In
1948 the Florida State Bar Association resurrected its petition to the
Florida Supreme Court to integrate by court rule the Bar of the State
of Florida. Integration of the bar means, that the Bar which was under
the State of Florida, was turned into an association, membership in which
was required by all the attorneys practicing law in Florida. It was a
scheme to wrest control from the Legislature and to place the attorneys
under the exclusive jurisdiction of the Florida Supreme Court.
The
Committee on Bar Integration of the Florida State Bar Association made
a complete roster of the Bar of the State of Florida and found that it
contained the names of 2,700 lawyers. The Committee sent a letter with
ballots enclosed to each of these attorneys, requesting that they vote
on the issue of integrating the Bar of the State of Florida. The lawyers
were informed that it was not necessary for them to sign the ballot. The
ballots were returnable to the Florida State Bar Association. The lawyers
were informed that, if the vote is favorable then the Committee will file
a petition with the Florida Supreme Court asking to integrate the Bar
by court rule. The letter further stated that upon approval of the petition
each lawyer will be required to belong to the integrated bar, to pay to
the Treasurer of the integrated Bar $5.00 annually and that the Bar will
be governed by a Board of Governors.(5)
Of
the 2,700 ballots the Bar Association mailed to the attorneys, 1,631 were
voted and returned. Of the returned ballots 1,131 voted in favor and 500
voted against integration. Thus, less than half of all the lawyers or
42% purportedly voted in favor of integration. The court rejected any
challenge by opponents, ruling that the "referendum was fairly conducted". (6) The court abolished legislative control over the attorneys,
by declaring the integration of the bar to be a judicial and not a legislative
function. The court integrated the bar by rule of court, without any legislation,
based on an alleged "inherent power". The court said it possessed "inherent
power" because it was a court and further claimed that,
"Under
our form of government it is the right that each department of government
execute the powers falling naturally within its orbit when not expressly
placed or limited by existence of similar power in one of the other
departments."
In
ousting the legislative control over the attorneys, the Supreme Court disregarded
its prior decision made eleven years before in 1938 that, the admission
and discipline of attorneys rested with the Legislature, and that legislative
control could not be ousted by rule of court.
While integration
was promulgated under the lofty ideals of "improving the administration
of justice" and "public service" the opponents maintained that integration
was in defense of the "accusations that the bar is not worthy of public
trust". The Florida Supreme Court took the position that to ward off these
accusations it needed a bar in which all practicing attorneys were members
because,
"We
think that this duty devolves on the bar as a whole rather than
on a minority organization to it. The assault on our institutions,
which the bar is expected to take the leading role in challenging,
also requires the impact of the full man power of the bar."
Yet
another objective was that, a mandatory bar would take over the many programs
that was burdensome on a minority of attorneys in a voluntary bar, and
to spread over the cost of these activities with mandatory dues. The programs
of the Florida State Bar Association, were taken over by the integrated
Bar, which was appended to the Florida Supreme Court. All practicing attorneys
were required to be members in the Bar Association and to assume its programs
and objectives. The court was of the opinion that "integration"
"provides
a fair and equitable method by which every lawyer may participate
in and held to bear the burden of carrying on the activities of
the bar instead of resting that duty on a voluntary association
composed of a minority membership."
The
financial responsibility was spread over all the attorneys. A mandatory
"membership fee" was imposed by the Florida Supreme Court on all the attorneys
in the Bar Association "to support the bar integration activities". The
court acknowledged that only the Legislature has the power to impose a
tax. The court rationalized that the membership fee was not a tax but,
an exaction for regulation, whereas the purpose of tax is revenue. Justice
Barns in his dissent responded that the judiciary cannot lawfully levy
a tax by whatever name it may be called.
In
1950 the Bar Association was renamed the Florida Bar. In 1951 the Legislature
by Florida Statute delegated to the Florida Supreme Court the authority
to regulate admission to the bar. In 1956, House Joint Resolution 810
was approved by the electorate amending the Florida Constitution Article
V § 23, to give the Supreme Court exclusive authority to regulate the
practice of law, the admission and discipline of attorneys. Article V
§ 23 was amended in 1972 and appears in the current Florida State Constitution
as Art. V § 15 stated as follows:
"The
Supreme Court shall have exclusive jurisdiction to regulate the
admission of persons to the practice of law and the discipline of
persons admitted."
The admission of attorneys
to practice law is within the authority of the Florida Board of Bar
Examiners and the discipline of the lawyers is under the Florida Bar.
Both of these agencies were created under rules of the Florida Supreme
Court, without any participation by the Legislature. The Florida Bar
is often referred to by the legal profession as a private Bar.
Since the judges of the Supreme Court
and the Board of Governors, who govern the Florida Bar, are all lawyers
and members of the Florida Bar, it is a system of lawyers regulating
lawyers. Furthermore, since the judges of the Supreme Court are appointed
and the lawyers of the Board of Governors are private attorneys, it
is a system without any representation by the people through their elected
officials. Such absolute power was never enjoyed by the attorneys prior
to 1949, when by judicial fiat, public participation through their legislative
process was eliminated.
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