The Florida Bar is Corrupt
Bob
By: Bob Sherin, non-lawyer
15805 SW 101 Ave., Miami, FL 33157-1630, (305) 253-5006,
she...@bellsouth.net
The investigation was heralded by letter under seal of a Florida agency
in which a set of questions was propounded. The recipient shook with
fear because at maximum he was facing a $1000 fine and year in jail, at
minimum public humiliation by inclusion on a list of suspected law
breakers. Probable cause and charges were missing.
The suspect, opting against secrecy, was forthcoming with every detail
of his connection to law and courts. It all started when he was barely
young enough to comprehend the grand scheme of things. At age 9 during
long walks along the beach, his Dad, a Boston attorney, described in
hallowed terms the U.S. Constitution, teaching how men like Chief
Justice John Marshall filled in the spaces with such decisions as, the
judiciary has the last word.
The Florida Bar, acting as if it had received no response, noticed the
suspect that his file had been turned over to a "Detective Jok." A
detective? To investigate what? Divorce, sexual history? The Bar
reminded him of "his legal responsibilities" though cast no light
on the investigation. Then, more bad news: "The Committee " was
taking jurisdiction of the matter, he learned. The specter of facing a
fishing expedition loomed like a run away train. He started seeing a
psychiatrist.
Not about authentic policing, this is a story of interference with law
abiding citizens utilizing legitimate mechanisms of government like the
Administrative Procedure Act and using them precisely as prescribed by
law. This is an expose of the underside of Unlicensed Practice of Law
(UPL) and how it is used as a stranglehold on the public for the
benefit of the legal profession. If you're not a Bar member,
you'll be thoroughly illuminated. If you're a Bar member, you may
find fault with this op-ed, but this writer challenges you to refute
it. Better, help change the system.
Beyond its useful functions, the Bar attacks the innocent at will,
throwing due process to the wind while keeping its victims continually
captive. It preys on citizens whom it deems a threat to its welfare,
not the public's. Yet they are people who do not possess a
scintilla of its members' skill and pose no threat. The Bar goes so
far as threatening the public that writing a letter for someone else is
an offense it will prosecute, that is, unless the writer is a Bar
member.
It hands out bogus Cease and Desist Affidavits and opposes any attempt
at declaratory relief in the courts. While pontificating about serving
as the public's protector, it acts at cross purposes behind the
scenes. When challenged and lacking legal position, it argues
gibberish. It engages in conflicts of interest with sitting judges.
It is loud on directives but deaf to responses. It juggles UPL records
unilaterally to look better at the suspect's expense, records
advertised to the public for inspection. Its actions defy its moral
and ethical Codes and Cannons, not to mention the Golden Rule.
Who among you, honorable lawyers, would permit a published process
against a client to proceed without probable cause or allegations?
Lawyers on the outside of the process may very well lack privity and,
no doubt, some are wholly against these activities, but how many of you
have taken an active stand? Who's in charge up there? Arrogant,
heavy handed, threatening, The Bar defames every innocent UPL victim
that it investigates. For guilty or innocent, victims still wind up
listed in its rogue's gallery of UPL suspects without any avenue of
relief.
At the insistence of the Bar, UPL has been made a 3rd degree felony by
the Florida Legislature, on a par with Aggravated Assault and Child
Abuse. Running contrary to statistical findings, the legislation gives
Bar members unchecked power to hold felony punishment over the heads of
the public.
According to a national study published in the Stanford Law Review,
only 2 percent of UPL complaints are brought by consumers. The
lion's share are made by lawyers and state bar associations, and in
such matters The Florida Bar is the worst or among the worst offenders
of due process in the nation.
This ongoing, informal, formal and editorial effort ought not be
necessary. The Florida Bar bets that you will remain unmoved by this
plea, implicitly consenting to its tyranny. The Florida Bar must be
stopped now, because when one citizen is deprived of liberty, we all
lose ultimately.
Bob
response. Listing real name, address and telephone number, I accuse
The Florida Bar of corruption, detailing the counts.
What are you lawyers thinking? Are you so dispassionate that you can
witness injustice without lifting a finger. Or is the fraternity so
driven from the top that you're afraid that any kind words might impact
your career adversely? Is that what the profession of law is all
about?
When The Florida Bar entered my life three years ago, shock gave way to
complete cooperation. Here I, an honest non-lawyer, had the pros
guiding me. I was actually dumb enough to bring with me to meeting at
their offices my best friend, who I was properly representing before an
admin
Lowell Steiger, Esq., Beverly Hills, Ca
Can't comment on your editorial unless I know the factual situation
behind the charges. Right now all I am reading are your conclusions
(which may be absolutely correct) but no analysis of the underlying
charges which brought you in front of the state bar in the first place.
Those facts would be helpful in my making a more thorough, and
informed, legal analysis of your situation. Also, what was the final
outcome?
Lowell Steiger
nospam
On 17-Apr-2005, "Bob" <She...@bellsouth.net> wrote:
> What are you lawyers thinking? Are you so dispassionate that you can
> witness injustice without lifting a finger. Or is the fraternity so
> driven from the top that you're afraid that any kind words might impact
> your career adversely? Is that what the profession of law is all
> about?
I remember in pre-med thinking the same thing. The medical system is no
better. Once I figured out what the score was I changed my major. If I took
the other fork in the road I would have no choice but find a way to deceive
myself. The system turns lawyers into whores just as medical school does.
The reason they have no kind words is they're ridden with conscious as well
as unconscious guilt. The more guilty the more money they need to make it
look like they're all right. It's a vicious cycle.
Bob
so smart, surely way beyond me, and your analysis is on the money. It
is the same analysis with which I'm being flooded by friends from many
fields.
Of course, we can't talk law until first establishing a set of facts.
All right. Let me follow the legal education I got from my Dad.
With ADD but not knowing it, law was way over my head early in life.
So I went into business. But what happened then? Business took me
straight back to law, as problem after problem needed resolution:
collections, contract disputes, labor troubles, in short a host of
everyday legal problems active entrepreneurs face.
Happily I collected in Small Claims, doing executions as well. I found
it fun to exercise a system that I respected and thought was miles
beyond me.
Then a bomb fell. The Florida Department of Revenue laid an assessment
on my one-man corporation in 1976 of $45,000 for alleged back sales
taxes I should have collected on my keypunch services.
Panicked, I searched in every direction for a way out. Lawyer after
lawyer told me the case was unwinnable because the tax had been
codified in Legislative Rules with proper delegation from the Florida
Legislature. The bank withdrew my financing, my lights went out, my
Dad rushed to find authentic paper to encumber my house with a valid
second mortgage to make it judgement proof.
Everyone thought I was doomed. I had no choice but retreat to my house
and figure out a strategy. My Dad thought I was nuts when I proposed
pursuing my own case administratively. Said he: "What do you think
you're going to do, sue the State of Florida?" "Yes," was my reply. At
the time Florida's Division of Administrative Hearings (DOAH) was only
one year old and it allowed "qualified representatives" without doing
any qualifying -- which was later to change with Bar action. I learned
that in Florida there was parallel jurisdiction over my subject-matter
of the judiciary and the administrative. You could go either way, but
not both ways. Each could be appealed to the same appellate courts.
At the same time, GT&E had the same issue and their lawfirm, whose
beautiful pleading I copied, went into the judiciary.
My election, an important factor, turned out to be the wiser by far for
many reasons.
Researching at the University of Miami Law library, where I hung out, I
began to see a glimmer of hope. Embracing the issue of taxation of
mini and mainframe software, which included programs and data
(keypunching), I developed an argument that they were no different than
other personal and professional services. Any tangible personal
property, if any, was inconsequential to the service. You could rip up
the card but the data still existed, say on magnetic tape. Over the
telephone line was just coming on, so I embraced the technology with
the argument that I could provide my services just as well without
tangible personal property. It was all the same.
While I defined the issues in the case by my definition of software,
the State never took issue. My work back then is still reflected in
computer law today, but I get no credit, for the ideas like every other
forerunner.
Working around the clock on the case, I found legal support in Florida
for court reporting service being exempt, and I equated my keypunching
to that. Just as I was going to trial, a decision came down from the
Tennassee Supreme Court favorable to software being exempt. I tried
the case myself and it was a walkover. I was so well prepared, and
they appeared to have utterly no preparation. I could see early on
that the ALJ was impressed. Later he would write a letter of
recommendation just before he retired.
Funny,I had asked in discovery: "What expert engineering assistance did
you seek in promulgating the rules." This because expert and legal
author Kenneth Culp Davis, Esq. said that this is an important part of
the administrative process -- I knew his treatise by heart. The answer
was: "Paul Carpenter." I followed up, learning that the only
discussion one Paul Carpenter, Director of Programmers, had was at the
urinals, great ammunition for an ambush. Well, it all came together.
I won, becoming the toast of the computer world in Florida.
Then the press ballyhooed the story nationwide, at which time the phone
came off the hook for my help as an expert witness, a paralegal, an
administrative advocate. I travelled the country for expenses only,
deeming it a democratic duty. I moved over a dozen States to side with
my position. In Michigan, the Supreme Court cited only my depositional
testimony favorably in affirming a summary judgement of all things.
What a lawyer they had to pull that off, or what dummies in the state
to leave the record uncontrolled. In the end, half the states in the
nation sided with the position I had staked out.
At this time there was an obvious rift I observed in the legal
community. It surfaced in person and on the op-ed pages of journals:
some lawyers loved me, working beautifully with me and others hated me.
Truth was, in this issue only, I was the nation's expert. I didn't
compare to lawyers their knowlege of law, but I was a walking, talking
advocate for what I cam to view as Equal Rights for computer people.
Whenever I heard a lawyer trying to raise bountiful money to pursue
this issue, I always questioned him. For example, I recall getting up
in New York State, standing on a chair to be heard, where I was later
to win the case, and asking the speaking lawyer, "You're trying to
bankroll a million dollars to pursue this cause, so tell me what is the
definition of software you are proposing to pursue, because that
directly connects with whose interest is at staek?" "Daaaaaaahhhhhh,"
was the answer. Then they dragged me out, ha, ha. I was bad for
business. That victory didn't cost the computer industry anything.
I'm sure all this caught the attention of The Florida Bar. Since I now
revered this DOAH, I went there whenever there was a need. And a big
one came along. A Florida agency, HRS, licensed a "foster-maternity
home" across the street. Jitneys started appearing. The neighbors met
and decided to move against it. Well, you know a lawyer probably would
have sought injunctive relief. I came up with a clever strategy, I
think, to challenge HRS's power to license such a home in the first
place. What a case that was, getting into State Action, which violated
the concept of option centers for the girls. But the hardest part was
nailing down the witnesses who spoke in thousands of different terms
for the same thing.
It was an enigmatic nightmare, but the sharp judge caught on. I won
that too, and it was upheld by an appellate court, where I defended pro
se. Now, I was the name plaintiff yet the community had quite a stake
-- pretty close to the line huh. Drawing more attention was the fact
that I brought the lawyer I worked for as a paralegal with me to help
in the courtroom and boy did he contribute -- without him I may not
have won. But the judge started by objecting. This was the first time
a non-lawyer tried the case while the licensed lawyer sat at the table
advising. So it started with fireworks over that issue. Fortunately
the judge relented, but I'm sure that raised eyebrows at Bar
headquarters.
My successes began to draw many people yet everything I did was free
public service, pro bono as you say, and I always was clear I was a
non-lawyer and uttered the disclaimer, see your licensed Florida Bar
lawyer. Three years ago my best friend was fired from the county
college, called MDC. A guy for whom I have enormous respect, he asked
me to represent him. Sure, I said, always with a big heart.
First there was an Unemployment action. I tried that against the
College's Counsel and won. Then there was the DOAH action for wrongful
termination. That's where I got into trouble. The Chief Judge had
just retired and an interim, poorly integrated guy was at the helm. So
the moment I marshalled my pleadings and theories, however off the
mark, he took offense that a non-lawyer would be so presumptuous to
argue law, a right I assumed was sacrosanct. While sitting on the
case, he secretly forwarded the file, which was the epitome of
regularity, to The Florida Bar UPL Chief.
Even though I had done nothing wrong, they began menacing with a
frightening letter which shook my nerves to the bone. They marketed
every frightening trick in their bag, i.e. after being absolutely
forthcoming about everything here, they wrote, "Your file has been
turned over to Detective Jok?" Then, "Your file has been turned over
to The Committee." At all times, no probable cause nor charge was
made.
When they had ratcheted up the pressure, they invited me for a meeting
at Bar offices here in Miami. Alas relief, I thought. Maybe they want
to protect the public interest by determining if my friend is getting
adequate representation. So I brought him, prepared to step down.
After all, not formally trained, I had no idea of my skill level. What
a dummy I was. They no more cared about him than the man in the moon.
Shunting him aside, they surprised me with a Cease and Desist
Affidavit. First, I was shocked that they hadn't informed me of my
option to have Counsel with me. So I combed the document to find the
Right to Counsel and Waiver provision honorable parties include. Its
absence sparked my suspicion.
Now to the substance of the Affidavit: They called a number of legal
activities illegal, importuing me to sign, essentially surrendering my
rights. The more I looked at it, the more angry inside I got. Always
the gentleman, I never showed a clue of emotion yet I had resolve then
and there that this corrupt organization wasn't going to do in another
non-lawyer ever.
One thing that stood out in the Cease and Desist Affidavit is: writing
a letter for another non-lawyer is illegal and punishable by the Bar.
So they're taking the public as patsies. A few days after that
meeting, I filed for declaratory relief on the unsigned affidavit. My
100 page pleading was flawless because that count is easy and I had
followed Binders and other forms of pleading in the law library. They
hired the biggest firm in Florida to oppose me, rather than have a
genuine declaration on the content of the affidavit. What a bunch of
crooks, I thought. My Dad would have never been a party to such
conduct.
At the hearing, Counsel, lacking any legal position, argued gibberish.
Though no lawyers, my friend and I are sufficiently intelligent to
understnd nonsense when we hear it. Announcing she hadn't so much as
read the pleading, the judge dismissed my suit on the ground that if I
hadn't signed the Affidavit, the suit was moot. Good dream but not the
law of Florida. If I had agreed with the Affidavit and signed it, I
wouldn't be in court, dummy or biased judge, dah.
To add insult to injury, she glowered down from the bench saying,
"Don't come back here or I'll sanction you." Depriving me of the
inalienable right to life, liberty and property -- due process --the
judge got up and left. Justice in Bar matters in Florida. (I don't
have the resources to go down that slippery slope on appeal.) So I've
opted for relief via the First Amendment.
In November of 2002 they closed the file on my case, never giving me a
clue, like the judge, of rationale. Then they placed my name, as they
do everyone they investigate on an advertised list of Unlicensed
Practice of Law suspects, which file is open for inspection. When I
asked for a copy, what do I see? The Bar has redacted pages that make
me look good and it bad. Ensues a battle to correct the record.
Now I'm asking, failing probable cause, to be expunged from the record.
I have every charge backed up in spades. I send every writing to
Counsel for the Bar with a polite request to notify me if she takes
issue with any of my factual statements. God, she hasn't so much as
denied that The Florida Bar is corrupt.
Since releasing my first article here on the Net, the counterpart of my
meager knowledge of law in journalism, I'm getting communications
flooding me like your wise words. I have a blue print, similar to your
legal truth, from a professional writer, whom I consider in your
league, from which I am reworking this piece until I blow the Bar away.
I often tell them all I want is reform, not glory. But they continue
against all authority. I know, it's my explanation to you, a trained
lawyer, is like a typical circuitous intake, ha, ha. I've worked as a
paralegal too and took home the undergraduate American Jurisprudence
book award when I finished college recently. Applying to law school,
three turned me down, their prerogative of course.
Thanks so much for your response. And hope I've been responsive to the
question, which sometimes admittedly eludes me.
Bob Sherin.
Bob
Astute observation indeed. However, we must always be careful not to
stereotype. There are good and bad everywhere, but the law tends to
breed disordered human beings, in my view. I surely loved and
respected my lawyer Dad, who epitomized integrity.
Bob Sherin
Bob
Sorry, as usual I missed responding to a question. For The Florida
Bar, the matter ended in November, 2002, 6 months after it started,
when it "closed" the investigation. For me, it is still going on
because 1) No agency of my government is going to investigate my fellow
citizens without probable cause, 2) No agency is going to get away with
keeping me on a publicly adertised list of Unlicensed Practice of Law
suspects without probable cause, 3) No agency is going to threaten
citizens with phony Cease and Desist Affidavits, 4) No agency is going
to lay such an instrument on people, then back away when declaratory
relief is sought, 5) No agency is going to get away with routinely
juggling recors in its custody to look good, 6) No agency is going to
be able to engage in conflicts of interests with sitting judges without
my opposition, 7) And no agency is going to get away with lumping
closed UPL investigations in the same list as UPL violators who been
found guilty through due process.
To express it in fewer words, The Florida Bar is Corrupt, and I intend
through activism to change that. Hell, they receive all my articles
ahead of time, surely no requirement of law, and they do not deny
they're corrupt. Lowell, am I making legal sense?
Bob
As a lawyer, you asked an excellent question. You wanted me to set
forth the factual situation so you could better form a First Amendment,
legal opinion.
Spending hours to furnish you as comprehensive factual situation as I
could muster, I put it all out there and have heard nothing. All of us
reading this thread would surely be honored if you weighed in with some
of the brilliance I know you possess. If off base, I'm the first one
desiring correction.
In any event, mine is not an isolated circumstance or opinion. There
are hundreds of non-lawyers harassed and deprived of their rights by
The Florida Bar. This problem has become epidemic here as The Bar
seeks to tighten its control on the public.
Follows a letter to our Governor Jeb Bush about this same
subject-matter that is worthy of posting here. >>>>>>>>>>>>>>
depicted below was faxed to Governor Jeb Bush;
Mr. Sims' public defender, Steven Malone, Esq.;
CNN; NW Florida Daily News; Associated Press and
mailed to the Chief Justice of the Supreme Court of
Florida and Mr. Terry Melvin Sims
Able Legal Forms
3 Maples Street, N.W.
Fort Walton Beach, Florida 32548
(850) 244-2230
"YOUR NON-LAWYER ALTERNATIVE"
www.ablelegalforms.com
February 22, 2000
URGENT - URGENT - URGENT
Governor Jeb Bush
Capitol Bldg.
Tallahassee, FL
Re: Mr. Terry Melvin Sims - pending execution
Anthony B. Ryan - pending execution
Dear Governor Bush:
I have previously written and faxed you concerning death penalty
cases which are a product of Florida's judicial system, but you have
apparently ignored my communications and the information I brought to
your attention.
There can be no doubt that any judicial system that will
intentionally do what it has done to my wife and me, and continues to
do to hundreds of other Florida citizens, is corrupt*. It is very easy
for someone to just say "the court is corrupt," but we have seen it and
experienced it first-hand, up close and personal. Any court system
becomes a corrupt court system once it has crossed the line by using
the power of the state to persecute and oppress those who criticize it
or those who fall from its favor without violating the law.
For example, The Florida Bar and the Justices of the Supreme Court
of Florida have been conducting, and continue to conduct, a legal
technician eradication program under color of law. The purpose of this
campaign is to perfect a monopoly on the lawful dissemination of
information relating to our judicial system and our laws. The Florida
Bar and the Court are striving to force all citizens to go through a
member of The Florida Bar and pay a fee rather than receive factual
information, even free information, from a non-member of The Florida
Bar (98.5+ percent of Florida's population).
The scheme calls upon The Florida Bar membership and The Florida Bar
staff to identify non-lawyer troublemakers, critics and perceived
competitors of The Florida Bar membership. Then The Florida Bar's
private (and unconstitutional) UPL police harass and intimidate
non-lawyer private citizens and accuse them of the unlicensed practice
of law. The UPL police are not state-certified law enforcement officers
but are Florida Bar members and private investigators paid by The
Florida Bar. Though, they carry badges and shields as do police
officers.
Once targets are identified, The Florida Bar prosecutes them (with
the help of a circuit judge at the taxpayers expense) without jury
trials and finds them guilty. They are not tried by their peers but by
persons who are their adversaries. Next, the Supreme Court of Florida
upholds the findings of fact and conclusions of law and applies case
law from the previous like cases to guide them to their ultimate
decision in the case. This "case law" continues to ever expand the
definition of the practice of law for future prosecutions. The Court
issues an injunction which has the effect of nullifying the victim's
right to free speech. Violators of the injunction are held in criminal
contempt of court and are jailed without a jury trial. The Rosemary
Furman case in the mid-1980's may bring back some memories of this
process in our state's history.
This illegal use of the power of the state to perfect a monopoly for
the elite and their commercial industry, who virtually own a branch of
our state government, continues this day with little notice. And, this
is all happening right under your nose, Governor Bush. A state judicial
system that engages in this kind of conduct does not qualify as a fair
and unbiased finder of fact upon which to make conclusions of law in
any case before it. Especially in death penalty cases! Who can say in
which case they will rule fairly and in which case they will not once
the judicial system has shown its prejudice and its capacity for
corruption?
Therefore, I demand an independent criminal investigation of The
Florida Bar for The Florida Bar's practices and its relationship in
influencing the decisions of the state's highest court. I also demand
an independent criminal investigation of the conduct of the Justices of
the Supreme Court who have become willing participants in The Florida
Bar's monopolistic scheme, and by doing so, have so terribly perverted
Florida's judicial system. If this letter does not stir your office
into action, a petition drive may be necessary.
Such a court system can no longer be taken seriously and each
decision that flows from it must be questioned. You as Governor of the
State of Florida must immediately stop all executions in the state and
then see that there is a thorough house-cleaning undertaken at The
Florida Bar and the Supreme Court of Florida. It is hoped that you will
be as courageous as was Governor Ryan of the State of Illinois when he
realized that Illinois' judicial system was defective. Defective is a
term that understates the problem in Florida concerning our judicial
system. Our judicial system is rotten to the core. The rot started at
the top and worked its way down.
A legitimate inquiry will reveal this truth to you!
Cordially,
S/Ron Eubanks
Ron Eubanks
cc: NW Florida Daily News
CNN
Associated Press
Chief Justice, Supreme Court of Florida
Steven Malone, Esquire
_____________________________
*Corruption--An act done with an intent to give some advantage
inconsistent with official duty and the rights of others. The act of
an official or fiduciary person who unlawfully and wrongfully uses his
station or character to procure some benefit for himself or for another
person, contrary to duty and the rights of others. (Black's Law
Dictionary, 6th Edition, p. 345)
Corrupt--Spoiled; tainted; vitiated; depraved; debased; mortally
degenerate. As used as a verb, to change one's morals and principles
from good to bad. (Black's Law Dictionary, 6th Edition, p. 345)
Bob
Bob Sherin
15805 SW 101 Ave.
Miami, Florida 33157-1630
305-253-5006
Bob
Bob
Unbelievable! This guy sounds as if he has been reading of your
exploits
for years. But I suspect -- despite shockingly similar allegations --
that
you two have shared frustrations, but have never met.
You have to get hold of him right away and see if there is a way to
combine
your efforts. This is a wonderful opening! He could come on your radio
program, you could reiterate your arguments to the same people he has
mailed to. Imagine the synergy.
I always said you were onto something. Now we know it. And it
apparently
goes all the way to life and death decisions. That is as corrupt as it
gets.
Let me know what you decide to do.
Denis Hamilton
Indianapolis, Indiana
Bob
>>
>> Wow, wow, and wow! I just read the last of the series of postings on
the
>> Web site. Your response to Lowell was a brilliant statement of your
>> history, with one exception (though an important one): The greatest
>> unfairness of the tax dispute was that the government saw computing
>> services revenue as growing and decided they weren't getting enough
of it.
>> Period. So they concocted a RETROACTIVE tax by "reinterpreting" what
the
>> statute "really" meant all along. Your choice, facing this corrupt
>> retroactive tax, was to try to dun all of your old customers
>(unreasonable)
>> or come up with it yourself (unfair) or fight (unprecedented).
>>
>> The proof of this fiasco -- and that the State knew NOTHING about
software
>> except that it wanted to tax it -- was the way you destroyed them at
the
>> administrative hearing.
>>
>> I really think if you add that information, people will feel the
outrage
>we
>> did (and I still do).
>>
>> Anyway, try to hook up with that Lowell fellow. It sounds as least
as if
>he
>> read your piece cooly and dispassionately.
>>
>> Great, great job, Bob.
>>
>> Dennis
>>
>>
>>
>>
>> At 08:31 PM 5/9/2005 -0400, you wrote:
>> > &Submit=Search%21 Bob
>>
>>
>
>
>
>
Bob
Bob
Appearance of
Impropriety in Investigating, Prosecuting and Adjudicating Unlicensed
Practice of Law
Allegedly Committed by Non- Members of The Florida Bar.
The Court has relied on its interpretation of Article V, Section
15 of the Florida
Constitution for its jurisdiction over and authority to punish those
accused of the
unlicensed practice of law. State ex rel. Florida Bar v. Sperry, 140
So.2d 587 (Fla.
1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322,
10 L.Ed.2d
428 (1963); see also, The Florida Bar v. Flowers, 320 So.2d 809 (Fla.
1975). Article
V, Section 15 provides:
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 Court's interpretation of this provision should be examined.
A plain
reading of the constitutional provision does not support the
interpretation which the
Supreme Court of Florida relies on for jurisdiction in unlicensed
practice of law cases
involving persons not members of The Florida Bar.
The Court has chosen to exercise jurisdiction over the unlicensed
practice of
law under the rationales that the public needs protection from those
who would hold
themselves out as attorneys. See The Florida Bar v. Moses, 380 So.2d
412 (Fla.
1980). This need to protect the public can be satisfied alternatively
by the normal
method of prosecuting criminal behavior in the state through
proceedings instituted
by the State Attorney's Office. By enacting Section 454.23, Florida
Statutes, the
legislature has provided the means by which the State Attorney's Office
can charge
an individual with "unlicensed practice of law," a misdemeanor of the
first degree.
However, should the Court adhere to the interpretation of the
constitutional provision
conferring exclusive jurisdiction to regulate and discipline the
unlicensed practice of
law in the supreme court, then the legislature was without authority to
enact the
misdemeanor offense proscribing this conduct. Assuming that Section
454.23 F.S.
is valid, the State Attorney's Office has the means to protect the
public from those
who engage in any other type of criminal behavior. Therefore, it is
not a public
necessity for the Court to act as the court of first impression for
unlicensed practice
of law cases.
It would be better public policy to leave the prosecution of
unlicensed practice
of law to the various State Attorneys where the object of the
prosecution is to protect
the public from harm. A problem of perception arises with the Court
prosecuting
unlicensed practice of law violators by civil injunction or contempt.
The problem is
analogous to the problem, discussed in Young v. United States Ex rel.
Vuitton Et Fils
S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), that arises
when one
party to a civil action is allowed to prosecute the other party for
criminal contempt.
Here, the Court seems to be an interested party to the civil action as
much as is The
Florida Bar. The Court has an interest in preserving its
constitutional jurisdiction over
those licensed to practice law. The unlicensed practice of law is a
direct affront to
the Court's exclusive jurisdiction--the Court is in a sense "the
victim" when a person
not licensed to practice law does so. The punishment of violators by
the Court for
a crime that so directly affects the Court's exclusive jurisdiction
creates an
appearance of impropriety in the same way that appointment of an
interested
prosecutor 'creates an appearance of impropriety that diminishes faith
in the fairness
of the criminal justice system in general." Young, 481 U.S. at 811,
107 S.Ct. at
2139.
Indirect criminal contempt proceedings (the next level of
escalation after the
civil injunction) "are not intended to punish conduct proscribed as
harmful by the
general criminal laws. Rather, they are designed to serve the limited
purpose of
vindicating the authority of the Court. In punishing contempt, the
Judiciary is
sanctioning conduct that violates specific duties imposed by the court
itself, arising
directly from the parties' participation in judicial proceedings."
Young, supra at 2134.
As stated in the above quoted passage from Young, contempt should not
be used to
remedy conduct proscribed as harmful by the general criminal laws.
Rather, such
power of the court should be used to serve the limited purpose of
vindicating the
authority of the court. In his dissent in Walker v. Bentley, 660 So.2d
313 (Fla. 2d
DCA 1995), Judge Altenbernd makes a case for the avoidance of the use
of indirect
criminal contempt when the legislature has provided an alternative
criminal remedy:
[T]he judicial concept of indirect criminal contempt
overlaps
with legislative and executive functions. Indirect criminal
contempt allows a judge considerable flexibility in deciding
the elements of an offense against a victim for acts
occurring outside the presence of the judge. The judge
also determines who should be prosecuted, and then tries,
convicts, and punishes. I do not suggest that this
combination of legislative, executive, and judicial
functions
is prohibited by article II, section 3, of the Florida
Constitution. See Johnson, 345 So.2d 1069. Never-
the less, if separation of powers is intended to discourage
a concentration of power in one branch, this political
doctrine should discourage the avoidable use of indirect
criminal contempt when the legislature provides alternative
criminal and civil remedies. See Edward M. Dangel,
Contempt, Sec. 42A (1939).
While the Florida State Bar Association (as the lawyers' trade
association was
named at that time) actively sought to motivate its brethren into
action against
activities of non-lawyers, it also sought to invoke the Court's
rule-making powers to
provide a formalized means of enforcing the prohibition on UPL. In
Petition of Florida
State Bar Ass'n, 186 So. 280 (Fla. 1938), the Bar petitioned for
adoption of a rule
which would have provided a limited form of registration of "active"
lawyers, i.e.,
those officially registered and licensed to practice. The Court
construed that portion
of the petition as an effort to prevent the unauthorized practice of
law. Id., at 284.
The Court declined to adopt the proposed rule, noting that under the
provisions of
Florida's Constitution, an ample remedy already existed to prevent such
unauthorized
practice. Id., at 289-90. The Court further noted that it did not
have a concrete case
before it, and thus, had insufficient facts to allow it to properly
devise such a rule.
Id., citing, Rhode Island Bar Association v. Automobile Service
Association, 255 R.I.
122, 179 Atl. 139 (1935).
In Rhode Island, the Supreme Court of Rhode Island found that
while it had the
power to punish UPL as contempt, such a procedure would only be invoked
where
there is an evident need for summary action in order to protect the
public. Id. As
one commentator on the subject noted:
Criminal contempt is a summary proceeding and,
as such, dangerous. Where a statute makes the
unauthorized practice of law a crime ...
summary action is merely an alternative
method, the results of which might be unjust
when compared with the ordinary protection
afforded in the criminal process. (Emphasis
added)
Attorney and Client - Unauthorized Practice, 6 Miami L.Q. 607, 609
(1952).
The principle that such power should be used sparingly must be
considered for
another reason. When the Court exercises this power, whether by civil
injunction or
order of indirect criminal contempt, the defendant is deprived of
his/her appellate
rights. Therefore, such power should not be exercised except in
extreme or dire
cases and to do otherwise constitutes abuse of power which also usurps
the authority
of the Executive and Legislative Branches.
Given the procedural difficulties with the Supreme Court of
Florida holding trial-
like proceedings, and given the perception that the Court maintains an
interest in the
outcome of these cases, the Court should abstain from its law
enforcement activities and
disband its badge-carrying UPL police.
One must realize that members of The Florida Bar willfully
accepted the Court's
jurisdiction when they were admitted to practice--but non-members
obviously have not done
so. It is unconscionable for the Supreme Court of Florida to allow the
use of
unsubstantiated allegations of unlicensed practice of law prosecuted by
The Florida Bar
as its fabricated conduit for jurisdiction over the alleged actions of
a non-member of The
Florida Bar, which ultimately circumvents the rights of the accused
including the right
to a jury trial and the right to counsel. The Court's scheme denies
due process to the
non-lawyer accused of UPL.
The United States Supreme Court discussed the historic
progression of due
process in Griffin v. People of the State of Illinois, (1956), 351 U.S.
12, 16, 76 S.Ct.
585, 590 wherein was stated:
Providing equal justice for poor and rich,
weak and powerful alike is an age-old problem.
People have never ceased to hope and strive to
move closer to this goal. This hope, at least
in part, brought about in 1215 the royal
concessions of Magna Charta: "To no one will
we sell, to no one will we refuse, or delay,
right of justice."
Ye shall do no unrighteousness in judgment;
thou shalt not respect the person of the poor,
nor honour the person of the might; but in
righteousness shalt thou judge thy neighbor.
Leviticus, c. 19, v. 15.
Persons accused of UPL are denied an impartial tribunal by the
composition of any
committee assembled by The Florida Bar to investigate and adjudicate
non-members
of The Florida Bar. The U.S. Supreme Court in its opinion in Marshall
v. Jerrico,
(1980), 446 U.S. 238, 242, 64 L.Ed.2d 182, 100 S.Ct. 1610, 1613,
stated:
The due process clause entitles a person to an
impartial and disinterested tribunal ....
This requirement of neutrality in adjudicative
proceedings safeguards the two central
concerns of procedural due process, the
prevention of unjustified or mistaken
deprivations and the promotion of
participation in dialogue by affected
individuals in the decision making process.
(citations omitted) The neutrality
requirement helps to guarantee that life,
liberty, or property will not be taken on the
basis of an erroneous or distorted conception
of the fact or the law. (citations omitted)
... it preserves both the appearance and
reality of fairness (citations omitted) ...
assurance that the arbiter is not predisposed
to find against him.
Therefore, due to the biased composition of The Florida Bar's Standing
Committee on
UPL and the defective and prejudicial process used by The Florida Bar
in selecting the
members of said committee, non-lawyers are denied an impartial
investigative process
as well as an impartial adjudicative process violating their state and
federal
constitutional rights to due process of law and fundamental fairness.
The question presented here is whether the Bar's efforts are
reasonable given
the facts presented, and equally, whether the Bar's investigative
powers are being
exercised without prejudice and with sufficient attention given to the
protected rights
of those non-Florida Bar members targeted by the Bar. The circuit UPL
committees
appear to operate without sufficient public checks and balances or
safeguards to
prevent abuse and to protect the rights of non-lawyer citizens targeted
by the Florida
Bar. As the Supreme Court of Florida has noted:
Because of the natural tendency of all
professions to act in their own self-interest
... this Court must closely scrutinize all
regulations tending to limit competition in
the delivery of legal services to the public,
and determine whether or not such regulations
are truly in the public interest. (Emphasis
added).
The Florida Bar v. Brumbaugh, 355 So.2d 1186, 1189 (Fla. 1978)
In 1980 Barlow Christensen conducted a study of the unauthorized
practice of
law. The findings of this study were published in the American Bar
Foundation's
Research Journal (spring 1980), which concluded:
Suppression of the practice of law by non-
lawyers has been proclaimed to be in the
public interest, a necessary protection
against incompetence, divided loyalties, and
other evils. But this interest of the public
is one that has been defined, articulated,
promulgated, and enforced not by the public
but by the legal profession. And nowhere, in
all of the literature or in any of the court
decisions, is there evidence of a public voice
with respect to this supposed public interest.
(Emphasis added)
The question above is answered in the negative sense in all
respects as The
Florida Bar is clearly and freely engaged in oppression relating to its
persecution of
competitors of members of The Florida Bar.
The U.S. Supreme Court cited in Withrow v. Larkin, 421 U.S. 35,
95 S.Ct.
1456, 43 L.Ed.2d 712 (1995) at 1436-1464 the following regarding
prejudice in the
adjudicatory process:
Concededly, a "fair trial in a fair tribunal
is a basic requirement of due process." In re
Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
625, 99 L.Ed. 942 (1955). This applies to
administrative agencies which adjudicate as
well as to courts. Gibson v. Berryhill, 411
U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d
488 (1973). Not only is a biased decision maker
constitutionally unacceptable but "our system
of law has always endeavored to prevent even
the probability of unfairness." In re
Murchison, supra, at 136, 75 S.Ct. [623] at
625, 99 L.Ed. 942; cf. Tumey v. Ohio, 273 U.S.
510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50
A.L.R. 1243 (1927). In pursuit of this end,
various situations have been identified in
which experience teaches that the probability
of actual bias on the part of the judge or
decision maker is too high to be
constitutionally tolerable.
If the Court has any concern for the appearance that it and The
Florida Bar
are jointly involved in a so-called legal process devoid of
impartiality and fairness
which denies the very basics of due process, then the Court must divest
itself of all
involvement in it and run with great haste away from it, after
dismissing all cases
before the Court involving non-members of The Florida Bar accused of
the unlicensed
practice of law.
II. Applying the Rules Regulating The Florida Bar to Non-Member
Citizens
Denies Due Process to Non-Lawyers and is Unconstitutional.
The Florida Bar holds out its various Unlicensed Practice of Law
committees
(the Standing Committee and numerous circuit committees) to act as
grand juries in
matters of unlicensed practice of law investigations, cloaking their
activities in
secrecy and denying the press access to their proceedings. Committee
members are
far from being disinterested parties in matters before them because
they are "hand
picked" by The Florida Bar.
"Intentional discrimination in the selection
of grand jurors is a grave constitutional
trespass, possible only under color of state
authority and wholly within the state's power
to prevent. Even if the grand jury's
determination of probable cause to believe
that a defendant has committed a crime is
confirmed in hindsight by a conviction on the
indicted offense, that information does not
suggest that discrimination did not
impermissibly infect the framing of the
indictment and, consequently, the nature or
existence of proceedings to come." Vasquez v.
Hillery, 474 U.S. 254 (1986).
Non-lawyers are denied a fair and impartial investigative and
adjudicative
process. The U.S. Supreme Court stated In the Matters of Leroy
Murchison and
John White, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (cited in
Bryant v.
State, 1978 Fla. 1DCA 2777, 363 So.2d 1141):
A fair trial in a fair tribunal is a basic
requirement of due process. Fairness of
course requires an absence of actual bias in
the trial of cases. But our system of law has
always endeavored to prevent even the
probability of unfairness. To this end no man
can be a judge in his own case and no man is
permitted to try cases where he has an
interest in the outcome. That interest cannot
be defined with precision. Circumstances and
relationships must be considered. This Court
has said, however, that 'every procedure which
would offer a possible temptation to the
average man as a judge ... not to hold the
balance nice, clear and true between the State
and the accused, denies the latter due process
of law.' Tumey v. Ohio, 273 U.S. 510, 532, 47
S.Ct. 437, 71 L.Ed. 749. Such a stringent
rule may sometimes bar trial by judges who
have no actual bias and who would do their
very best to weigh the scales of justice
equally between contending parties. But to
perform its high function in the best way
'justice must satisfy the appearance of
justice.' Offutt v. United States, 348 U.S.
11, 14, 75 S.Ct. 11, 99 L.Ed. 11. (Cited in
Bryant v. State, 1978 Fla. 1DCA 2777, 363
So.2d 1141).
The Florida Bar Standing Committee on Unlicensed Practice of Law
is one of
many instruments used by The Florida Bar and the Florida Supreme Court
to deprive
the profession's perceived enemies, such as non-lawyer legal
technicians and
independent paralegals, their constitutional rights as the profession
attempts to
prevent intrusion into its monopoly. Even though the so-called "public
members" of
the 37-member Standing Committee have been increased to 18, these 18
public
members are hand-picked by The Florida Bar insiders using the
prospective
candidates' loyalty to The Florida Bar and the legal profession as
their primary
qualifying factor and then are appointed by the Court "on advice of the
board of
governors" and therefore do not truly represent the public interest.
These non-lawyer committee members are exclusively persons who
meet one
or more of the following criteria: a member of a regulated profession
who can
empathize with The Florida Bar's battle against competition with legal
technicians;
work in a profession that requires a good working relationship with
Florida Bar
members; a person whose income originates from members of The Florida
Bar and/or
a person whose income is high enough to afford the services of an
attorney and
therefore does not rely on legal technicians to gain access to the
courts. There are no
legal technicians/independent paralegals on the Florida Bar Standing
Committee on
UPL which determines who will be forced out of business.
The other 19 members have a far greater conflict of interest in
investigating
non-lawyers and in deciding whether or not they will be prosecuted, in
that they are
(a) members of The Florida Bar who must compete with the very low
prices charged
by legal technicians in or near the geographic locations of their law
practices and (b)
may have requested a position on The Florida Bar's Standing Committee
on UPL for
self-serving purposes, such as to target a nearby legal technician for
prosecution. An
impartial fact-finding panel it is not.
In The Florida Bar's own publication, The Florida Bar Journal, it
disclosed the
need for Bar members to be concerned with increased competition by
legal
technicians and paralegals. In its May 1997 edition on pages 18-21 in
an article titled
"Key Trends in the Legal Profession," Mike J. Garcia, an employee of
The Florida Bar,
stated in his article's introduction, in part, "By identifying the key
trends which will
take place in the legal profession and assessing their impact, we can
start to plan how
to respond to them by generating and playing out scenarios of possible
strategies."
Of the seven key trends Mr. Garcia identifies in his article, one is
subtitled "Increase
of Legal Technicians/paralegals." At the close of his article Mr.
Garcia writes, "The
21st Century will bring a proliferation of independent legal
technicians--it is important
The Florida Bar and its membership recognize this and plan
accordingly." I insist that
the Supreme Court of Florida and The Florida Bar, in concert, have
already done so.
III. The Restrictions Promulgated in Chapter 10 of The Rules
Regulating The
Florida Bar Concerning Which Forms May be Generated by a Non-Lawyer
Unlawfully
Restrict the Public's Right to Access to the Courts Under the State and
Federal
Constitutions.
The United States Supreme Court has ruled that if prisoners are
denied the right
to legal help in preparing habeas corpus petitions, they must be
afforded a reasonable
alternative (i.e., non-lawyers who know how to help). Johnson v.
Avery, 393 U.S.
483 (1969). The implementation of the present-day "Supreme Court
Approved
Forms" addressed in Chapter 10 is a product of the case of The Florida
Bar v.
Rosemary Furman. Whereas Ms. Furman was assisting poor women in
divorce cases
for a $50.00 fee, but The Florida Bar and its members wanted her
stopped. Limiting
legal processes which are available to the public by limiting the
availability of
"Supreme Court Approved Forms" and then punishing non-lawyers for
using the same
forms and processes used by lawyers unreasonably restricts access to
the court
system to persons who cannot afford to hire an attorney. The Court
must remember
who actually paid for that fine leather chair in which they are seated,
who pays their
salary and who paid for the courthouse facilities-- the citizens of
this state who out-
number Florida Bar members by approximately 270 to 1! Restricting
access to the
courts by the Supreme Court of Florida is violative of rights granted
by the state and
federal constitutions and such practice must be halted.
Today the poor and middle class face a legal access crisis
precisely because
information about how to approach and use our courts moves sluggishly
if at all due
to the greed of the "officers of the court". It is dammed up by a
class of
professionals known as lawyers who charge such unaffordably high fees
that, in
Florida, The Florida Bar felt it necessary to establish a Fee
Arbitration Program to help
settle fee disputes between attorneys and their gorged clients. How
many other
professions can you think of have such a special program complete with
its own
government committee. In almost all states, lawyers have used their
power to enact
statutes restricting to lawyers the right to provide legal information
designed to solve
an individual's legal needs. And in all but a few states the laws go
on to provide that
a non-lawyer who gives legal advice has committed a crime punishable by
imprisonment. In Florida, it is a first degree misdemeanor pursuant to
Florida Statute
454.23, but few cases are tried under this law. A more insidious
process is applied
in Florida, as described herein.
Almost no other type of speech has ever been similarly forbidden
in advance
to the public. The reason is clear. Prohibitions on disseminating
information are
almost always ruled to be unconstitutional violations of the First
Amendment, which
forbids any law that abridges the freedom of speech. This is
especially true when it
comes to speech about how to deal with public bodies such as Congress,
state
legislatures, and administrative agencies. There is no good reason to
treat the courts
differently than any other organ of government.
Courts have allowed only a handful of narrow exceptions to this
near-absolute
rule prohibiting advance restrictions to free speech. Obscenity,
incitement to violence
and false speech (libel, slander, fraud) are examples of the kinds of
speech that the
government may legally abridge. The government also may restrict
commercial
speech, such as advertising, if the restriction directly serves
substantial state interests
and the restriction is in reasonable proportion to the interests
served.
It is worthy of note that in other areas of American life,
including the regulation
of books claimed to be pornographic, where First Amendment rights were
being
restricted by quasi-official, but essentially private review boards,
the U.S. Supreme
Court has found a constitutional violation. Bantam Books Inc. v.
Sullivan, 372 U.S.
58 (1963).
If speech does not fall within these types of exceptions, it is
fully protected
under the First Amendment. It may be restricted only if the government
has a
compelling interest for doing so and the restriction is as narrowly
tailored as possible
to satisfy the compelling interest. Eliminating competition to lawyers
is not a
compelling interest.
The U.S. Supreme Court has ruled that legal advice is fully
protected speech
rather than commercial speech, even though the legal advice is given
for a fee.
Board of Trustees, State University of New York v. Fox, 492 U.S. 469
(1989). That
means that the government must have a compelling interest in stopping
nonlawyers
from giving legal advice. It's a tough standard to meet for an honest
court.
Consumer protection is the reason usually advanced by the legal
profession to
justify handing it the exclusive right to give legal advice but it is a
ruse. According
to this view, poor legal advice can cause such serious harm that a
license should be
required of those who provide it. Numerous studies of this issue,
however, have
shown that this fear is unwarranted. No study has produced concrete
evidence that
legal advice from nonlawyers causes more harm than that sold it by
licensed lawyers.
Also see Conway-Bogue Realty Investment Co. v. Denver Bar Association,
312 P.2d
998 (1957).
When you think about it, denying consumers who can't afford a
lawyer the
right to purchase legal advice and completed forms from more affordable
sources is
a ridiculous way to protect them. This only protects lawyers from
low-cost
competition. The argument put forth by lawyers' groups seems to be
that it is better
for most consumers to have no legal advice than for some to receive
advice that may
be inaccurate or incomplete. Interestingly, this argument is raised by
lawyers, almost
never by consumers, and lawyers persist in making it even though there
have been
very few complaints about existing non-lawyer legal form preparation
businesses in
comparison to the number of complaints lawyers generate from their
clients. It's as
if accountants and tax lawyers could put H&R Block and other tax
preparers out of
business because they didn't approve of their training or level of
advice (but they
could be next as the legal profession expands into these areas and
declare it "the
unlicensed practice of law").
Thus there seems to be no compelling reason to deny non-lawyers
the right to
offer the public information about our laws and courts as long as they
do not
misrepresent themselves to the public. But even if there were a
compelling interest,
the method of regulation- barring everyone but lawyers from giving
legal advice--is
much broader than it needs to be. For example, the term "legal advice"
is never
clearly defined in the laws that forbid nonlawyers from giving it.
This means that
when a complaint against a non-lawyer is made, a judge (also a lawyer,
of course)
has no reasonable standard to use when deciding whether or not legal
advice was
given. As a result, unauthorized practice laws make criminals out of
anyone who
utters words that might, even after the fact, be interpreted as legal
advice by a court.
This sort of blanket censorship of all unlicensed legal advice is
surely as blatant a
violation of the First Amendment as you'll ever find, as it chills free
speech
undeniably.
In Wyche v. State, 619 So.2d 231 (1993 Fla. S.Ct. 1092) the Court
stated:
When lawmakers attempt to restrict or
burden fundamental and basic rights such as
these, the laws must not only be directed
toward a legitimate public purpose, but they
must be drawn as narrowly as possible. See
Firestone v. News-Press Publishing Co., 538
So.2d 457 [14 FLW 54, 1989 Fla.SCt 318] (Fla.
1989). As the United States Supreme Court has
noted, "[b]ecause First Amendment freedoms
need breathing space to survive, government
may regulate in the area only with narrow
specificity." NAACP v. Button, 371 U.S. 415,
433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Put
another way, statutes cannot be so broad that
they prohibit constitutionally protected
conduct as well as unprotected conduct.
News-Press Publishing Co., 538 So.2d at 459.
When legislation is drafted(FN1) so that it
may be applied to conduct that is protected by
the First Amendment, it is said to be
unconstitutionally overbroad. See Southeastern
Fisheries Ass'n, Inc. v. Department of Natural
Resources, 453 So.2d 1351 [1984 Fla.SCt 1497],
1353 (Fla.1984). This overbreadth
doctrine permits an individual whose own
speech or conduct may be prohibited to
challenge an enactment facially "because it
also threatens others not before the court -
those who desire to engage in legally
protected expression but who may refrain from
doing so rather than risk prosecution or
undertake to have the law declared partially
invalid." Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d
394 (1985). The doctrine contemplates the
pragmatic judicial assumption that an
overbroad statute will have a chilling effect
on protected expression. City of Daytona Beach
v. Del Percio, 476 So.2d 197 [10 FLW 458, 1985
Fla.SCt 3207], 202 (Fla.1985).
IV. The Florida Bar has a Corrupt Motive to Investigate and
Prosecute Non-
Lawyers for the Unlicensed Practice of Law.
Historically, efforts of the legal profession to prevent the
unauthorized
practice of law to perfect a monopoly of legal services have long
played a role in
American jurisprudence. Throughout the years, the common justification
of such
efforts has been the legitimate interest of the state in protecting the
public from the
unskilled and dishonest(FN2) but this expressed concern for the public
interest is not the
true motivator. Equally, those efforts have also been coupled with an
emotional, if
not outright, appeal that such is necessary to protect the profession.
As artfully put
by a former chairman of the State Committee on Unauthorized Practice:
The unauthorized practice of the law as it
flourishes today presents a ringing challenge
to the members of our profession; and if it is
not stamped out, root and branch, every
ethical and self-respecting lawyer, sooner or
later, will have to close his office and
abandon the hopeless task of making a living
in the practice. (Emphasis added)
Yates, Milton. A Challenge - The Unauthorized Practice of the Law; 9
Fla.L.R. 560
(1935).
In his article, Yates sought to re-emphasize the role played by
local attorneys
in assisting the profession to prevent UPL. This was an important
endeavor because,
at that time, UPL was addressed by petition in chancery at the circuit
court level, with
a local attorney as petitioner. Yates, supra (discussing the impact of
a Tampa
newspaper article critical of the efforts of the attorney organization
in Tampa, which
had sought an injunction to prohibit the practice of law by certain
non-lawyers.)
Conclusion
The Florida Bar and the Supreme Court of Florida have a corrupt
motive for
their unlicensed practice of law prosecutions and adjudication of
non-lawyer citizens
not members of The Florida Bar. Our Judicial Branch has surrendered
the power and
prestige of the State to a powerful professional trade union (The
Florida Bar, formerly
known as the Florida State Bar Association) so it may repress its
competitors and
promote its own business interests which are contrary to the public
interest. See 40
So.2d 902 (1949) which records the surrender of our Judicial Branch of
State
Government to the Florida State Bar Association on June 7, 1949.
The appearance and suggestion that justice is for sale at 500
South Duval
Street, Tallahassee, Florida, in matters that challenge the legal
profession's monopoly
is overwhelming and damning. The current scheme used by the Judiciary
to
prosecute non-lawyers for UPL under a court rule usurps the authority
of the other
co-equal branches and is unconstitutional. The scheme is implemented
with the
intent to deny due process and fundamental fairness to non-bar-member
citizens
accused of UPL, to allow the Judiciary to manipulate the outcome of the
case. It is
clear that Florida citizens are being denied honest government services
by their
Judicial Branch.(FN3)
Unlicensed persons alleged to have engaged in UPL are only
afforded
constitutional protections under Florida's UPL statute, 454.23 F.S.,
not under the
Bar's Rules. The overriding state interest in the matter is protected
under the UPL
statute.
The state interest in regulation of persons licensed to practice
before the
courts relates to the integrity of the judicial system, and is separate
and distinct
from protection of the public against unlicensed persons, which is
satisfied by the
UPL statute.
In addition to the absence of provisions in the Rules Regulating
The Florida Bar
for consideration of state and federal constitutional issues on behalf
of non-lawyers,
the persons charged with undertaking the prosecution of non-lawyers, as
well as
those to whom responsibility is delegated for fact-finding, are all
individuals with an
identifiable personal interest in the outcome. No right to jury trial
or right to counsel
is provided. Additionally, under Rule 4-5.5(b) of the Rules Regulating
The Florida Bar,
the person charged is also denied the right to counsel in UPL cases
through the
intimidation of prospective counsel by this rule.
While the discipline of "licensed" attorneys may proceed without
such funda-
mental constitutional protections as to the right to jury trial because
of such licensees'
consent to regulation as part of the state's grant of the license
privilege, no such
consent, or waiver of rights, has been given by those persons
classified as non-
lawyers/non-attorneys under Rule 10-2.1(b) of the Rules Regulating The
Florida Bar.
The legislation the undersigned hereby proposes should resolve
most of the
issues raised herein to the benefit of the non-lawyer citizens of this
state. The
proposed legislation is attached.
Ron Eubanks
Able Legal Document Service
3 Maples St. NW
Fort Walton Beach, FL 32548
(850) 244-2230
Date: January 20, 1999
--------------------------------------------------------------------------------
Footnote 1 - In the instant case the offending item is not legislation
but a court rule having the effect of legislation promulgated by self
serving Florida Bar members and the Supreme Court of Florida absent
significent input from the public or their elected representatives--
Chapter 10 of the Rules Regulating The Florida Bar.
Footnote 2 - As noted by Stanford Professor Deborah Rhode, " [T]hat no
comperehensive history of the bar's role in unauthorized practice
enforcement has ever been published is somewhat surprising, given
public skepticism concerning the profession's objectives. " Policing
the professional Monopoly: A Constitutional and Empirical Analysis of
Unautorized Practice Prohibitions,34 Stanford L.R. 1, at 6 (November
1981). Professor Rhodes does however cite to several sources which
offer a glimpse of such regulation efforts. See Also, Rhode, Deborah.
The Delivery of Legal Services by Non-Lawyers,4 Geo. J. Legal Eth.
209-10 (1980).
Footnote 3 - The Florida Bar, as it stands today without public checks
and balances, is a public menace which threatens the rights of all
state citizens. Therefore, the Florida Legislature should also consider
requiring attorneys to pay their annual license fees ($190.00 plus per
lawyer) into the state general fund instead of into the coffers of The
Florida Bar. These fees add up to many millions of dollars annually.
The Florida Bar expends millions of these dollars to fund the salaries
and expenses of its private UPL police department, headed by Mary Ellen
Bateman, Esquire and to fund other questionable special interest
programs such as manipulating the Constitution Revision Commision,
state legislation, etc. This would certainly have the effect of putting
The Florida Bar on a leash, which is the least that should be done with
any "rabid beast" running wild and roughshod across the state abusing
and pillaging the citizenry. Additionally, The Florida legislature
should consider conducting a formal inquiry into the improper conduct
of The Florida Bar management and staff, as well as the Supreme Court's
willful complicity.
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