Pace v. State, 49200

• Decision Date: 01 February 1979
• Docket Number: No. 49200,49200
• Citation: 368 So.2d 340
• Parties: Anthony PACE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 340

368 So.2d 340

Anthony PACE, Appellant, v. STATE of Florida, Appellee.

No. 49200.

Supreme Court of Florida.

Feb. 1, 1979.

Rehearing Denied March 27, 1979.

Irwin J. Block and Mitchell R. Bloomberg of Fine, Jacobson, Block, Goldberg & Semet, Miami, for appellant.

Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., Miami, for appellee.

BOYD, Justice.

Anthony Pace, a member of The Florida Bar, was convicted following jury trial in the County Court of Dade County, of solicitation of legal business in violation of section 877.02(1), Florida Statutes (1973). ¹ During the proceedings below, the appellant filed motions to dismiss, for new trial, and for arrest of judgment. Each raised the issue of the constitutionality of the statute. In a consolidated order the court denied the motions, holding that the statute is constitutional on its face and as applied. Such initial and direct passing on the constitutional validity of the statute gave this Court jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

The evidence showed that the appellant instigated a meeting between himself and a high school athlete, John Henry King, who was then a prospective college football player. The ultimate result of the meeting was that the student and his legal guardians entered into a retainer agreement with the appellant. While there was some evidence that the initial overture by Pace was made as a recruiter on behalf of his alma mater, the University of Pittsburgh, the jury was justified in concluding that the appellant committed acts constituting a violation of the statute.

On his appeal, Pace raises a number of issues, only two of which we find to merit extended discussion.

The appellant contends that the statute is unconstitutionally overbroad in that it is susceptible of application to expression that is protected by the first and fourteenth amendments to the United States Constitution and the declaration of rights of the Florida Constitution. Before considering this contention, we must resolve the preliminary issue raised by the state's assertion that the appellant does not have standing to present the overbreadth issue since the conduct he was shown to have engaged in is clearly not protected by freedom of expression principles. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

The anti-solicitation statute clearly has impact on speech. Standing to challenge a law for overbreadth on first amendment grounds "does not depend upon whether (one's) own activity is shown to be constitutionally privileged." Bigelow v. Virginia, 421 U.S. 809, 815, 95 S.Ct. 2222, 2229, 44 L.Ed.2d 600, 608 (1975). The Supreme Court of the United States has consistently permitted "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22, 28 (1965). This principle is an exception to the usual rules governing standing, and it applies here.

In the area of first amendment freedoms, government may regulate only with narrow specificity. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). In Button, the Supreme Court had for consideration a statute, aimed at the improper solicitation of legal business, which made it a crime to advise a person that his legal rights had been infringed and to refer him to a particular attorney or group of attorneys. At issue was the application of the statute to the NAACP's practice of supplying its staff lawyers to persons litigating racial discrimination issues. The state NAACP organization had a policy of devoting "much of its funds and energies to an extensive program of assisting certain kinds of litigation on behalf of its declared purposes." Id. at 419-20, 83 S.Ct. at 331, 9 L.Ed.2d at 410. The Court described the practices which were subject to being punished under the statute:

The members of the legal staff of the Virginia Conference and other NAACP or Defense Fund lawyers called in by the staff to assist are drawn into litigation in various ways. One is for an aggrieved Negro to apply directly to the Conference or the legal staff for assistance. His application is referred to the Chairman of the legal staff. The Chairman, with the concurrence of the President of the Conference, is authorized to agree to give legal assistance in an appropriate case. In litigation involving public school segregation, the procedure tends to be different. Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual, after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. In effect, then, the prospective litigant retains not so much a particular attorney as the "firm" of NAACP and Defense Fund lawyers, which has a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation.

These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to "go all the way" in any possible litigation that may ensue. While the Conference in these ways encourages the bringing of lawsuits, the plaintiffs in particular actions, so far as appears, make their own decisions to become such.

Id. at 421-22, 83 S.Ct. at 331-32, 9 L.Ed.2d at 411-12 (footnotes omitted).

The Supreme Court held "that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business . . .." Id. at 428-29, 83 S.Ct. at 335, 9 L.Ed.2d at 415.

In State ex rel. Farber v. Williams, 183 So.2d 537 (Fla.1966), this Court upheld section 877.02 against contentions that it was vague and overbroad. The opinion of the Court made reference to the Button decision and the freedom of expression concerns emanating therefrom. The Court held the statute valid and elaborated as follows:

The object of § 877.02(1) is to prohibit the solicitation of legal business by an attorney directly or by his agent or employee, or by another acting in his behalf. It does not prohibit the recommendation of an attorney by anyone to another where the one recommending has no relationship or privity with the attorney as the latter's agent or as his employee or other similar relationship with the attorney for the purpose of soliciting legal business for him. Thus the statute does not prohibit the recommendation of an attorney by a mere volunteer or acquaintance who has no prior and continuing relationship as agent or employee or similar status with the attorney recommended which contemplates solicitation of legal business for the attorney.

As interpreted above, we do not find the statute to be violative of the State or Federal Constitution. F.S. Section 877.02(1), F.S.A., falls in the class of acts Mala prohibita within the province of the legislature to enact. The legislature, drawing upon its knowledge of conditions inimical to the public welfare in the community and perceiving that solicitation of legal business by an attorney or by others in privity with him and acting in his behalf represents a social evil which for many years had been denounced as an unethical practice in the legal profession, had constitutional power to make such practice a criminal offense.

183 So.2d at 538-40.

It might be contended, however, that a number of recent decisions of the United States Supreme Court on the relationship between freedom of expression and lawyers' advertising and solicitation call for a reconsideration of the decision in State ex rel. Farber v. Williams.

In Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that the Arizona State Bar could not use its disciplinary power to unqualifiedly restrict attorneys from advertising routine legal services because to do so would constrict the flow of information protected by the first amendment. The decision is a recognition that the regulation of the legal profession by those bodies charged with the discipline of attorneys under codes of ethics can sweep too...