CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2001 WL 838201
...VAN NORTWICK, J. The State of Florida appeals a trial court order dismissing three of the four counts of an information against appellee, Robert Vernon Palmer, which charged Palmer, a disbarred attorney, with the unlawful practice of law contrary to section 454.31, Florida Statutes (1997)....
...We agree with the argument of the state and the Florida Bar, appearing as amicus curiae, that, because Article V, section 15, of the Florida Constitution does not preclude the legislature from criminalizing the unlicensed practice of law by a disbarred attorney, section 454.31 is not unconstitutional....
...The Florida Bar v. Palmer,
588 So.2d 234 (Fla.1991). On December 14, 1999, the state filed an information charging Palmer, in count one, with a scheme to defraud and, in counts two through four, with practicing law while disbarred or suspended contrary to section
454.31....
...The conduct constituting the practice of law was alleged to have occurred in the fall of 1998 when appellant solicited clients and represented to them that he was an attorney. Upon Palmer's pro se motion to dismiss, the trial court dismissed counts two, three and four reasoning that (i) section 454.31 was superseded by rule *1183 3-7.14, Rules of Discipline; (ii) rule 10-1.2, Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law, expressly provides the Florida Bar with the authority and duty to consider...
...ltimate responsibility" to discipline attorneys admitted to practice law in Florida, as well as the authority to investigate and prosecute for unauthorized practice of law, relying upon The Florida Bar v. Weisser,
721 So.2d 1142, 1144-45 (Fla.1998). Section
454.31 Raises No Separation of Powers Issue Section
454.31 provides in pertinent part: Any person who has been disbarred and who has not been lawfully reinstated or is under suspension from the practice of law by any circuit court of the state or by the Supreme Court of the state who shall either directly or indirectly practice law in any manner or hold himself or herself out as an attorney at law or qualified to practice law shall be guilty of a misdemeanor of the first degree ... The issue before us is whether section
454.31 violates an exclusive power granted to the judicial branch by the Florida Constitution....
...In addressing this issue, Dade-Commonwealth held that the Florida Supreme Court's jurisdiction to prevent the unauthorized practice was "exclusive" vis-a-vis other state courts. Id. at 726. The court did not address the authority of another branch of government. Application of Section
454.31 Not Superseded by Bar Rules Palmer argues, and the trial court ruled, that section
454.31 cannot be applied against Palmer because the statute has been superseded by rules 3-7.14 and 10-1.2 of the Rules Regulating the Florida Bar. We cannot agree. Rule 3-7.14, Rules of Discipline, provides: These rules of discipline shall supercede such parts of section 458.18,
454.31, and
454.32, Florida Statutes (1991) as are in conflict herewith. This rule is recognized in an editor's note to section
454.31 in Florida Statutes Annotated, which states that "[t]his section is superceded by the Rules of Discipline of the Rules Regulating the Florida Bar insofar as it is in conflict therewith....
...The court shall establish a standing committee on the unlicensed practice of law and at least 1 circuit committee on unlicensed practice of law in each judicial circuit. The state and the Florida Bar argue that rule 3-7.14 does not purport to preempt the regulation of unlawful practice, and by its express language supersedes section 454.31 only to the extent of any conflict between the rule and the statute. The state and Bar further suggest that the only conflict between section 454.31 and the Rules Regulating the Florida Bar concerns the language in section 454.31 which states that the statute applies to any person who has been disbarred from the practice of law "by any circuit court of the state or by the Supreme Court of the state." We agree....
...amendment to the 1885 Florida Constitution in Article V, section 23 giving the Supreme Court exclusive jurisdiction over the admission and discipline of attorneys. See Dade-Commonwealth Title Ins. Co. v. North Dade Bar Ass'n, Inc.,
152 So.2d at 726. Section
454.31, however, has contained the reference to the circuit court since its enactment in 1937, see Chapter 18006, section 1, Laws of Florida (1937), and the statute has not been amended to reflect the current regulatory scheme....
...clusive. Indeed, the Florida Bar argues forcefully in the present case that its authority in this area is not exclusive. Turning to the trial court's reliance upon The Florida Bar v. Weisser , we find the case unpersuasive to support the notion that section 454.31 conflicts with the "ultimate responsibility" to prosecute Palmer for the unauthorized practice of law granted to the Supreme Court by the Florida Constitution....
