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Throughout
English and American history, the admission and discipline of lawyers
has never been within the exclusive authority of the courts. The British
Parliament, colonial assemblies and state legislatures involved themselves
heavily in setting admissions and behavioral standards for lawyers through
the police power of the sovereign. Florida legislative bodies have set
standards for the admission of attorneys and for the practice of law since
Florida was organized as a territory. Lawyer regulation by legislative
bodies survived the transition to statehood and to a constitutionally
based tripartate system of government. Florida became a state of the Union
in 1845. For more than a hundred years after Florida attained statehood,
as in all the other states of the United States and in England, the courts and
the legislatures shared the power to regulate the practice of law.
(2)
In
the first part of the twentieth century the attorneys in Florida were regulated under
the State Board of Law Examiners created under Legislative Act of 1925,
Chapter 10175. The act granted the board the power to prescribe and enforce
rules for admission, retained the diploma privilege for Florida law school
graduates and eliminated the ability of out-of-state lawyers to avoid
the bar exam. To practice law, the person first had to obtain a certificate
of authority from the Board. The Supreme Court by rule or order prescribed
the subjects to be studied by applicants for admission to the practice
of law, on which an examination was then conducted.
The
fee for admission to the bar was set at $25.00. The moneys were to be
used to defray the expenses of the Board and if the receipts exceeded
the expenses the surplus was to be paid into the State Treasury. The Secretary
was required to keep an official register of all persons admitted to practice.
The Board was also in charge of unauthorized practice of law.
The
1925 act further declared that attorneys were "deemed officers of the
Court for the administration of justice, and were amenable to the rules
and discipline of the Court in all matters of order or procedure not in
conflict with the Constitution and laws of this state." The act granted
the Board the power to prescribe rules of professional conduct and ethics.
The Board also had the power to hear complaints of violations of the rule
and of conduct amounting to fraud, deceit, immorality or sharp practice.
Finding evidence of a violation, the Board had to refer the matter to
the appropriate state attorney, who then was authorized to proceed with
a disciplinary action in the circuit court.
The
integrated bar movement, with its aim to place sole control of the admission
and discipline of the attorneys under the judicial branch of government
was initiated in this country in 1914 by the American Judicature Society.
Herbert Feibelman, a prominent lawyer writing in 1937, attacked the movement
as an attempt to wrench control over the bar, and the bench from the people
and their representatives. (3) He claimed this was in response to the goal of bar leaders to make the
bar sufficient unto itself and to place it in a position of power, where
even the judiciary may be nominated if not actually appointed by lawyers,
who will, under perfect bar integration, owe their licenses and their
practice to the bench of their choosing. He feared that the movement for
an integrated bar arose not from a desire to administer common justice,
but was a campaign founded on economic reasons, the economic welfare of
the private voluntary bar itself.
The placing of control
over the lawyers into the judicial branch was accomplished in the various
states either through legislative acts or by constitutional amendment.
In most states judges who are "lawyers in black robes" are required to be
members of the Bar.
In Florida which was the case in many other
states, the movement to place the attorneys under the sole control of the
judiciary arose from a private bar association and without any public
participation. In
1937 the Florida State Bar Association, a private, statewide volunteer
organization of attorneys, petitioned the State Supreme Court to assume
full control over admission to the bar, the disbarment for unprofessional
conduct and the regulation of unauthorized practice of law. The Association
based the court's authority over these functions on "inherent power" of
which they claimed the courts cannot be deprived by legislative fiat.
(4)
In
1938 the State Supreme Court denied the Florida State Bar Association's
petition for integration of the bar on the ground that,
"the
Legislature has for more than 100 years regulated the matter of admission
to the bar and the disbarment of attorneys for unprofessional conduct.
The courts of the Legislature has been acquiesced in by the people,
has been resisted by no one, and has not only been acquiesced in,
but repeatedly approved by the courts."
The court concluded that,
"the
integration of the bar, would amount to an attempted repeal of the
acts of the Legislature prescribing requirements for admission to
the bar and disbarring for unprofessional conduct. If it would be
done, it would be unbecoming and improper to attempt the results sought
in this way. If a change of policy is to be effected, it should be
done in orderly fashion after the legislature has withdrawn from the
field."
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