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Florida Constitution Revision Commission

PUB 700141: Defining the Practice of Law; Transfer Regulation of the Practice of Law to the Legislature by Andrew Heneen

ARTICLE III: LEGISLATURE, New Section.

Catchline: Regulation of the practice of law
  1. The Legislature shall have jurisdiction to regulate the admission of persons to the practice of law and, consistent with Article X, Section [whatever section number the other part of this proposal is given], define and penalize the unauthorized practice of law; this jurisdiction shall be exclusive, excepting that the judiciary may, in interpreting these regulations, create tests, determine the compatability of such regulations with the U.S. or Florida Constitution or federal or state law, determine the appropriate application of such regulations in cases of first impression, or otherwise adjudicate the regulations promulgated by the Legislature, but only to the extent it would any other legislative act.
  2. The Legislature may establish rulemaking bodies to excercise this authority; no more than one half of the members of any such rulemaking body may be current or former members, or a spouse or first-degree relative of any current or former member, of the Florida Bar. Considering the demands of due process in cases challenging regulations of persons admitted to the practice of law, no state judge may serve on such a rulemaking body and no state judge who has formerly served on such a rulemaking body may adjudicate a controversy involving the unauthorized practice of law.

[Explanation, since the website doesn't allow comments as part of a proposal: In Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), the Supreme Court of Florida interpreted Art. V, Sect. 15 to give it the exclusive judicial authority to define the practice of law in cases of first impression and, if a person accused of the unauthorized practice of law (UPL) based on a previous decision of the Court believes their identity is relevant to whether their actions actually constitute UPL, that person can petition the Florida Bar for an advisory opinion, which must be approved by the Supreme Court of Florida. The Goldberg decision pertained to private litigants, but the Court also punishes UPL through civil contempt proceedings, see generally Chapter 10 of the Rules Regulating the Florida Bar.

This dual legislative-judicial nature of the Court in UPL cases violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. See, eg., Caperton v. AT Masey Coal Co., 129 S. Ct. 2252 (2009)(regarding unconstitutional bias in a civil trial), Williams v. Pennsylvania, 135 S. Ct. 1899, 1905-1907 (2016)(although a criminal case, it highlights unconstitutionality when a man is a judge in a case in which he has a personal interest). This is particularly the case in any challenge to the constitutionality of UPL restrictions that alleges the UPL restrictions violate the Free Speech Clause of the First Amendment to the U.S. Constitution. Since the UPL regulations are inherently both a content-based and speeker-based restriction on speech, they are "presumptively invalid and the Government bears the burden to rebut that presumption ... When First Amendment compliance is the point to be proved, the risk of nonpersuasion -- operative in all trials -- must rest with the Government, not with the citizen." United States v. Playboy Entertainment Group, Inc., 509 U.S. 803, 817-818 (2000)(internal citations and quotation marks omitted). It should be quite obvious that the SCF is not capable of meeting the demand of due process when adjudicating challenges to its UPL regulations, since the person challenging the regulation is arguing with the Court's reasoning for the regulation (depriving the challenger of the ability to critique the government's rationale and depriving the challenger of an unbiased judge to cross-examine/critique the governments rationale) and the SCF can simply change the law and/or address any ambiguities with its decision, rendering a nullity the U.S. Supreme Court's requirement that the regulation be invalidated and placing the risk of nonpersuasion on the challenger. It's also worth noting that in requests for adisory UPL decisions from the Florida Bar, a person requesting a decision will also bear the risk of nonpersuasion. Since a substantial amount of UPL is speech-related, this leaves Florida without a court to adjudicate many UPL challenges that complies with the Due Process Clause. In addition to UPL cases, this same due process issue also arises with the SCF's regulation of attorneys under Art. V, Sect. 15. Finally, it is necessary to note that most speech-related UPL regulations are within the scope of the First Amendment. Only categories of speech historically considered to be outside the scope of the First Amendment can be outside its protection. See United States v. Stevens, 559 U.S. 460 (2010). From the time of the Revolution until the early 20th century, courts required persons entering pleas on behalf of another or appearing in court to argue as representing someone else to be admitted to the bar. However, UPL restrictions outside the courtroom did not emerge until the early 20th century, so such restrictions are not a category that falls outside the protection of the First Amendment and therefore are subject to strict scrutiny. Cf. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666-1667 (2015)(restrictions of campaign solicitations in judicial elections has somewhat long history but is nonetheless fully protected by First Amendment); Id. at 1676 (Scalia, J., dissenting)(noting that such regulations only have a history going back to early 20th century and therefore subject to strict scrutiny).]

ARTICLE V: JUDICIARY, Section 15. Attorneys; admission and discipline.

SECTION 15. Attorneys; admission and discipline.

The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

ARTICLE X: MISCELLANEOUS, New Section.

Catchline: Defining the practice of law
  1. The state shall not define the practice of law. Instead, the state may define what constitutes the unauthorized practice of law, which shall be defined in terms of actions, conduct, or speech.
  2. The unauthorized practice of law may not be defined in terms of where actions, conduct, or speech constituting the unauthorized practice of law may be found, excepting that the authorized practice of law includes:
    1. where authorized by the federal government, or
    2. where authorized by a state agency.
  3. Subsections (a) and (b) shall take effect six months after this section is approved by voters as part of this constitution, prior to which the pre-existing statutes, court rules, and case law defining the unauthorized and authorized practice of law shall remain in force.

[Note: Compare this definition with Rule 10-2.1(a) of the Rules Regulating the Florida Bar, which simply states that "[t]he unlicensed practice of law shall mean the practice of law, as prohibited by statute, court rule, and case law of the state of Florida." That profoundly broad definition is the motivation for this section being added to the state constitution. According to a summary of UPL cases published by the Florida courts, there are over 230 reported UPL cases! See https://www.flcourts.org/core/fileparse.php/304/urlt/Summary-UPL-Cases.pdf (last accessed 16 May 2017). That is a huge volume of cases to pour through to figure out what exactly constitutes the practice of law, which is why UPL needs to be codified in terms of actions, conduct, and speech, which is what subsection (a) will require. The broad expanse of UPL decisions means that Rule 10-2.1(a) and 454.23 F.S. are also likely to be unconstituionally vague. As the U.S. Supreme Court has recently said:

“[T]he void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. … When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012)""

Since the SCF enforces the UPL and the Florida Bar is "an official arm" of the court, in a void-for-vagueness challenge, the SCF would have to judge whether its own actions are "arbitrary" or "discriminatory". Any promise by the government to only prosecute those cases involving public harm does not save the regulation. See United States v. Stevens, 130 S. Ct. at 1591 (2010). I think there is a very strong case to be made that the current definitions of UPL are unconstitutionally vague.]