Dunn v. The Florida Bar, 88-3865
| Decision Date | 06 December 1989 |
| Docket Number | No. 88-3865,88-3865 |
| Citation | 889 F.2d 1010 |
| Parties | Serena DUNN, individually and Willie A. Wiggs, and Marva Pamela Evans, individually and on behalf of similarly situated individuals, Plaintiffs-Appellants, Cross-Appellees, v. THE FLORIDA BAR, the Supreme Court of Florida, Gerald F. Richman, President, The Florida Bar, et al., Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alan B. Morrison, Washington, D.C., Elizabeth L. White, Jacksonville, Fla., for plaintiffs-appellants, cross-appellees.
C. Harris Dittmar, Timothy J. Corrigan, Jacksonville, Fla., Eric J. Taylor, Asst. Atty. Gen., Tallahassee, Fla., defendants-appellees, cross-appellants.
Appeals from the United States District Court for the Middle District of Florida.
Before KRAVITCH, Circuit Judge, HILL *, Senior Circuit Judge, and FREEMAN **, District Judge.
The appellants, who sought an amendment of one of the rules of The Florida Bar, have voluntarily dismissed their lawsuit, but continue to seek attorneys' fees pursuant to 42 U.S.C. Sec. 1988. The appellees deny that appellants are prevailing parties and deny that this case involves any rights secured by the United States Constitution. Thus, the appellees contend that the appellants did not assert a colorable constitutional claim that would entitle them to attorneys' fees under 42 U.S.C. Sec. 1988. The district court has entered a memorandum and order denying the appellants' application for fees on the grounds that they lacked a colorable claim. The court also made an alternative ruling that, had "the plaintiffs ... established their threshold constitutional entitlement under section 1983, to seek attorneys' fees under section 1988," then "... the court would award as reasonable attorneys' fees one-half of the net fees previously calculated."
We affirm the district court's initial ruling that the appellants are not entitled to any fees at all.
This case began life in another form. Its origins may be found in an entirely different matter, The Florida Bar v. Furman, 376 So.2d 378 (Fla.1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). In that case, the Florida Bar brought a civil action against Ms. Rosemary Furman, a legal secretary who assisted individuals, seeking divorces, who appeared pro se in the Florida courts. Specifically, Ms. Furman obtained information from the individuals, typed up the necessary papers, instructed them how to file and proceed with their cases, all for a fee of $50.00. The Bar argued, and the Florida Supreme Court agreed, that her activities constituted the unauthorized practice of law.
During the course of Ms. Furman's defense, her attorney, Mr. Alan B. Morrison, determined to test a legal theory that, under cases such as Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the state may not constitutionally deny access to the legal system to those unable to pay for matters such as divorce. Thus, Ms. Furman told the original plaintiff in this action, Serena Dunn, that she could not assist her directly in obtaining a divorce; however, Ms. Dunn might become a plaintiff in a test case challenging the constitutionality of the Florida Bar rules.
On March 16, 1983, Ms. Dunn who is illiterate, individually and on behalf of a class of similarly situated individuals, filed her complaint for declaratory and injunctive relief against The Florida Bar and The Supreme Court of Florida. In part, she stated:
Plaintiff class members are unable to afford the services of attorneys to assist them in obtaining relief which only the state can provide and are also unable, by reason of their illiteracy, blindness, their inability to read and write English, or other handicap to handle their matters pro se or with the limited assistance currently allowed to be provided by lay persons under Florida law.
On January 5, 1984, the district court denied an earlier motion to dismiss of defendant Florida Bar. On November 15, 1984, the court entered an order granting class certification in this matter; the Court determined that Willie A Wiggs and Marva Pamela Evans were adequate representatives of the plaintiff class. As ordered, Ms. Dunn, Mr. Wiggs and Ms. Evans filed a third amended complaint, which alleged:
[T]he Supreme Court has determined that lay assistants, such as legal secretaries, may do no more than type verbatim court pleadings that are given to them by their customers. They are forbidden from using intake forms to obtain from their customers the information called for in the pleadings, and they may not discuss the papers given them by their customers, even when the papers are incomplete or contain contradictory information. Failure to adhere strictly to these instructions subjects such lay assistants to injunctive actions, such as civil and criminal contempt proceedings, brought by the defendants.
Unlike Ms. Dunn, Mr. Wiggs and Ms. Evans are literate. They allege that they bring their action on behalf of a class of similarly situated individuals, consisting of all present and future residents of the Fourth Judicial Circuit of Florida:
(a) who either presently desire, or in the future may desire, to exercise their fundamental right to obtain a dissolution of marriage;
(b) who are unable to exercise their right to do so without the assistance of another person because they lack the skills, knowledge, familiarity with the court system, self-confidence, and other abilities required to appear pro se;
(c) who are not eligible to utilize the simplified dissolution of marriage procedures in Rule 1.611(c) of the Florida Rules of Civil Procedure which entitle them to the assistance of the Clerk of the Court in obtaining a dissolution of marriage;
(d) who are unable to obtain the services of a lawyer because they cannot afford to pay the charges of a lawyer and because no lawyers are available to serve them on a pro bono or reduced fee basis; and
(e) who are able to afford the services of persons who, although not members of the Bar, are able to provide them the assistance they need to obtain a dissolution of their marriage and for which they charge members of the plaintiff class an amount which the class members can afford; but who are unable to utilize the services of such lay assistants because of the instructions against lay assistants providing such services which are enforced by defendants.
The Florida Bar and the Florida Supreme Court filed separate motions for summary judgment on September 27, 1985 and October 2, 1985; on November 10, 1986 the district court denied the motion of each defendant. The court set a trial date of October 13, 1987, but the appellants' voluntary dismissal of the case on August 27, 1987 mooted the trial. The district court, therefore, never resolved the constitutional question that the appellants posed.
On March 20, 1987, the Florida Bar Board of Governors approved a proposed amendment to Supreme Court Rule 10-1-1(b), Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law. The amendment read as follows:
UPL. The unlicensed practice of law, as prohibited by statute, court rule, and case law of the State of Florida. For purposes of this chapter, it shall not constitute the unlicensed practice of law for nonlawyers to engage in limited oral communication to assist individuals in the completion of legal forms approved by the Supreme Court of Florida. Oral communication by nonlawyers is restricted to those communications essential to elicit factual information necessary for the completion of the form(s) and inform the individual how to file such form(s).
On June 9, 1987, the appellants' counsel submitted comments to the Supreme Court "on behalf of Serena Dunn and the other members of the certified plaintiff class in the case of Serena Dunn, et al v. The Florida Bar, et al...." Mr. Morrison noted that "we are troubled by some of the instructions contained in [the amendment], and we urge the court to modify them." He went on to request two small changes, "... that the word 'essential' ... be changed to 'reasonably necessary' [to] ... eliminate the in terrorem effect ..." and "that the phrase 'necessary for the completion of' ... be changed to 'to complete.' "
Mr. Morrison also asked the court to make clear "... that non-lawyers may tell the individuals, for example, how many copies must be filed, what the filing fees are, what is the proper method of payment, how long the typical period is before a hearing will be scheduled, and other matters of a routine administrative nature...."
On July 9, 1987, the Supreme Court of Florida issued a per curiam under the caption "The Florida Bar Re Amendment to Rules Regulating the Florida Bar (Chapter 10)." The per curiam noted that "[c]omments to the proposed amendment have been filed by an attorney representing a class of plaintiffs who wish to dissolve their marriages but who cannot afford a lawyer, who are ineligible for legal aid, who cannot currently be assisted by clerks of court, and who are unable to prepare the required papers by themselves." Florida Bar, 510 So.2d 596, 597 (Fla.1987). The court held:
After considering this matter, we adopt the bar's proposal, as amended by the comments we have received. We also hold that nonlawyers can give information regarding routine administrative matters.
On July 27, 1987, Mr. Morrison wrote C. Harris Dittmar, Esq., counsel for The Florida Bar, and Mr. Eric J. Taylor, Esq., Assistant Attorney General, Department of Legal Affairs, counsel for the Supreme Court. Mr. Morrison informed them that, "[b]ased upon this change in the rules, which was initiated by the Bar and approved by the Supreme Court of Florida, plaintiffs have now obtained substantially all of the relief which they had sought and,...
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