The Florida Bar felt it necessary to establish a Fee Arbitration Program to help
settle fee disputes between attorneys and their gorged clients. How many other
professions can you think of have such a special program complete with its own
government committee. In almost all states, lawyers have used their power to enact
statutes restricting to lawyers the right to provide legal information designed to solve
an individual's legal needs. And in all but a few states the laws go on to provide that
a non-lawyer who gives legal advice has committed a crime punishable by
imprisonment. In Florida, it is a first degree misdemeanor pursuant to Florida Statute
454.23, but few cases are tried under this law. A more insidious process is applied
in Florida, as described herein.
Almost no other type of speech has ever been similarly forbidden in advance
to the public. The reason is clear. Prohibitions on disseminating information are
almost always ruled to be unconstitutional violations of the First Amendment, which
forbids any law that abridges the freedom of speech. This is especially true when it
comes to speech about how to deal with public bodies such as Congress, state
legislatures, and administrative agencies. There is no good reason to treat the courts
differently than any other organ of government.
Courts have allowed only a handful of narrow exceptions to this near-absolute
rule prohibiting advance restrictions to free speech. Obscenity, incitement to violence
and false speech (libel, slander, fraud) are examples of the kinds of speech that the
government may legally abridge. The government also may restrict commercial
speech, such as advertising, if the restriction directly serves substantial state interests
and the restriction is in reasonable proportion to the interests served.
It is worthy of note that in other areas of American life, including the regulation
of books claimed to be pornographic, where First Amendment rights were being
restricted by quasi-official, but essentially private review boards, the U.S. Supreme
Court has found a constitutional violation. Bantam Books Inc. v. Sullivan, 372 U.S.
58 (1963).
If speech does not fall within these types of exceptions, it is fully protected
under the First Amendment. It may be restricted only if the government has a
compelling interest for doing so and the restriction is as narrowly tailored as possible
to satisfy the compelling interest. Eliminating competition to lawyers is not a
compelling interest.
The U.S. Supreme Court has ruled that legal advice is fully protected speech
rather than commercial speech, even though the legal advice is given for a fee.
Board of Trustees, State University of New York v. Fox, 492 U.S. 469 (1989). That
means that the government must have a compelling interest in stopping nonlawyers
from giving legal advice. It's a tough standard to meet for an honest court.
Consumer protection is the reason usually advanced by the legal profession to
justify handing it the exclusive right to give legal advice but it is a ruse. According
to this view, poor legal advice can cause such serious harm that a license should be
required of those who provide it. Numerous studies of this issue, however, have
shown that this fear is unwarranted. No study has produced concrete evidence that
legal advice from nonlawyers causes more harm than that sold it by licensed lawyers.
Also see Conway-Bogue Realty Investment Co. v. Denver Bar Association, 312 P.2d
998 (1957).
When you think about it, denying consumers who can't afford a lawyer the
right to purchase legal advice and completed forms from more affordable sources is
a ridiculous way to protect them. This only protects lawyers from low-cost
competition. The argument put forth by lawyers' groups seems to be that it is better
for most consumers to have no legal advice than for some to receive advice that may
be inaccurate or incomplete. Interestingly, this argument is raised by lawyers, almost
never by consumers, and lawyers persist in making it even though there have been
very few complaints about existing non-lawyer legal form preparation businesses in
comparison to the number of complaints lawyers generate from their clients. It's as
if accountants and tax lawyers could put H&R Block and other tax preparers out of
business because they didn't approve of their training or level of advice (but they
could be next as the legal profession expands into these areas and declare it "the
unlicensed practice of law").
Thus there seems to be no compelling reason to deny non-lawyers the right to
offer the public information about our laws and courts as long as they do not
misrepresent themselves to the public. But even if there were a compelling interest,
the method of regulation- barring everyone but lawyers from giving legal advice--is
much broader than it needs to be. For example, the term "legal advice" is never
clearly defined in the laws that forbid nonlawyers from giving it. This means that
when a complaint against a non-lawyer is made, a judge (also a lawyer, of course)
has no reasonable standard to use when deciding whether or not legal advice was
given. As a result, unauthorized practice laws make criminals out of anyone who
utters words that might, even after the fact, be interpreted as legal advice by a court.
This sort of blanket censorship of all unlicensed legal advice is surely as blatant a
violation of the First Amendment as you'll ever find, as it chills free speech
undeniably.
In Wyche v. State, 619 So.2d 231 (1993 Fla. S.Ct. 1092) the Court stated:
When lawmakers attempt to restrict or
burden fundamental and basic rights such as
these, the laws must not only be directed
toward a legitimate public purpose, but they
must be drawn as narrowly as possible. See
Firestone v. News-Press Publishing Co., 538
So.2d 457 [14 FLW 54, 1989 Fla.SCt 318] (Fla.
1989). As the United States Supreme Court has
noted, "[b]ecause First Amendment freedoms
need breathing space to survive, government
may regulate in the area only with narrow
specificity." NAACP v. Button, 371 U.S. 415,
433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Put
another way, statutes cannot be so broad that
they prohibit constitutionally protected
conduct as well as unprotected conduct.
News-Press Publishing Co., 538 So.2d at 459.
When legislation is drafted(FN1) so that it
may be applied to conduct that is protected by
the First Amendment, it is said to be
unconstitutionally overbroad. See Southeastern
Fisheries Ass'n, Inc. v. Department of Natural
Resources, 453 So.2d 1351 [1984 Fla.SCt 1497],
1353 (Fla.1984). This overbreadth
doctrine permits an individual whose own
speech or conduct may be prohibited to
challenge an enactment facially "because it
also threatens others not before the court -
those who desire to engage in legally
protected expression but who may refrain from
doing so rather than risk prosecution or
undertake to have the law declared partially
invalid." Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d
394 (1985). The doctrine contemplates the
pragmatic judicial assumption that an
overbroad statute will have a chilling effect
on protected expression. City of Daytona Beach
v. Del Percio, 476 So.2d 197 [10 FLW 458, 1985
Fla.SCt 3207], 202 (Fla.1985).
IV. The Florida Bar has a Corrupt Motive to Investigate and Prosecute Non-
Lawyers for the Unlicensed Practice of Law.
Historically, efforts of the legal profession to prevent the unauthorized
practice of law to perfect a monopoly of legal services have long played a role in
American jurisprudence. Throughout the years, the common justification of such
efforts has been the legitimate interest of the state in protecting the public from the
unskilled and dishonest(FN2) but this expressed concern for the public interest is not the
true motivator. Equally, those efforts have also been coupled with an emotional, if
not outright, appeal that such is necessary to protect the profession. As artfully put
by a former chairman of the State Committee on Unauthorized Practice:
The unauthorized practice of the law as it
flourishes today presents a ringing challenge
to the members of our profession; and if it is
not stamped out, root and branch, every
ethical and self-respecting lawyer, sooner or
later, will have to close his office and
abandon the hopeless task of making a living
in the practice. (Emphasis added)
Yates, Milton. A Challenge - The Unauthorized Practice of the Law; 9 Fla.L.R. 560
(1935).
In his article, Yates sought to re-emphasize the role played by local attorneys
in assisting the profession to prevent UPL. This was an important endeavor because,
at that time, UPL was addressed by petition in chancery at the circuit court level, with
a local attorney as petitioner. Yates, supra (discussing the impact of a Tampa
newspaper article critical of the efforts of the attorney organization in Tampa, which
had sought an injunction to prohibit the practice of law by certain non-lawyers.)
Conclusion
The Florida Bar and the Supreme Court of Florida have a corrupt motive for
their unlicensed practice of law prosecutions and adjudication of non-lawyer citizens
not members of The Florida Bar. Our Judicial Branch has surrendered the power and
prestige of the State to a powerful professional trade union (The Florida Bar, formerly
known as the Florida State Bar Association) so it may repress its competitors and
promote its own business interests which are contrary to the public interest. See 40
So.2d 902 (1949) which records the surrender of our Judicial Branch of State
Government to the Florida State Bar Association on June 7, 1949.
The appearance and suggestion that justice is for sale at 500 South Duval
Street, Tallahassee, Florida, in matters that challenge the legal profession's monopoly
is overwhelming and damning. The current scheme used by the Judiciary to
prosecute non-lawyers for UPL under a court rule usurps the authority of the other
co-equal branches and is unconstitutional. The scheme is implemented with the
intent to deny due process and fundamental fairness to non-bar-member citizens
accused of UPL, to allow the Judiciary to manipulate the outcome of the case. It is
clear that Florida citizens are being denied honest government services by their
Judicial Branch.(FN3)
Unlicensed persons alleged to have engaged in UPL are only afforded
constitutional protections under Florida's UPL statute, 454.23 F.S., not under the
Bar's Rules. The overriding state interest in the matter is protected under the UPL
statute.
The state interest in regulation of persons licensed to practice before the
courts relates to the integrity of the judicial system, and is separate and distinct
from protection of the public against unlicensed persons, which is satisfied by the
UPL statute.
In addition to the absence of provisions in the Rules Regulating The Florida Bar
for consideration of state and federal constitutional issues on behalf of non-lawyers,
the persons charged with undertaking the prosecution of non-lawyers, as well as
those to whom responsibility is delegated for fact-finding, are all individuals with an
identifiable personal interest in the outcome. No right to jury trial or right to counsel
is provided. Additionally, under Rule 4-5.5(b) of the Rules Regulating The Florida Bar,
the person charged is also denied the right to counsel in UPL cases through the
intimidation of prospective counsel by this rule.
While the discipline of "licensed" attorneys may proceed without such funda-
mental constitutional protections as to the right to jury trial because of such licensees'
consent to regulation as part of the state's grant of the license privilege, no such
consent, or waiver of rights, has been given by those persons classified as non-
lawyers/non-attorneys under Rule 10-2.1(b) of the Rules Regulating The Florida Bar.
The legislation the undersigned hereby proposes should resolve most of the
issues raised herein to the benefit of the non-lawyer citizens of this state. The
proposed legislation is attached.
Ron Eubanks
Able Legal Document Service
3 Maples St. NW
Fort Walton Beach, FL 32548
(850) 244-2230
Date: January 20, 1999
Footnote 1 - In the instant case the offending item is not legislation but a court rule having the effect of legislation promulgated by self serving Florida Bar members and the Supreme Court of Florida absent significent input from the public or their elected representatives-- Chapter 10 of the Rules Regulating The Florida Bar.
Footnote 2 - As noted by Stanford Professor Deborah Rhode, " [T]hat no comperehensive history of the bar's role in unauthorized practice enforcement has ever been published is somewhat surprising, given public skepticism concerning the profession's objectives. " Policing the professional Monopoly: A Constitutional and Empirical Analysis of Unautorized Practice Prohibitions,34 Stanford L.R. 1, at 6 (November 1981). Professor Rhodes does however cite to several sources which offer a glimpse of such regulation efforts. See Also, Rhode, Deborah. The Delivery of Legal Services by Non-Lawyers,4 Geo. J. Legal Eth. 209-10 (1980).
Footnote 3 - The Florida Bar, as it stands today without public checks and balances, is a public menace which threatens the rights of all state citizens. Therefore, the Florida Legislature should also consider requiring attorneys to pay their annual license fees ($190.00 plus per lawyer) into the state general fund instead of into the coffers of The Florida Bar. These fees add up to many millions of dollars annually. The Florida Bar expends millions of these dollars to fund the salaries and expenses of its private UPL police department, headed by Mary Ellen Bateman, Esquire and to fund other questionable special interest programs such as manipulating the Constitution Revision Commision, state legislation, etc. This would certainly have the effect of putting The Florida Bar on a leash, which is the least that should be done with any "rabid beast" running wild and roughshod across the state abusing and pillaging the citizenry. Additionally, The Florida legislature should consider conducting a formal inquiry into the improper conduct of The Florida Bar management and staff, as well as the Supreme Court's willful complicity.