Amendments to Rules Regulating The Florida Bar 1-3.1(a) and Rules of Judicial Admin. 2.065 (Legal Aid), BAR--1-3

• Decision Date: 23 June 1993
• Docket Number: ADMINISTRATION--2,BAR--1-3,No. 74538,74538
• Citation: 630 So.2d 501
• Parties: 18 Fla. L. Weekly S348 AMENDMENTS TO RULES REGULATING THE FLORIDA1(a) AND RULES OF JUDICIAL065 (LEGAL AID).
• Court: Florida Supreme Court

Page 501

630 So.2d 501

18 Fla. L. Weekly S348

AMENDMENTS TO RULES REGULATING THE FLORIDA BAR--1-3.1(a) AND RULES OF JUDICIAL ADMINISTRATION--2.065 (LEGAL AID).

No. 74538.

Supreme Court of Florida.

June 23, 1993.

As Clarified on Denial of

Rehearing Feb. 3, 1994.

Talbot D'Alemberte and Randall C. Berg, Jr. of Steel, Hector & Davis, Miami, for petitioner.

Alan T. Dimond, President, Patricia A. Seitz, President-elect, The Florida Bar, Miami, John F. Harkness, Jr., Executive Director, The Florida Bar, James A. Baxter, Clearwater, Mary Ellen Bateman, UPL Counsel, The Florida Bar, Tallahassee, Alan R. Schwartz, Chief Judge, Third District Court of Appeal, Miami, Joseph W. Little, Gainesville, Harvey M. Alper, Altamonte Springs, Michael H. Davidson, Tallahassee, and J. Marion Moorman, Public Defender, Polk County Courthouse, Bartow, responding.

William A. VanNortwick, Jr., Chair, Jacksonville, and Paul C. Doyle, Staff Director, Orlando, on behalf of the Report of The Florida Bar/Florida Bar Foundation Joint Com'n on the Delivery of Legal Services to the Indigent in Florida.

OVERTON, Justice.

This cause is before the Court to review proposed pro bono rules prepared by The Florida Bar/Florida Bar Foundation Joint Commission on the Delivery of Legal Services to the Indigent in Florida. These proposed rules were prepared solely to address the legal needs of the poor in Florida pursuant to this Court's direction in In re Amendments to Rules Regulating the Florida Bar, 598 So.2d 41 (Fla.1992). By this opinion, we adopt the rules as modified herein and as set forth in the attached appendix.

In adopting these rules, we emphasize that they are aspirational rather than mandatory. The rules establish specific goals 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." Although all licensed lawyers in Florida take this oath, some respondents still argue that this Court has no authority to establish pro bono guidelines. Moreover, they claim that the rules are mandatory rather than aspirational and amount to nothing more than a social program for the general welfare of the public. On the other hand, some respondents assert that the proposed rules do not go far enough, arguing that the rules should be mandatory rather than aspirational and claiming that the implementation of mandatory pro bono is the only way to ensure that legal services will be provided to the poor.

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. ¹ 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, ² 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.

We realize, however, that the rules we adopt in today's opinion will not be the prime motivating force in making the legal system work through the provision of pro bono services--only lawyers themselves can do that. Nevertheless, by implementing the aspirational standards set forth by the rules in the appendix to this opinion, we hope that the lawyers of this state, as officers of our courts, will recognize the clear legal needs of the indigent in this state and will act to provide the necessary services. We do not believe that mandatory pro bono is necessary to fulfill that goal. As such, the rules are aspirational rather than mandatory, and the failure to meet the aspirational standards set forth in the rules will not constitute an offense subject to discipline.

On the other hand, we 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.

Further, we do not believe that the hourly pro bono service recommendation in the rules constitutes an unreachable aspiration for a lawyer in today's society. The rules recommend a minimum of twenty hours service per year for each member of the Bar. The American Bar Association, at its February 1993 meeting, adopted a suggested standard of fifty hours service per year. A.B.A. Model Rules of Professional Conduct Rule 6.1 (1993) ("A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.") The American Bar Association's suggested service standard is significantly greater than the twenty-hour goal we adopt through this opinion. We note that some law firms today set a goal for their partners and associates of 1800 to 2100 billable hours per year. By those standards, the suggested goal of twenty hours per year in these rules is minimal.

While we approve the substance of the proposed rules, we find that certain modifications are necessary to address a number of issues raised in this proceeding. To that end, we address the following six issues: (1) the definition of "legal services to the poor"; (2) the responsibility of judicial officers and governmental employees under the proposed rules; (3) collective satisfaction; (4) simplified reporting requirements; (5) the responsibility of out-of-state lawyers; and (6) coordination and development of local plans.

Definition of "Legal Services to the Poor"

The entire focus of this action has been to address the legal needs of the poor. That objective is distinguishable from other types of uncompensated public service activities of the legal profession. Clearly, this Court has the constitutional responsibility to ensure access to the justice system. Although other public service by the legal profession is important, no authority exists for this Court to address, through the Rules Regulating The Florida Bar, uncompensated public service activities not directly related to services for the courts and the legal needs of the poor. As such, we find that the proposed rules should be modified to eliminate any reference to services not related to the legal needs of the poor. Additionally, we find that the rules should clearly indicate that their purpose is to establish aspirational goals and to motivate the legal profession to provide necessary legal services to the poor. To accomplish these purposes, we find that the definition of legal services to the poor should be narrow, expressing simply that Florida lawyers should strive to render (1) pro bono legal services to the poor or (2) to the extent possible, other pro bono service activities that directly relate to the legal needs of the poor. It is also our intention that the definition include legal services not only to indigent individuals but also to the "working poor." The rules have been modified accordingly.

Judicial Officers and Government Employees

The responsibility of judicial officers and government employees in providing legal services to the poor presents a unique dilemma. Judicial officers and their staffs are expressly prohibited from practicing law, specifically: (a) article V, section 13, of the Florida Constitution (judge shall devote full time to judicial duties and shall not engage in the practice of law); (b) Code of Judicial Conduct, Canon 5B(1) (judge should not serve in civic or charitable organization if it is likely the organization will be engaged in proceedings that may come before the judge or will be regularly engaged in adversary proceedings in any court); (c) Canon 5D (judge should not serve in fiduciary capacity); (d) Canon 5F (judge should not practice law); and (e) Rule of Judicial Administration 2.060(c) (same limitations apply to judicial clerks).

These prohibitions are designed partially to prevent judges and their staffs from taking time away from their judicial duties. More importantly, however, the prohibitions are to prevent them from placing themselves in positions where their actions could directly or indirectly be influenced by matters that could come before them or could provide the appearance that certain parties might be favored over others. As a result, members of the judiciary and their law clerks are unable to participate in providing pro bono legal services to the poor absent a broadening of the definition of those services to such an extent that the services would no longer be limited to legal services. As discussed above under the definition of legal services, we believe that a narrow definition of pro bono services is necessary to ensure that the purposes behind the implementation of these rules are in accordance with our authority. Consequently, we find that members of the judiciary and their staffs should be deferred at this time from participating in the program.

We emphasize, however, that judges and their staffs may still teach or engage in activities that concern non-adversarial aspects of the law. Canon 4. Although those activities would not be governed by these rules, we strongly encourage the participation of the judiciary in those activities and...