Schwarz v. Kogan, 96-3276

• Decision Date: 12 January 1998
• Docket Number: No. 96-3276,96-3276
• Citation: 132 F.3d 1387
• Parties: 11 Fla. L. Weekly Fed. C 937 Thomas Rowe SCHWARZ, Plaintiff-Appellant, v. Gerald KOGAN, Defendant-Appellee, Florida Bar Foundation, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1387

132 F.3d 1387

11 Fla. L. Weekly Fed. C 937

Thomas Rowe SCHWARZ, Plaintiff-Appellant, v. Gerald KOGAN, Defendant-Appellee Florida Bar Foundation, Defendant-Intervenor-Appellee.

No. 96-3276.

United States Court of Appeals Eleventh Circuit.

Jan. 12, 1998.

Thomas Rowe Schwarz, Lauderhill, FL, pro se.

Charlie McCoy, Dept. of Legal Affairs, Tallahassee, FL, Parker D. Thomson, Miami, FL, for Defendant-Appellee.

Randall C. Berg, Jr., Peter M. Siegel, Florida Justice Inst., Miami, FL, for Florida Bar Foundation.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, BIRCH and MARCUS ^*, Circuit Judges.

MARCUS, Circuit Judge:

This lawsuit arises out of a rule of professional responsibility enacted by the Supreme Court of Florida for the purpose of regulating the conduct of members of the Florida Bar. The rule, in pertinent part, requires Bar members to report their compliance with certain aspirational goals regarding the provision of legal services to the poor. Plaintiff-Appellant Thomas Rowe Schwarz, an attorney and member of the Florida Bar proceeding pro se, filed this action against the Chief Justice of the Supreme Court of Florida, essentially seeking declaratory and injunctive relief precluding enforcement of the rule. Schwarz asserts, among other things, that the rule denies him rights guaranteed by the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution. The district court granted a motion for summary judgment filed by Defendant-Appellees Gerald Kogan (the current Chief Justice of the Florida Supreme Court) and the Florida Bar Foundation. Schwarz now appeals that decision, and asks us to vacate the order and remand with instructions to enter summary judgment in his favor. For the reasons stated below, we find his argument unconvincing, and therefore affirm the district court's rulings.

I.

This appeal concerns Rule 4-6.1 of the Rules Regulating the Florida Bar. The Rule, which is captioned "Pro Bono Public Service," was adopted by the Florida Supreme Court in June of 1993 after a lengthy review and comment process, pursuant to its exclusive jurisdiction "to regulate the admission of persons to the practice of law and the discipline of persons admitted." Fla. Const. art. V, § 15. Section (a) of the Rule reads as follows:

Each member of The Florida Bar in good standing, as part of that member's professional responsibility, should (1) render pro bono legal services to the poor or (2) participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor. This professional responsibility does not apply to members of the judiciary or their staffs or to government lawyers who are prohibited from performing legal services by constitutional, statutory, rule or regulatory prohibitions [ ]. ¹

Section (b) of the Rule provides a critical gloss on this provision, by making clear that the obligation recognized by section (a) is "aspirational rather than mandatory in nature," and therefore "failure to fulfill one's professional responsibility under this rule will not subject a lawyer to discipline" (emphasis in original). Nevertheless, section (b) goes on to state that compliance with section (a) may be established in one of two ways: through the annual provision of 20 hours of pro bono legal services to the poor, or an annual contribution of $350 to a legal aid organization.

The crux of this appeal is section (d) of the Rule, which requires Florida Bar members to report, in conjunction with their annual dues statement, whether they have complied with the aspirational goals of section (a) or, in the alternative, qualify for an exemption. Specifically, section (d) begins by stating that "[e]ach member of the bar shall annually report whether the member has satisfied the member's professional responsibility to provide pro bono legal services to the poor." It then explains that "[e]ach member shall report this information through a simplified reporting form that is made part of the member's annual dues statement." The form contains the following inquiries, at least one of which must be answered or highlighted by the member:

(1) I have personally provided hours of pro bono legal services;

(2) I have provided pro bono legal services collectively by: (indicate type of case and manner in which service was provided);

(3) I have contributed to: (indicate organization to which funds were provided);

(4) I have provided legal services to the poor in the following special manner: (indicate manner in which services were provided); or

(5) I have been unable to provide pro bono legal services to the poor this year; or

(6) I am deferred from the provision of pro bono legal services to the poor because I am: (indicate whether lawyer is: a member of the judiciary or judicial staff; a government lawyer prohibited by statute, rule or regulation from providing services; retired or inactive).

While a Bar member's failure, or unwillingness, to honor the aspirational pro bono goals in the manner prescribed in section (b) will not expose him to professional discipline, failure to comply with the reporting requirement "shall constitute a disciplinary offense under these rules" and may trigger professional discipline by the Florida Supreme Court. Precisely what discipline the lawyer may face is unclear, since no lawyer has actually been sanctioned for violating Rule 4-6.1. A Bar member's report of his compliance or non-compliance with the aspirational goals of the Rule can be reviewed, upon request, by the public.

In May of 1994, Schwarz filed a petition with the Florida Supreme Court, asking that the pro bono rule be stayed and then revoked. The petition, in two instances, referred to Rule 1-12.1 of the Rules Regulating the Florida Bar. Then-Chief Justice Grimes directed that the petition be returned without filing. The Appellant was notified of this ruling through a letter signed by the Clerk of Court; the letter, dated May 24, 1994, advised Schwarz that he "must comply with Rule 1-12.1(f)" of the Rules Regulating the Florida Bar before the petition would be considered. Rule 1-12.1(f), among other things, states that "[o]nly the Supreme Court of Florida shall have the authority to amend" the Rules Regulating the Florida Bar. Rule 1-12.1(f) also creates certain procedural hurdles that must be cleared before a petition seeking the amendment of a Rule will be considered by the Florida Supreme Court. A petition may, for example, be filed only by the board of governors of the Florida Bar, or by 50 members in good standing so long as the proposed amendment is submitted beforehand to the Bar. Subsection (i), though, contains a proviso stating that "[o]n good cause shown, the [Florida Supreme Court] may waive any or all of the provisions of [Rule 1.12.1]."

With his petition rejected, Schwarz, in June of 1994, filed this lawsuit pursuant to 42 U.S.C. § 1983 in the Southern District of Florida (the case was later transferred to the Northern District of Florida). The district court granted a motion to intervene by the Florida Bar Foundation, and eventually substituted the current Chief Justice of the Florida Supreme Court (Kogan) for the former Chief Justice and original Defendant (Grimes). Schwarz sought preliminary injunctive relief precluding the Florida Supreme Court from disciplining any Bar member who failed to comply with the reporting requirement created by Rule 4-6.1(d). The Appellees, however, agreed to refrain from initiating disciplinary action for non-compliance with the reporting requirement during the pendency of this lawsuit. On March 10, 1995, the presiding district judge denied Schwarz's motion to disqualify "all sitting District Judges and Magistrates serving in the United States District Court for the Northern District of Florida" from hearing the case. The motion was premised on the argument that judges who are also Florida Bar members have a "direct personal, professional, and financial interest in the outcome of this cause." The parties subsequently filed cross-motions for summary judgment based upon a largely stipulated record. The summary judgment motions were referred to the assigned United States Magistrate Judge, who, on December 15, 1995, issued a lengthy report and recommendation. The magistrate judge recommended that the Appellees' motion be granted and the Appellant's motion be denied. Schwarz filed objections to the report; on August 9, 1996, however, the district court entered a brief order adopting the magistrate's recommendations and overruling the Appellant's objections. Judgment was entered on August 12, 1996.

After this appeal was docketed, the Florida Supreme Court issued a per curiam opinion rejecting certain amendments to Rule 4-6.1 proposed by the Florida Bar. Amendments to Rule 4-6.1 of Rules Regulating The Florida Bar--Pro Bono Public Service, 696 So.2d 734 (Fla.1997). The opinion, dated May 22, 1997, denied the Bar's application to amend the Rule by replacing the mandatory reporting requirement with a provision that would have made reporting largely voluntary. Schwarz, the Appellant here, is identified as one of the counsel of record for those arguing in favor of dropping the reporting requirement.

On appeal, Schwarz raises only some of the arguments he presented to the district court. He asserts that the reporting requirement of Rule 4-6.1(d) converts the aspirational goals of section (a) into a mandatory component of Bar membership, thereby making the Rule unconstitutional under this Circuit's substantive due process and equal protection jurisprudence. He also contends that the Rule amounts to an unconstitutional taking of his private property, and insists that the Florida Supreme Court denied him a constitutional right of access to courts by rejecting the petition that he submitted in May of 1994. In addition, Schwarz renews his...