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The laws and rules governing
The Florida Bar were adopted under authority of the Florida Supreme
Court the so-called Integration Rule s titled The Rules Regulating The
Florida Bar. The Rules of Discipline governing the conduct of attorneys
are also adopted by Florida State Supreme Court on recommendations of
the Board of Governors.
The rule making authority of the Florida
Supreme Court under Article V Section 2 of the Florida Constitution
is limited to the courts, to adopt rules of practice and procedure for
the courts and to adopt rules for the administrative supervision of
all courts. (21) As
discussed above, The Florida Bar is not a court nor is it a state agency
and so it cannot be said that it comes under the Supreme Court's rule
making authority for the courts.
The Florida Constitution defines the authority
of each branch of state government. The legislative branch has the purpose
of determining policies and programs and reviewing program performance.
The executive branch has the purpose of executing the programs and policies
adopted by the Legislature and of making policy recommendations to the
Legislature. The judicial branch has the purpose of determining the
constitutional propriety of the policies and programs and of adjudicating
any conflicts arising from the interpretation or application of the
laws.
(22) Thus, the
lawmaking power is vested only in the Legislature.
(23)
As the elected representatives of Florida
citizens, the Legislature sets the standards for the regulation of all
professions with the exception of attorneys. Under administration of
the Executive branch, the State of Florida regulates all other professions
in the State. The Department of Business and Professional Regulation
(DBPR) regulates under its various divisions i.e. architects, accountants,
real estate agents. The Department of Health regulates the medical profession
i.e. doctors, dentists. The Legislature is required to announce adequate
standards to guide these agencies.
Although the agencies are given authority
to make and adopt rules, a specific statute to implement the rules is
required. So, that an agency may adopt only those rules that implement,
interpret or make specific the particular powers and duties granted
by a statute created by the Legislature.
(24) Based on these statutory provisions the Department of
Business and Professional Regulation and Department of Health, set the
standard for admission to practice, oversee professionals admitted to
practice, discipline professionals who violate established rules and
ethical standards, provide for continuing education and discipline those
practicing without a license.
As to The Florida Bar, it is the Integration
Rules adopted by the Florida Supreme Court, which set forth the qualification
for membership in the Bar, the composition of the Board of Governors
and the duties and authority of the Board. The Board acts under supervision
of the Supreme Court. The rules cover the actions the Board may take
to accomplish purposes of The Florida Bar, the obligation of the Board
to set up a budget for The Florida Bar, the Board's exclusive control
over the Bar funds, property and assets of the Bar, the Board's authority
to create committees, sections divisions of the Bar and so on. In view
of the fact that these so-called rules create rights and duties and
are clearly not merely procedures to enforce a right, the Bar rules
would not come under Article V rule making authority on that additional
ground.
Furthermore, the rules governing The Florida
Bar, are adopted by the Supreme Court without any public debate in the
sense that surrounds legislative issues. The American Bar Association
(ABA) a national association of private attorneys is the forum in which
model codes of professional and judicial conduct are drafted and debated,
and which is then adopted, sometimes verbatim or modified by the courts
of the fifty states. (25)
While the Florida Supreme Court is arguing
its doctrine of "independence of the judiciary" and "separation of powers"
in support of its policy of legislative non-involvement in the judicial
branch, it is using exclusive legislative powers to create laws and
rules to accomplish the objectives of The Florida Bar and Board of Bar
Examiners.
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