The bar's legislative lobbying policy.

One of the most frequently misunderstood and therefore controversial areas of Bar operations is its legislative activities. The Bar's legislative program is guided by carefully crafted rules and policies that seek to comply with various court rulings, respect the First Amendment rights of our individual members, and give sections the maximum freedom to pursue their separate lobbying agendas.

In recent years, the Florida Legislature has been the site for overhauls in court funding, challenges to the way the Supreme Court oversees procedural rules, changes in the judicial selection process, and a variety of other issues that affect the functioning of our legal system and the rights of our clients.

It is vital that the legal profession participate in such activities in order to protect the court system and our clients. But, as an official arm of the Supreme Court of Florida, the Bar's powers--properly--are very limited in the legislative arena by the court's own rules and other federal opinions, including decisions by the U.S. Supreme Court. Those restrictions are particularly necessary because of the mandatory requirement for membership in The Florida Bar and federal constitutional limitations on the use of compulsory fees to finance political or ideological activities beyond a unified bar's core purposes.

Consequently, the Bar is limited to advocating issues essentially related to lawyer regulation and discipline, judicial and court systemic matters, and increasing the availability of legal services to the public. To ensure that applicable law is followed, legislative positions are first scrutinized by the Bar's legislation committee. When proposals thereafter come to the Board of Governors from the committee, they are subject to a two-part analysis. The board must first determine that the issue falls within those areas in which the Bar is authorized to lobby. Then, the board must approve the position on its merits. For both votes, the issue must pass by a two-thirds margin.

The rules for political advocacy are significantly different for Bar sections. Because they are organizations that lawyers choose to join and are supported with voluntary funds, sections are allowed a wider lobbying scope. The Board of Governors exercises only general oversight of section legislative activities; indeed, sections are even permitted to oppose one another on specific issues. However, Florida Supreme Court rules require that sections clearly identify themselves in their advocacy, and explain that they do not represent the entire Bar but only their individual section members.

There are three formal Bar criteria that the legislation committee and the board must consider when reviewing proposed section lobbying activities. First, the positions must fall within the section's subject matter jurisdiction. Second, the position must not be contrary to a Florida Bar position, although it can contravene another section's position. Lastly, the position must not have the potential of deep philosophical or emotional division among a substantial segment of the Bar's membership.

A final factor affecting legislative positions is that they all--whether Bar or section positions--sunset at the end of each legislative biennium in even-numbered years. This policy guarantees that all positions are regularly reviewed, at a time which coincides with the general election and selection of a "new" legislature.

Information about Bar legislative policies, including a current list of Bar and section positions as well as applicable law, can be found on the Bar's Web site at www.flabar.org. Click on "Legislative Info" on the lefthand menu.

Legislative activities are those delicate yet important tasks undertaken by your Board of Governors. A sampling of recent activities shows why. For example, since voters passed Revision 7 to Article V in 1998, the Bar has worked intimately with the Supreme Court, court administrators, judges, clerks, and the legislature. That liaison ensured that essential court services were retained when hundreds of millions of dollars for trial court funding shifted from the counties to the state. Last year, the Bar worked out a compromise that may have ended a proposed constitutional amendment from the legislature that would have removed the Supreme Court's authority to write procedural rules--although that issue may come up again. Also last year, the Bar was able to help lawmakers craft legislation that increased the criminal penalties for the unlicensed practice of law. These are important core concerns of The Florida Bar.

Section lobbying involves more particular issues of substantive law and public policy. Given the limitations on unified bar advocacy, the topics of interest to these voluntary subgroups within The Florida Bar offer the chance for literally hundreds of lawyers to be involved in the legislative process. Section members can participate in recommending and formulating those positions, and then help present those matters to lawmakers--a wonderful example of grassroots democracy. Some sections also employ their own lobbyists to help pursue their political agendas.

Nevertheless, certain political issues--while of understandable interest to individual lawyers and other groups--often implicate current Florida Bar guidelines or may be better suited for advocacy wholly beyond the unified bar. In December, the Board of Governors will be considering requests by two Bar sections to lobby for removal of Florida's current statutory ban on adoption by homosexuals and to institute a "best interests" standard to determine who may adopt in this state. In 1991, when the issue was last presented to the Bar for its consideration, proposed section advocacy on this subject was prohibited due to its divisiveness. Please let your local board member know your thoughts on whether the sections should be allowed to lobby on this issue, or write me at [e-mail].

The Board of Governors and I hope our legislative activities are striking the right balance between sensitivity to our members' concerns and a strong posture of protecting our legal system. We are always interested in hearing your ideas for improving the system. Your comments and observations may be especially helpful to the board as it prepares for the 2005 legislative session.