The Florida Bar v. Moses, 53305

• Decision Date: 17 January 1980
• Docket Number: No. 53305,53305
• Citation: 380 So.2d 412
• Parties: 109 L.R.R.M. (BNA) 2509 THE FLORIDA BAR, Complainant, v. Edward P. MOSES, Respondent.
• Court: Florida Supreme Court

Page 412

380 So.2d 412

109 L.R.R.M. (BNA) 2509

THE FLORIDA BAR, Complainant, v. Edward P. MOSES, Respondent.

No. 53305.

Supreme Court of Florida.

Jan. 17, 1980.

Rehearing Denied March 24, 1980.

Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, John A. Weiss and H. Glenn Boggs, Asst. Staff Counsels, and Cass D. Vickers, Bar Counsel, Tallahassee, for complainant.

Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, for respondent.

Jim Smith, Atty. Gen., J. Ken Tucker, Deputy Atty. Gen., William C. Sherrill, Jr., Chief Trial Counsel, and Jerome W. Hoffman, Sp. Asst. Atty. Gen., Tallahassee, for amicus curiae.

Sidney L. Matthew and Patricia A. Renovitch, Gen. Counsel, Tallahassee, for Florida Ed. Ass'n/United, AFT, AFL/CIO, amicus curiae.

PER CURIAM.

This is an original proceeding from The Florida Bar on a joint petition which requests a determination of whether certain conduct constitutes the practice of law and whether, if it does, it is the unauthorized practice of law in violation of article V, section 15 of the constitution. Put another way, the question here is whether the legislature (or an agency) can approve by law (or by rule) in certain administrative fori of the state conduct which, in the absence of legislative authorization, would constitute the practice of law. We have jurisdiction. Article V, section 15, Florida Constitution; State ex rel. The Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962).

The Florida Bar (Bar) and Edward P. Moses (respondent) have filed a Joint Petition and Stipulation to Facts. Specifically, they ask us to determine whether respondent's appearance in a representative capacity before a hearing officer of the Division of Administrative Hearings (DOAH) in unfair labor practice (ULP) proceedings constituted the unauthorized practice of law. The parties concur that respondent has never been licensed to practice law in Florida. He is a general management consultant specializing in educational labor relations. Education Services Bureau, Inc., a corporation hired by the Escambia County School Board (Board) employed respondent in his capacity as a labor relations specialist from November 1974 until November 1975. At that time respondent went to work for the Board as a non-paid employee and continued as such until April 1976. During his tenure with Educational Services Bureau, Inc., respondent participated as the Board's negotiator in collective bargaining between the Board and the Escambia Education Association (Union). In the course of these proceedings, the Union filed ULP charges with the Public Employees Relations Commission (PERC). This led PERC to charge the Board with engaging in ULP by 1) engaging in improper surveillance of picketing school teachers; 2) not bargaining in good faith; and 3) engaging in improper dues scheduling practices.

Respondent represented the Board at the ULP hearing on these charges in December 1975, pursuant to a rule adopted by PERC to authorize lay representation in its proceedings which states Any party shall have the right to appear at any hearing in person, by counsel, or by other representative. . . . Fla.Admin.Code Rule 8H-4.13(a).

This rule was adopted under the authority conferred by section 120.62(2), Florida Statutes (1975), of Florida's Administrative Procedure Act (APA), which provides:

Any person compelled to appear, or who appears voluntarily, before any hearing officer or agency in an investigation or in any agency proceeding has the right, at his own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives.

The Joint Petition and Stipulation indicates his conduct before the DOAH officer included:

1) Presentation of evidence;

2) Examination and cross-examination of witnesses;

3) Voir Dire;

4) Making both written and oral motions and arguing same;

5) Objecting to evidence and arguing thereon;

6) Making decisions affecting important legal rights and obligations of his clients;

7) Filing written pleadings.

On the final day of the hearings and before the Board presented its case, a member of The Florida Bar appeared as co-counsel with respondent and moved for a continuance. When this motion was denied, the attorney announced the Board would not proceed further and the hearing was concluded. As a result of these proceedings, PERC ruled in favor of the Union and ordered the Board to cease and desist those actions which gave rise to the ULP charges. That decision was affirmed on appeal. School Board of Escambia County v. Public Employees Relations Commission, 350 So.2d 819 (Fla. 1st DCA 1977).

The Bar does not seek to have respondent held in contempt in light of his reliance on PERC's regulation, instructions from the DOAH hearing officer, and respondent's cooperation in bringing this petition to ascertain the proper role of labor consultants in unfair labor practice proceedings. Amici curiae, the attorney general, and the Florida Education Association have also filed briefs in this case.

Whether Representation Before PERC Constitutes the Practice of Law

The difficulty inherent in defining the practice of law was noted recently, in The Florida Bar v. Brumbaugh, 355 So.2d 1186, 1191 (Fla.1978), where we reiterated the broad guidelines by which each person's conduct must be gauged:

. . . if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law. Sperry, supra, 140 So.2d at 591.

The Bar contends that ULP charges affect important legal rights surrounding the management-union relationship. We agree. These are serious allegations which mandate a hearing upon the finding of a prima facie violation. Section 447.503(3)(a), Florida Statutes (1975). As a result of evidence produced at the hearing PERC may enter a cease and desist order or require positive action, including reinstatement of employees with or without back pay. Section 447.503(4)(a), Florida Statutes (1975). These orders are subject to appellate review in the district courts of appeal. Section 447.503(5), Florida Statutes (1975). They are enforceable by petition to the district courts which may also provide injunctive relief based on the agency action. Section 447.503(6)(a), Florida Statutes (1975). In the instant proceeding PERC in fact ordered the Board take affirmative steps and the order was affirmed by the First District Court of Appeal. School Board of Escambia County v. PERC, supra. Respondent's actions as the Board's representative affected the progress and outcome of the hearing and thus affected the Board's legal rights under Chapter 447.

Next, the Bar contends that because of the applicable procedures, representatives at ULP hearings must possess legal skill and knowledge beyond that of the average citizen in order to protect a party's legal rights. This hearing was governed by the APA, chapter 120, Florida Statutes (1975). Under the provisions of the APA, where substantial interests of a party may be determined by an agency and there are disputed issues of material fact, a so-called "formal proceeding" is required. Section 120.57(1), Florida Statutes (1975). The Bar has detailed at great length the procedural similarities between formal administrative hearings and a civil action in the judicial system. While it is true that these proceedings are comparable to court proceedings in many ways, State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and have been described as "trial-type hearing(s)," McDonald v. Department of Banking and Finance, 346 So.2d 569, 578 (Fla. 1st DCA 1977), the law is well settled that they are not actions at law in the judiciary. Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973) (on rehearing). Furthermore, our focus must be on the character of the services rendered and acts performed rather than the nature of the agency or forum. The Florida Bar v. Sperry, supra.

A cursory examination of respondent's activities reveals what appear to be the classic functions of an attorney. To some extent these actions were governed by procedures outlined in Florida's APA which ostensibly require some legal knowledge to understand and apply. See, e. g., sections 120.57(1)(b), 2a, c, Florida Statutes (1975). Nonetheless, the draftsmen of the 1974 revision of chapter 120 clearly intended to increase flexibility and informality in the administrative process by expanding public access to agency rationale and action, consistent always, however, with minimal administrative due process rights for those whose rights are affected by agency action. Reporter's Comments on the Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at pp. 3, 5.

Under the APA, a party or its representative must have some knowledge of jurisdiction and supporting legal authority to file the initial notice. Section 120.57(1)(b)2b, Florida Statutes (1975). Similarly, one must be prepared to apply and interpret the Florida Rules of Civil Procedure as they relate to discovery. Section 120.58(1)(b), Florida Statutes (1975). The judicial rules of evidence may not be in full force, but the concept of hearsay must be understood as its use is limited to corroboration "unless it would be admissible over objection in civil actions." Section 120.58(1)(a), Florida Statutes (1975). In obvious recognition of the legal nature of the processes and their ramifications, the APA itself extends authority for party representation by non-lawyers only to "qualified" lay...