Amendments to Rule 4-6.1 of the Rules Regulating The Florida Bar-Pro Bono Public Service, BAR--PRO

• Decision Date: 22 May 1997
• Docket Number: BAR--PRO,No. 88646,88646
• Citation: 696 So.2d 734
• Parties: 22 Fla. L. Weekly S280 AMENDMENTS TO RULE 4-6.1 OF THE RULES REGULATING THE FLORIDABONO PUBLIC SERVICE.
• Court: Florida Supreme Court

Page 734

696 So.2d 734

22 Fla. L. Weekly S280

AMENDMENTS TO RULE 4-6.1 OF THE RULES REGULATING THE FLORIDA BAR--PRO BONO PUBLIC SERVICE.

No. 88646.

Supreme Court of Florida.

May 22, 1997.

Rehearing Denied July 9, 1997.

John W. Frost, II, President, Bartow, Edward R. Blumberg, President-elect, Miami, John A. DeVault, III, Immediate Past-president, Jacksonville, John F. Harkness, Jr., Executive Director, Paul F. Hill, General Counsel and John A. Boggs, Director of Lawyer Regulation, Tallahassee, Joseph W. Little, Gainesville, Harvey M. Alper of Massey, Alper & Walden, Altamonte Springs, Thomas Rowe Schwarz, Lauderhill, and Jane E. Hendricks, Miami, for Petitioner.

Talbot D'Alemberte, Tallahassee, Alan C. Sundberg of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Randall C. Berg, Jr., Peter M. Siegel and David Weintraub of Florida Justice Institute, Inc., Miami, Wm. Reece Smith, Jr., Tampa, Lynn Whitfield, President, and Gerald Williams, General Counsel, Florida Chapter of The National Bar Association, West Palm Beach, Bruce Levine, President of the Florida Pro Bono Coordinators Association, Miami, and Miyoshi D. Smith, Miami, in Opposition to the Petition.

PER CURIAM.

The Florida Bar (the Bar) petitions this Court for entry of an order amending rule 4-6.1 of the Rules Regulating the Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const. We deny the petition.

The Bar seeks to amend rule 4-6.1 to eliminate the mandatory annual reporting provision that currently requires all members of the Bar to report whether and how they have satisfied their professional responsibility of providing pro bono legal services to the poor. The proposed amendment would make slight, but crucial, changes to wording in the reporting requirements in section 4-6.1(d). It would replace the "shalls" with "shoulds" and would eliminate the last sentence, which currently reads: "The failure to report this information shall constitute a disciplinary offense under these rules." In short, the proposed amendment would substitute a voluntary annual reporting process for the current mandatory one.

Proponents of the amendment argue the following: The public interest is not served by the mandatory reporting requirement enforcement of the mandatory reporting requirement would infringe upon rights guaranteed by the state and federal constitutions; the current rule violates the separation of powers principle because it is a legislative undertaking; the current rule is an avoidance technique to prevent federal review of political activity; and finally, the Florida Supreme Court should not operate as a bully pulpit for public relations and encouraging charitable activity. We disagree with these assessments.

At the time this Court adopted the pro bono rules in 1993, we explained our authority and reason for so doing:

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.

Amendments to Rules Regulating The Florida Bar--1-3.1(a), 630 So.2d 501, 502 (Fla.1993).

We explained the need for the mandatory reporting requirement:

[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.

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.

Based on the foregoing, we deny the petition.

It is so ordered.

KOGAN, C.J., and SHAW and ANSTEAD, JJ., concur.

OVERTON, J., concurs with an opinion, in which HARDING and ANSTEAD, JJ., concur.

HARDING, J., concurs in part and dissents in part with an opinion.

WELLS, J., concurs in part and dissents in part with an opinion.

GRIMES, J., dissents with an opinion.

OVERTON, Justice, concurring.

I concur. I write separately to emphasize two distinct points. First, the rule has been effective. Second, there are no material changes in circumstances that would justify the abandonment of this relatively new reporting requirement. In 1993, we developed our pro bono rule in response to the glaring deficiency in the availability of legal services to the poor. The result reached in 1993 was a compromise solution to a debate between proponents of two extreme positions. Some people argued that the Court had no authority to establish pro bono guidelines. At the same time, others believed that the rule should be mandatory rather than aspirational. This Court approved a carefully crafted compromise that kept the pro bono rule aspirational while creating a mechanism with which to gauge the amount of pro bono work actually being provided in Florida. I concur today both because the current rule has been effective and because I see no compelling reason to disturb the compromise solution reached less than five years ago.

There can be no doubt that the reporting requirement has been effective. Accurate statistics are now available as to the number of pro bono legal hours being provided in Florida each year. These statistics can be used by this Court to analyze the extent to which the constitutional mandate of court access is being met. Additional resources can then be directed intelligently to areas of need. Without the reporting requirement, such evaluations would be made with incomplete information. Further, a positive side effect of our pro bono rule is that both pro bono legal services and contributions to legal services have increased. While the rule was not developed to force attorneys to provide pro bono legal services, the fact that the rule has raised consciousness and thereby increased the performance of such services does not disturb me.

Second, the very reasons forwarded in this case for abolishing the reporting requirement were addressed in our 1993 opinion. There we stated:

Some responses we have received argue that a reporting requirement makes this program mandatory rather than aspirational. We reject that contention. Granted, some peer pressure may exist as a result of the reporting requirement. However, given that the reporting requirement is the only true way to evaluate how the legal needs of the poor are being met, we find that the merits of the reporting requirement greatly outweigh any perceived pressure to participate. Indeed, if peer pressure motivates lawyers to participate, we find that such pressure may be beneficial in this instance.

Amendments to Rules Regulating the Fla. Bar, 630 So.2d 501, 505 (Fla.1993). The rule neither requires lawyers to provide pro bono legal services nor requires them to contribute $350. The rule is clearly aspirational. The sole requirement is that a lawyer report what he or she does. The oath that each of us takes as a lawyer in this state includes the words, "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." Some people have asserted that this language should be used to mandate the provision of pro bono legal services. The compromise crafted in 1993 stops short of that measure. The reporting requirement, when viewed in light of the cited section of the oath, is a minimal (and thoroughly reasonable) imposition on the professionals of the bar. The reporting requirement is an...