State ex rel. Florida Bar v. Sperry, No. 31411

CourtUnited States State Supreme Court of Florida
Writing for the CourtSherwood Spencer, Hollywood, J. Lewis Hall, Tallahassee, Donald J. Bradshaw, Inverness; O'CONNELL; ROBERTS
PartiesSTATE of Florida ex rel. THE FLORIDA BAR, Petitioner, v. Alexander T. SPERRY, Respondent.
Decision Date04 April 1962
Docket NumberNo. 31411

Page 587

140 So.2d 587
133 U.S.P.Q. 157
STATE of Florida ex rel. THE FLORIDA BAR, Petitioner,
v.
Alexander T. SPERRY, Respondent.
No. 31411.
Supreme Court of Florida.
April 4, 1962.
Rehearing Denied May 16, 1962.

Sherwood Spencer, Hollywood, J. Lewis Hall, Tallahassee, Donald J. Bradshaw, Inverness, J. Nixon Daniel, Jr., Pensacola, and John H. Gunn, Miami, as and constituting the Special Committee of the Board of Governors of The Florida Bar on Patent Attorneys, Unauthorized Practice of Law, for The Florida Bar, petitioner.

Harry Kemker, Tampa, for respondent.

O'CONNELL, Justice.

In this cause The Florida Bar, by petition filed in this Court, seeks to invoke the

Page 588

original jurisdiction of this Court asking that we require the respondent to show cause why he should not be held in contempt of this Court for the unauthorized practice of law, and further that we enjoin respondent from further unauthorized practice of law in this state.

Basically the petition alleges that the respondent, Alexander T. Sperry, is engaged in the unauthorized practice of law, in violation of Section 2, Article 2, Integration Rule, The Florida Bar, 31 F.S.A., in that although he is not a member of The Florida Bar, hereinafter referred to as the Bar, he nevertheless holds himself out to the public as a patent attorney, maintains an office in Tampa, Florida on the door of which appear the words 'Patent Attorney', and is so listed in the telephone directory of the City of Tampa and on the directory in the lobby of the building in which his office is located. Further, the petition alleges that the respondent represents Florida clients before the United States Patent Office, hereinafter referred to as Patent Office; has rendered opinions as to patentability and opinions as to whether or not patent rights are being infringed and are the subject of a cause of action in the courts; has prepared various legal instruments, including contracts, applications and amendments to applications for letters patent, and filed same in the Patent Office in Washington, D. C.; and has prepared briefs and authorities with points of law relating thereto.

Respondent filed an answer to this petition in which he admitted that he was not a member of the Bar, and admitted all the other allegations thereof with the exceptions or qualifications which follow.

As to advising clients on infringement of existing patents, respondent stated he did so only on one occasion and that he did so as a part of his work in filing an application for a patent for a client. As to patent license agreements he alleged that he prepared such only in rough and never in finished form.

He denied that he had prepared any other contracts and denied that he had prepared briefs and authorities with points of law relating thereto.

In defense he also asserted, among other things, that he is duly admitted to practice before the Patent Office, having been admitted in 1928, and under the rules and regulations of that office he is authorized to use the nomenclature 'Patent Attorney' even though he is not an attorney-at-law in any jurisdiction; the acts performed by him do not constitute the unauthorized practice of law; and that the injunctive relief prayed for would, if granted, deprive him of the ability to earn a living and deprive him of property without due process of law under the Constitution of Florida and the Fifth and Fourteenth Amendments to the United States Constitution.

The matter has been submitted on the pleadings. The material facts being admitted there is no need for the taking of testimony.

While not raised by either party the first question which we feel necessary for decision is whether this matter is within the original jurisdiction of this Court.

In 1956 the electorate of this state adopted a revised Article V of our state constitution. Section 23 of this new article gives this Court 'exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted.'

Quite obviously this matter now before us does not involve either the admission of an applicant to the Bar or the discipline of one already admitted. The question then is whether the authority imposed in Section 23, Article V, also carries with it the power to prevent the practice of law by those who are not admitted to the practice. We think that it must and it does for if it does not the express power to control admissions would be meaningless.

This identical question was raised in a similar case in West Virginia State Bar v. Earley, W.Va.1959, 109 S.E.2d 420. We

Page 589

adopt as ours the words that court spoke in disposing of the question, at 109 S.E.2d p.440, to-wit:

'* * * It would indeed be an anomaly if the power of the courts to protect the public from the improper or unlawful practice of law were limited to licensed attorneys and did not extend or apply to incompetent and unqualified laymen and lay agencies. Such a limitation of the power of the courts would reduce the legal profession to an unskilled vocation, destroy the usefulness of licensed attorneys, as officers of the courts, and substantially impair and disrupt the orderly and effective administration of justice by the judicial department of the government; and this the law will not recognize or permit.'

The express power contained in our state constitution makes unnecessary any discussion of the inherent power of the courts to regulate the practice of law and those who engage in it. Were it necessary to do so there is abundant authority to support the view that the courts do have such power. Petition of Florida State Bar Ass'n, 1938, 134 Fla. 851, 186 So. 280; Chicago Bar Ass'n v. Kellogg, 1949, 338 Ill. App. 618, 88 N.E.2d 519; In re Baker, 1951, 8 N.J. 321, 85 A.2d 505; West Virginia State Bar v. Earley, 109 S.E.2d 420, supra.

The next question then is whether this Court may enforce its authority in such matters by either or both contempt proceedings and injunction.

The unauthorized practice of law constitutes a contempt of court. West Virginia State Bar v. Earley, supra; In re Baker, supra. See also Cases Noted, 6 Miami Law Quarterly 606.

In Hargett v. Lake, Ky.1957, 305 S.W.2d 523, as in this case before us, a proceeding was brought originally in the appellate court seeking to have a person held in contempt and appropriately punished for practicing law without license or right. That court adjudged the person involved to be in contempt and ruled that '* * * he is permanently enjoined from engaging in the practice of law.'

Aside and apart from these decisions which support the view that a court may invoke contempt and injunctive powers to enforce its authority in such matters, this Court has constitutional authority for so doing.

Sec. 4(2), Art. V, Fla.Const., F.S.A. gives this Court the authority to 'issue all writs necessary or proper to the complete exercise of its jurisdiction.' Having held above that the authority to regulate the practice of law by those not admitted to the Bar is vested in this Court under the cited section of the constitution, it follows that the power to issue writs necessary to enforce its rules and orders applies to matters affecting the practice of law as much as to any other rule or order within its jurisdiction to enter.

The next question for decision is whether or not the acts committed by the respondent constitute the practice of law in this state. If this is answered in the negative our work is at an end. However if we find such acts to amount to the practice of law then we must determine whether, respondent having been licensed to practice before it by the Patent Office, this state has the power to deny the respondent the right to so practice in this state.

This Court has not previously been called upon to decide whether the activities charged against the respondent, i. e. the work done by a patent attorney, constitute the practice of law if done in this state.

In Petition of Kearney, Fla.1953, 63 So.2d 630, 631, this Court said that:

'It follows that those who hold themselves out to practice in any field or phase of law must be members of the Florida Bar, amenable to the rules and regulations of Florida Courts. * * *' (Emphasis added)

The Bar here urges that the practice of patent law is certainly a field or phase of

Page 590

law within the purview of this Court's opinion in the Kearney case.

There are however differences between the Kearney case and this one which require that we not treat it as dispositive of this case.

The petitioner Kearney was duly admitted to practice before the Supreme Court and the Tax Court of the United States and before the Treasury Department of the United States. He was not a member of The Florida Bar. He sought permission to practice in Florida as 'Federal Tax Counsel' with his court appearances to be limited to the federal courts and the departments above mentioned. This Court, in proceedings originating before it as in this case, ruled that the permission to practice in this state in the manner contemplated was not governed exclusively by the rules of the United States courts and departments; rather, it held that such would constitute the practice of law in this state and Kearney in order to do so would have to become a member of The Florida Bar, subject to the jurisdiction of this Court. In its opinion this Court cited Sec. 2, Integration Rule, supra, stressing that said rule provides that no person shall engage in any way in the practice of law in this state unless he is an active member of The Florida Bar.

In the Kearney case this Court obviously started with the premise that the activities which Kearney wished to pursue in this state constituted the practice of law. This Court did not discuss the question other than to state that the American Bar Association and many states hold that practice before the Tax Court and the Treasury Department may constitute the practice of law, citing decisions in...

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70 practice notes
  • Ippolito v. State of Fla., No. 92-880-Civ-T-99.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 14, 1993
    ...law, however, is not a privilege or immunity within the meaning of the Fourteenth Amendment. State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 589 (Fla.1962), vacated on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963); see also Florida Bar re Advisory Opinion—Non Lawyer ......
  • Sperry v. State of Florida the Florida Bar, No. 322
    • United States
    • United States Supreme Court
    • May 27, 1963
    ...that neither federal statute nor the Constitution of the United States empowered any federal body to authorize such conduct in Florida. 140 So.2d 587. In his petition for certiorari, petitioner attacked the injunction 'only insofar as it prohibits him from engaging in the specific activitie......
  • R. J. Edwards, Inc. v. Hert, Nos. 40338
    • United States
    • Supreme Court of Oklahoma
    • November 28, 1972
    ...irreparable damage unless the defendants are enjoined from engaging in the unauthorized practice of law. In State v. Sperry (Fla.), 140 So.2d 587, 595, it was 'The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently mi......
  • Dressel v. Ameribank, Docket No. 119959, Calendar No. 1.
    • United States
    • Supreme Court of Michigan
    • June 24, 2003
    ...is shared by many other jurisdictions. Arkansas Bar Ass'n v. Block, 230 Ark. 430, 323 S.W.2d 912 (1959); State of Florida v. Sperry, 140 So.2d 587 (Fla., 1962); Fought & Co., Inc. v. Steel Engineering and Erection, Inc., 87 Hawai'i 37, 951 P.2d 487 (1998); Iowa Supreme Court Comm. on Unauth......
  • Request a trial to view additional results
68 cases
  • Ippolito v. State of Fla., No. 92-880-Civ-T-99.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • June 14, 1993
    ...law, however, is not a privilege or immunity within the meaning of the Fourteenth Amendment. State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 589 (Fla.1962), vacated on other grounds, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963); see also Florida Bar re Advisory Opinion—Non Lawyer ......
  • Sperry v. State of Florida the Florida Bar, No. 322
    • United States
    • United States Supreme Court
    • May 27, 1963
    ...that neither federal statute nor the Constitution of the United States empowered any federal body to authorize such conduct in Florida. 140 So.2d 587. In his petition for certiorari, petitioner attacked the injunction 'only insofar as it prohibits him from engaging in the specific activitie......
  • R. J. Edwards, Inc. v. Hert, Nos. 40338
    • United States
    • Supreme Court of Oklahoma
    • November 28, 1972
    ...irreparable damage unless the defendants are enjoined from engaging in the unauthorized practice of law. In State v. Sperry (Fla.), 140 So.2d 587, 595, it was 'The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently mi......
  • Dressel v. Ameribank, Docket No. 119959, Calendar No. 1.
    • United States
    • Supreme Court of Michigan
    • June 24, 2003
    ...is shared by many other jurisdictions. Arkansas Bar Ass'n v. Block, 230 Ark. 430, 323 S.W.2d 912 (1959); State of Florida v. Sperry, 140 So.2d 587 (Fla., 1962); Fought & Co., Inc. v. Steel Engineering and Erection, Inc., 87 Hawai'i 37, 951 P.2d 487 (1998); Iowa Supreme Court Comm. on Unauth......
  • Request a trial to view additional results
2 firm's commentaries
  • Florida Supreme Court Is Closely Divided In Unauthorized Practice Of Law Decision
    • United States
    • Mondaq United States
    • November 19, 2021
    ...concluded that TIKD's conduct constituted UPL under Florida law. Using the framework applied in State ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), vacated on other grounds by 373 U.S. 379 (1963), the majority concluded that TIKD had engaged in UPL due to what the majority cons......
  • Florida Supreme Court Is Closely Divided In Unauthorized Practice Of Law Decision
    • United States
    • Mondaq United States
    • November 19, 2021
    ...concluded that TIKD's conduct constituted UPL under Florida law. Using the framework applied in State ex rel. Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), vacated on other grounds by 373 U.S. 379 (1963), the majority concluded that TIKD had engaged in UPL due to what the majority cons......

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