Amendments to Rules Regulating The Florida Bar- 1-3.1(a) and Rules of Judicial Admin.- 2.065 (Legal Aid), In re
| Decision Date | 13 December 1990 |
| Docket Number | No. 74538,ADMINISTRATION--2,BAR--1-3,74538 |
| Citation | 573 So.2d 800 |
| Parties | 15 Fla. L. Weekly S651 In re AMENDMENTS TO RULES REGULATING THE FLORIDA1(a) AND RULES OF JUDICIAL065 (LEGAL AID). |
| Court | Florida Supreme Court |
Talbot D'Alemberte of Steel, Hector and Davis, Miami, on behalf of fifty-eight members of The Florida Bar, for petitioner.
James Fox Miller, President, Hollywood, Benjamin H. Hill, III, President-elect, Tampa, James A. Baxter, Chairman of Bd. of
Governor's Committee on Access To The Legal System, Clearwater, Jack F. Harkness, Jr., Executive Director, and Mary Ellen Bateman, UPL Counsel, Tallahassee, on behalf of The Florida Bar; Anthony C. Musto, Chairman, Florida Rules of Judicial Administration Committee, of Musto, Zaremba and Rosenthal, Coral Gables, Henry P. Trawick, Jr., Sarasota, Brian C. Sanders, Fort Walton Beach, Joseph W. Little, Gainesville, and Harvey M. Alper, Altamonte Springs, Michael H. Davidson, Fort Lauderdale, and James E. Tribble of Blackwell & Walker, P.A., Miami, on behalf of the Dade County Bar Ass'n, responding.
The Court has before it a petition of fifty-eight members 1 of The Florida Bar who seek to have this Court (1) amend the Rules Regulating The Florida Bar to make clear that all members of The Florida Bar have a duty to provide aid to indigents when ordered to do so by a court and (2) adopt a rule of judicial administration that requires each circuit to develop a plan addressing the legal needs of the poor in that community. Various responses in opposition have been filed, and all interested persons have had an opportunity to present their views.
In summary, we find that lawyers have an obligation, when admitted to The Florida Bar, to provide legal services for the poor when appointed by a court. We find that no change to the Rules Regulating The Florida Bar is necessary, and we defer consideration of the proposed judicial administration rules pending receipt of the report of the Florida Bar/Florida Bar Foundation Joint Commission on the Delivery of Legal Services to the Indigent in Florida (hereinafter Joint Access Commission). We request that the Commission's recommendation be filed prior to February 1, 1991.
Petitioners argue that the poor have legal needs and that this Court is responsible for taking the lead in assuring the availability of legal services for the poor. To accomplish this, petitioners propose the following rules:
(1) An amendment to the Rules Regulating The Florida Bar to be entitled rule 1-3.1(a):
Rule 1-3.1(a) Duties. It is the duty of every member of The Florida Bar to provide aid to indigents as and when ordered by the courts, including orders issued pursuant to Rule 2.065 of the Florida Rules of Judicial Administration.
(2) The following new rule of judicial administration:
RULE 2.065. LEGAL ASSISTANCE TO THE POOR.
(a) Statement of Purpose. The purpose of this rule is to establish a procedure by which legal needs of the poor in Florida may be determined and satisfied at the circuit level. This rule implements the rights to justice set forth in 11 Hen. 7, c[h]. 12, as adopted by section 2.01, Florida Statutes, the power of judicial assignment as prescribed by rule 4-6.2 of the Code of Professional Responsibility, and the rights to access to the courts, due process, and equal rights guaranteed by the Constitution of Florida. It provides a procedure for all Florida judges to assign attorneys in appropriate cases.
(b) Duties of Chief Judges.
(1) Requests for Aid. In each circuit, petitions or other such requests for legal services may be given to the chief judge. Requests may come from any interested party, including legal services organizations, the local bar, or individuals.
(2) Responses. In response to such requests, the chief judge may: (i) assign an attorney or attorneys to handle a given request; (ii) delegate to other judges in the circuit responsibility for receiving and effectuating the requests; (iii) appoint a legal needs commission to handle creation of procedures for receiving and acting upon requests; or (iv) create any other procedure for the effective handling of requests for legal aid.
(c) Plan for Meeting Legal Needs.
(1) The Plan. Each plan will include the processes for funding legal services, selecting meritorious cases, appointing counsel, and enforcing the plan.
(2) The Commission. Should the chief judge appoint a legal needs commission, the commission shall have the power to devise and effectuate a plan for meeting the community's legal needs. The commission may include attorneys, judges, and other citizens. The commission shall hear from all interested parties and may receive submissions from lawyers, law firms, and legal service organizations.
(d) Ratification. The procedure and resulting plan chosen by the chief judge will be filed by the chief judge with the Supreme Court of Florida.
(e) Petition to Amend or Revoke Plan. Where conditions are shown to justify an amendment or revocation of the plan, the chief judge shall entertain a petition to amend or revoke using the procedure described in subsection (b)(1).
Petitioners assert that the right to counsel was established by a statute adopted in England in 1495. This statute concerns legal services to the poor and states in part:
That every poor person ... which shall have cause of action ... against any person ... within this realm shall have by the discretion of the Chancellor of this realm ... writ or writs original and writs of subpoena ... therefore nothing paying to your highness for the seals of the same, nor to any person for the writing of the same writ and writs to be hereafter sued; and that the said chancellor ... shall assign such of the clerks which shall do and use the making and writing of the same writs, to write the same ready to be sealed, and also learned Counsel and Attorneys for the same, without any reward taken therefore: And after the said writ or writs be returned ... the Justices there shall assign to the same poor person or persons, counsel learned, by their discretions, which shall give their Counsels, nothing taking for the same: And likewise the Justices shall appoint Attorney ... for the same poor person ... and all other officers requisite and necessary to be had and made, which shall do their duties without any reward for their counsels, help, and business in the same....
11 Hen. 7, ch. 12 (1495) .
Petitioners reason that under section 2.01, Florida Statutes (1989), the common law and statutes of England in effect on July 4, 1776, are in force in Florida unless they are inconsistent with the constitution or laws of this state or of the United States. Petitioners note that neither the constitution nor the legislature has repealed this statute and, consequently, this statute is presently in force in Florida.
Petitioners further assert that a right to counsel is a necessity for persons living in today's complex society. They rely on the constitutional rights contained in the Florida Constitution, specifically, access to the courts, 2 equal protection, 3 due process, 4 this Court's authority to adopt rules, 5 and this Court's power over the legal profession. 6
Petitioners direct this Court's attention to its acknowledgment of its responsibility to assure the availability of legal representation to the poor as contained in our decisions in The Florida Bar v. Furman, 376 So.2d 378 (Fla.1979), appeal dismissed, 469 U.S. 925, 105 S.Ct. 316, 83 L.Ed.2d 254 (1984), and The Florida Bar: In re Emergency Delivery of Legal Services to the Poor, 432 So.2d 39 (Fla.1983), as well as in In Interest of D.B., 385 So.2d 83 (Fla.1980), where we explained the historic obligation of lawyers to represent the poor.
In response, respondents assert that this proposal is no more than mandatory pro bono and that any inherent judicial power that this Court has must be confined to lawyers' courtroom activities and cannot be extended to social welfare. They further assert that the proposed rules violate lawyers' fifth, thirteenth, and fourteenth amendment rights under the federal constitution and their rights under the declaration of rights of the Florida Constitution. 7 Respondents argue that nothing in the Florida Constitution empowers this Court to act in these circumstances and that the United States Supreme Court's decision in Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), expressly prohibits uncompensated legal services on the basis of a lawyer's traditional professional obligation. Two respondents propose alternative plans that seek legislative assistance and volunteer lawyers to meet the need for legal services for the poor.
When an individual is admitted to practice law in Florida, he or she becomes an officer of its courts upon taking an oath expressly adopted by this Court. 8 The oath extensively sets forth the responsibilities and obligations of lawyers in Florida. The last sentence expressly states: "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice." Rules Relating to Ethics Governing Bench and Bar, 145 Fla. 763, 797 (1941) (emphasis added). This provision identifies one of the specific public responsibilities lawyers have as officers of the court.
We recognized the historic obligation of the legal profession to represent the poor in our decision in In Interest of D.B. In that decision we explained the different means by which counsel can be provided where permanent termination of child custody is in issue. We also upheld the authority of the court to appoint counsel and the responsibility of the bar to provide representation. In that case, we noted:
The common law obligation of the profession to represent the poor without...
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