Schwarz v. Kogan

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3276
D. C. Docket No. 94-40422-WS
THOMAS ROWE SCHWARZ,
Plaintiff-Appellant,
versus
GERALD KOGAN,
Defendant-Appellee,
and
FLORIDA BAR FOUNDATION,
Defendant-Appellee-Intervenor.
Appeal from the United States District Court
for the Northern District of Florida
(January 12, 1998)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
*Honorable Stanley Marcus was a U.S. District Judge of the Southern
District of Florida sitting by designation as a member of this
panel when this appeal was argued and taken under submission. On
November 24, 1997 he took the oath of office as a United States
Circuit Judge of the Eleventh Circuit.
MARCUS, Circuit Judge:
This lawsuit arises out of a rule of professional
responsibility enacted by the Supreme Court of Florida for the
purpose of regulating the conduct of members of the Florida Bar.
The rule, in pertinent part, requires Bar members to report their
compliance with certain aspirational goals regarding the provision
of legal services to the poor. Plaintiff-Appellant Thomas Rowe
Schwarz, an attorney and member of the Florida Bar proceeding pro
se, filed this action against the Chief Justice of the Supreme
Court of Florida, essentially seeking declaratory and injunctive
relief precluding enforcement of the rule. Schwarz asserts, among
other things, that the rule denies him rights guaranteed by the
Equal Protection and Due Process clauses of the Fourteenth
Amendment to the United States Constitution. The district court
granted a motion for summary judgment filed by Defendant-Appellees
Gerald Kogan (the current Chief Justice of the Florida Supreme
Court) and the Florida Bar Foundation. Schwarz now appeals that
decision, and asks us to vacate the order and remand with
instructions to enter summary judgment in his favor. For the
reasons stated below, we find his argument unconvincing, and
therefore affirm the district court's rulings.
I.
This appeal concerns Rule 4-6.1 of the Rules Regulating the
Florida Bar. The Rule, which is captioned " Pro Bono Public
1
Service," was adopted by the Florida Supreme Court in June of 1993
after a lengthy review and comment process, pursuant to its
exclusive jurisdiction "to regulate the admission of persons to the
practice of law and the discipline of persons admitted." Fla.
Const. art. V, §15. Section (a) of the Rule reads as follows:
Each member of The Florida Bar in good
standing, as part of that member's
professional responsibility, should (1) render
pro bono legal services to the poor or (2)
participate, to the extent possible, in other
pro bono service activities that directly
relate to the legal needs of the poor. This
professional responsibility does not apply to
members of the judiciary or their staffs or to
government lawyers who are prohibited from
performing legal services by constitutional,
statutory, rule or regulatory prohibitions [].1
Section (b) of the Rule provides a critical gloss on this
provision, by making clear that the obligation recognized by
section (a) is "aspirational rather than mandatory in nature," and
therefore "failure to fulfill one's professional responsibility
under this rule will not subject a lawyer to discipline" (emphasis
in original). Nevertheless, section (b) goes on to state that
compliance with section (a) may be established in one of two ways:
through the annual provision of 20 hours of pro bono legal services
to the poor, or an annual contribution of $350 to a legal aid
organization.
The crux of this appeal is section (d) of the Rule, which
requires Florida Bar members to report, in conjunction with their
1
Also exempt are retired, inactive and suspended Bar
members. Schwarz does not challenge the appropriateness of an
exemption for these categories of Florida lawyers.
2
annual dues statement, whether they have complied with the
aspirational goals of section (a) or, in the alternative, qualify
for an exemption. Specifically, section (d) begins by stating that
"[e]ach member of the bar shall annually report whether the member
has satisfied the member's professional responsibility to provide
pro bono legal services to the poor." It then explains that
"[e]ach member shall report this information through a simplified
reporting form that is made part of the member's annual dues
statement." The form contains the following inquiries, at least
one of which must be answered or highlighted by the member:
(1) I have personally provided hours
of pro bono legal services;
(2) I have provided pro bono legal services
collectively by: (indicate type of case and
manner in which service was provided);
(3) I have contributed to: (indicate
organization to which funds were provided);
(4) I have provided legal services to the
poor in the following special manner:
(indicate manner in which services were
provided); or
(5) I have been unable to provide pro bono
legal services to the poor this year; or
(6) I am deferred from the provision of pro
bono legal services to the poor because I am:
(indicate whether lawyer is: a member of the
judiciary or judicial staff; a government
lawyer prohibited by statute, rule or
regulation from providing services; retired or
inactive).
While a Bar member's failure, or unwillingness, to honor the
aspirational pro bono goals in the manner prescribed in section (b)
will not expose him to professional discipline, failure to comply
3
with the reporting requirement "shall constitute a disciplinary
offense under these rules" and may trigger professional discipline
by the Florida Supreme Court. Precisely what discipline the lawyer
may face is unclear, since no lawyer has actually been sanctioned
for violating Rule 4-6.1. A Bar member's report of his compliance
or non-compliance with the aspirational goals of the Rule can be
reviewed, upon request, by the public.
In May of 1994, Schwarz filed a petition with the Florida
Supreme Court, asking that the pro bono rule be stayed and then
revoked. The petition, in two instances, referred to Rule 1-12.1
of the Rules Regulating the Florida Bar. Then-Chief Justice Grimes
directed that the petition be returned without filing. The
Appellant was notified of this ruling through a letter signed by
the Clerk of Court; the letter, dated May 24, 1994, advised Schwarz
that he "must comply with Rule 1-12.1(f)" of the Rules Regulating
the Florida Bar before the petition would be considered. Rule 1-
12.1(f), among other things, states that "[o]nly the Supreme Court
of Florida shall have the authority to amend" the Rules Regulating
the Florida Bar. Rule 1-12.1(f) also creates certain procedural
hurdles that must be cleared before a petition seeking the
amendment of a Rule will be considered by the Florida Supreme
Court. A petition may, for example, be filed only by the board of
governors of the Florida Bar, or by 50 members in good standing so
long as the proposed amendment is submitted beforehand to the Bar.
Subsection (i), though, contains a proviso stating that "[o]n good
cause shown, the [Florida Supreme Court] may waive any or all of
4
the provisions of [Rule 1.12.1]."
With his petition rejected, Schwarz, in June of 1994, filed
this lawsuit pursuant to 42 U.S.C. §1983 in the Southern District
of Florida (the case was later transferred to the Northern District
of Florida). The district court granted a motion to intervene by
the Florida Bar Foundation, and eventually substituted the current
Chief Justice of the Florida Supreme Court (Kogan) for the former
Chief Justice and original Defendant (Grimes). Schwarz sought
preliminary injunctive relief precluding the Florida Supreme Court
from disciplining any Bar member who failed to comply with the
reporting requirement created by Rule 4-6.1(d). The Appellees,
however, agreed to refrain from initiating disciplinary action for
non-compliance with the reporting requirement during the pendency
of this lawsuit. On March 10, 1995, the presiding district judge
denied Schwarz's motion to disqualify "all sitting District Judges
and Magistrates serving in the United States District Court for the
Northern District of Florida" from hearing the case. The motion
was premised on the argument that judges who are also Florida Bar
members have a "direct personal, professional, and financial
interest in the outcome of this cause." The parties subsequently
filed cross-motions for summary judgment based upon a largely
stipulated record. The summary judgment motions were referred to
the assigned United States Magistrate Judge, who, on December 15,
1995, issued a lengthy report and recommendation. The magistrate
judge recommended that the Appellees' motion be granted and the
Appellant's motion be denied. Schwarz filed objections to the
5
report; on August 9, 1996, however, the district court entered a
brief order adopting the magistrate's recommendations and
overruling the Appellant's objections. Judgment was entered on
August 12, 1996.
After this appeal was docketed, the Florida Supreme Court
issued a per curiam opinion rejecting certain amendments to Rule 4-
6.1 proposed by the Florida Bar. Amendments to Rule 4-6.1 of the
Rules Regulating the Florida Bar — Pro bono Public Service, 696 So.
2d 734 (Fla. 1997). The opinion, dated May 22, 1997, denied the
Bar's application to amend the Rule by replacing the mandatory
reporting requirement with a provision that would have made
reporting largely voluntary. Schwarz, the Appellant here, is
identified as one of the counsel of record for those arguing in
favor of dropping the reporting requirement.
On appeal, Schwarz raises only some of the arguments he
presented to the district court. He asserts that the reporting
requirement of Rule 4-6.1(d) converts the aspirational goals of
section (a) into a mandatory component of Bar membership, thereby
making the Rule unconstitutional under this Circuit's substantive
due process and equal protection jurisprudence. He also contends
that the Rule amounts to an unconstitutional taking of his private
property, and insists that the Florida Supreme Court denied him a
constitutional right of access to courts by rejecting the petition
that he submitted in May of 1994. In addition, Schwarz renews his
argument that federal judges who are Florida Bar members and are
exempt from Rule 4-6.1's aspirational pro bono goals should be
6
disqualified from hearing this lawsuit.
II.
The parties agree on the appropriate standards of review. A
district judge's refusal to disqualify himself is reviewed for
abuse of discretion. United States v. Kelly, 888 F.2d 732, 745
(11th Cir. 1989). All other issues in this appeal are questions of
law that must be considered de novo. See, e.g., United States v.
Johns, 984 F.2d 1162, 1163 (11th Cir. 1993). Summary judgment is
proper if "the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c).
III.
We begin our analysis of Schwarz's constitutional arguments
(the only arguments that warrant any meaningful discussion) by
addressing his apparent view that Rule 4-6.1, on its face, denies
him rights guaranteed by the Due Process clause of the Fourteenth
Amendment. Substantive due process challenges that do not
implicate fundamental rights are reviewed under the highly
deferential "rational basis" standard. See, e.g., TRM, Inc. v.
United States, 52 F.3d 941, 945 (11th Cir. 1995).2 In order to
2
Although Schwarz suggests in passing that we apply the more
demanding "strict scrutiny" test to our examination of Rule 4-
6.1, he provides absolutely no support for his position. Indeed,
this Circuit has indicated that there is no fundamental right to
practice law, let alone to practice law free of any obligation to
provide pro bono legal services to the poor. See, e.g.,
7
survive this minimal scrutiny, the challenged provision need only
be rationally related to a legitimate government purpose. Id.(citing Silver v. Baggiano, 804 F.2d 1211, 1218 (11th Cir. 1986)).
In other words, if there is any conceivably valid justification for
Rule 4-6.1, and if there any plausible link between the purpose of
the Rule and the methods selected to further this purpose, then no
violation of substantive due process exists. See, e.g., id.The Florida Supreme Court undoubtedly has a legitimate
interest in encouraging the attorneys it has licensed to practice
in the State of Florida to perform pro bono legal services as one
aspect of their professional responsibility. We have recognized
that states have an "especially great" interest in regulating
lawyers, since "'lawyers are essential to the primary government
function of administering justice.'" Kirkpatrick, 70 F.3d at 103
(citation omitted). Due to the unique and important role of the
legal profession in this country, the free provision of legal
services to the poor has long been recognized as an essential
component of the practice of law. In Waters v. Kemp, 845 F.2d 260,
263 (11th Cir. 1988), for example, this Circuit emphasized that one
of the traditions of the legal profession is that a lawyer, as an
officer of the court, is "obligated to represent indigents for
Kirkpatrick v. Shaw, 70 F.3d 100, 103 (11th Cir. 1995) (per
curiam) (holding that rational basis review is the appropriate
standard for classifications affecting the admission of
applicants to the bar); Jones v. Board of Commissioners, 737 F.2d
996, 1000-01 (11th Cir.) (same finding with respect to equal
protection and substantive due process challenges to rules
limiting the number of times an applicant could sit for the bar),
reh'g denied, 745 F.2d 72 (1984).
8
little or no compensation upon court order." Accord, United States
v. Accetturo, 842 F.2d 1408, 1412-13 (11th Cir. 1988). Similarly,
in Mallard v. United States District Court, 490 U.S. 296, 310, 109
S. Ct. 1814, 1823, 104 L. Ed. 2d 318 (1989), the Court commented
that at a "time when the need for legal services is growing and
public funding for such services has not kept pace, lawyers'
ethical obligation to volunteer their time and skills pro bono
publico is manifest." The Florida Supreme Court, when it approved
the drafting of what became Rule 4-6.1, acknowledged precisely
these points, finding it "important for an independent legal
profession to provide a portion of indigent representation to
ensure proper challenge against government violations of individual
rights," as well as to ensure that basic legal representation is
available to "all segments of society." In re Amendments to Rules
Regulating the Florida Bar, 598 So. 2d 41, 43 (Fla. 1992). More
recently, the court justified its retention of the reporting
requirement in part by observing that "[l]awyers have been granted
a special boon by the State of Florida — they in effect have a
monopoly on the public justice system. In return, lawyers are
ethically bound to help the State's poor gain access to that
system." 696 So. 2d at 735.
There is plainly an adequate nexus between the establishment
of aspirational pro bono goals for members of the Florida Bar and
the Florida Supreme Court's legitimate interest in encouraging Bar
members to provide legal services to the indigent. Schwarz does
not, and cannot, dispute that there is a powerful, documented need
9
to broaden and improve the scope of legal representation available
to the poor. The choice of a not terribly onerous goal of twenty
hours of pro bono service per year advances the Florida Supreme
Court's interest in at least two ways. It supplies individual Bar
members with a benchmark for evaluating how many hours of pro bono
work they should be performing, while at the same time suggesting
that a lawyer's professional responsibility to perform legal
services for the poor may easily be integrated with other tasks
that draw on an attorney's time and energy.
Schwarz nevertheless insists that permitting Bar members to
comply with their professional responsibility by making a financial
contribution to a legal aid society, instead of personally or
collectively performing tangible legal services, makes the Rule
arbitrary and capricious. We disagree. It was rational for the
Florida Supreme Court to conclude that, since some attorneys
inevitably will not or cannot devote twenty hours to pro bono legal
work, giving these attorneys the option of satisfying their
professional responsibility by donating funds to a legal services
organization — under circumstances where they might otherwise do
nothing — both maintains respect for the Rule and furthers its
ultimate purpose of increasing the availability of legal services
to the poor. Moreover, the selection of $350 as the appropriate
amount was not irrational, since a larger amount might discourage
voluntary contributions or encourage a perception that this
provision benefits only wealthy attorneys. There are, admittedly,
reasonable arguments against this aspect of the Rule. See, e.g.,
10
630 So. 2d at 506 (Barkett, J., specially concurring) (suggesting
an "inherent inequality when those who cannot pay are asked to
provide twenty hours of work, and those with money can 'buy out'
for the value of a few hours"). Our task, however, is not to
evaluate whether the justifications for this portion of the Rule
are more or less persuasive than any arguments to the contrary; we
may ask only if there is a "conceivable basis" for allowing Bar
members to substitute a legal aid contribution of $350 for a
donation of legal services. There is an entirely rational basis
for this provision, especially since nothing in the Rule requires
Bar members to donate either time or money to the indigent.
We also conclude that there is a constitutionally sound basis
for expecting Bar members to report their compliance with the
Rule's aspirational goals. In its opinion approving Rule 4-6.1,
the Florida Supreme Court explained that it believed "accurate
reporting is essential for evaluating th[e pro bono] program . . .
for determining what services are being provided under the program
. . . [and] determin[ing] the areas in which the legal needs of the
poor are or are not being met." 630 So. 2d at 502-03. In its
recent opinion rejecting amendments that would have eliminated the
reporting requirement, the court again emphasized that "accurate
reporting is essential for evaluating the delivery of legal
services to the poor and for determining where such services are
not being provided." 696 So. 2d at 735. Indeed, said the court,
"[t]here is no more effective way to gauge the success of lawyers
in meeting their obligation to represent the poor — an obligation
11
every member of the Bar swears to undertake." Id. It was rational
for the Florida Supreme Court to conclude that requiring Bar
members to report their compliance with the Rule's aspirational pro
bono goals both encourages lawyers to honor these goals and
provides the Court with a pool of information that might lend some
insight into what, if any, additional measures are needed to help
the poor obtain counsel and secure access to the courts.
Schwarz nevertheless contends that the reporting requirement
fails to withstand rationality review, because the effect of this
requirement is to convert the aspirational goals of sections (a)
and (b) into mandatory obligations for most Bar members. In
essence, Schwarz contends that, since a failure to perform pro bono
legal services or contribute to a legal aid society must be
reported to the Florida Supreme Court, and this information, in
turn, must be made available to the Bar and the public, private
lawyers are implicitly coerced into satisfying the Rule's
aspirations in order to preserve their professional "honor" and
ability to climb the professional and political ladder. There are
several clear flaws with this argument. To begin with, Schwarz has
not established a persuasive evidentiary foundation for his
speculation that Bar members, in order to avoid the possibility of
social and professional scorn, have been compelled to do what they
otherwise lack the time, inclination or resources to do. Neither
section (d) nor any other provision in Rule 4-6.1 makes a Florida
lawyer's non-compliance with the aspirational goals outlined in
sections (a) and (b) a basis for professional discipline. And even
12
assuming that the reporting requirement may have some implicit
coercive effect, and thereby motivates otherwise reluctant lawyers
to honor their professional responsibility, this result justifiably
furthers the Rule's legitimate purpose.3 The Florida Supreme Court
expressly considered and rejected Schwarz's "peer pressure"
argument at the time it adopted Rule 4-6.1, see 630 So. 2d at 505,
and the explanations set forth in that ruling, and reiterated
before us now, are constitutionally adequate.
Schwarz's next argument is that the exemption for judges,
their staff and certain government lawyers in Rule 4-6.1(a)
violates the Equal Protection clause. Equal Protection challenges
that do not implicate certain fundamental rights or concern
"suspect classifications" are subject only to the same rational
basis analysis used for most substantive due process claims. See,
e.g., TRM, 52 F.3d at 945; Haves v. City of Miami, 52 F.3d 918, 921
(11th Cir. 1995). The Florida Supreme Court's disparate treatment
of certain categories of Florida Bar members, therefore, withstands
minimal scrutiny if "'any state of facts reasonably may be
conceived to justify it.'" D.W. v. Rogers, 113 F.3d 1214, 1219
(11th Cir. 1997) (citation omitted).
Schwarz contends that exempting judges, their staff and
government lawyers "who are prohibited from performing legal
3
Of course, while compliance with Rule 4-6.1(d) is required
in the sense that "failure to report this information shall
constitute a disciplinary offense under [the Rules Regulating the
Florida Bar]," it is unclear, on this record, what, if any,
sanctions might befall a Bar member who elects not to supply the
requested information.
13
services by constitutional, statutory, rule or regulatory
prohibitions" from the Rule's aspirational goals, while applying
these goals to other Bar members who are not retired, inactive or
suspended, is arbitrary and capricious.4 This argument must fail.
As the Florida Supreme Court explained in its opinion adopting Rule
4-6.1, there are clear ethical constraints on the ability of judges
and law clerks who are Florida Bar members to engage in the
practice of law. 630 So. 2d at 503 (listing provisions in the
Florida Constitution, the Code of Judicial Conduct adopted by the
Florida Supreme Court and the state's Rules of Judicial
Administration that prohibit or restrict the practice of law by
judges and clerks); see also Committee on Codes of Conduct,
Judicial Conference of the United States, Code of Conduct for
United States Judges, Canon 5(f) (March, 1997) (stating that "[a]
judge should not practice law"). The court explained that "[t]hese
prohibitions are designed partially to prevent judges and their
staffs from taking time away from their judicial duties [but more
importantly] to prevent them from placing themselves in positions
where their actions could directly be influenced by matters that
could come before them or could provide the appearance that certain
parties might be favored over others." 630 So. 2d at 503-04.
Accordingly, rather than place these individuals in a position
4
Section (a) of Rule 4-6.1 states that the professional
responsibility recognized by the Rule "does not apply" to these
individuals, although in its opinion adopting the Rule, the
Florida Supreme Court indicated that it was merely deferring the
obligation of these individuals to participate in the pro bono
program. 630 So.2d at 504.
14
where they had to navigate between conflicting ethical obligations
and likely decide against honoring the Rule, the court rationally
concluded that the wiser course was to exempt these individuals
from the Rule's aspirational goals and concentrate instead on
encouraging full compliance by private lawyers. The court found
that myriad ethical constraints, as well as the "limited
availability of staff and lack of malpractice insurance," also
affected the ability of government attorneys to honor the Rule's
aspirational goals. Even so, the Rule approved by the court does
not state that all government lawyers are exempt; rather, only
those government lawyers who are "prohibited" from providing legal
services are relieved of an obligation to aspire to perform twenty
hours of pro bono work or contribute $350 to a legal aid society.
We certainly cannot say that the Florida Supreme Court's decision
to defer this limited group of Florida Bar members from the
professional responsibility defined in section (a) was irrational.
Schwarz contends that, at the very least, it was irrational
for the court not to have required judges and their clerks, let
alone government attorneys, to "aspire" to make an annual $350
contribution to a legal aid group. We are unpersuaded. The same
concerns that underlie the prohibitions on the private practice of
law by these individuals may caution against encouraging them to
contribute money to organizations servicing the legal needs of
indigents and representing the poor in litigation. See, e.g., Code
of Conduct for United States Judges, Canon 5(C)(1) ("A judge should
refrain from financial and business dealings that tend to reflect
15
adversely on the judge's impartiality, interfere with the proper
performance of judicial duties . . . or involve the judge in
frequent transactions with lawyers or other persons likely to come
before the court in which the judge serves"). While the Florida
Supreme Court might well have broadened the types of activities
listed in section (b) of the Rule in order to encompass activities
that advance the principles of pro bono service without running
afoul of the ethical and practical constraints on judges and
government attorneys eager to further these principles, surely
there exists a rational basis for the court's conclusion that the
overall interests of the Bar, and the indigent, were best served by
limiting the ways in which non-exempt Bar members might satisfy
their professional responsibility. Consequently, the Florida
Supreme Court's decision to "defer" members of the judiciary, their
staffs and some, but not all, government lawyers from the
aspirational goals of Rule 4-6.1 easily survives Schwarz's equal
protection and substantive due process objections.
IV.
In short, we conclude that the district court properly granted
the Appellees' motion for summary judgment and properly rejected
the cross-motion filed by Schwarz. Rule 4-6.1 of the Rules
Regulating the Florida Bar withstands minimal scrutiny under this
Circuit's substantive due process and equal protection
jurisprudence, and the Appellant's other arguments merit little
16
discussion.5 Accordingly, the judgment of the district court must
5
Schwarz maintains that the Florida Supreme Court denied him
a right of "access to courts" guaranteed by the Fourteenth
Amendment when the Clerk of that court returned his petition to
eliminate the reporting requirement of Rule 4-6.1. The petition,
says Schwarz, presented state and federal constitutional
arguments against the Rule, and sought to invoke the court's
adjudicatory as opposed to rule-making powers. According to
Schwarz, the court mistakenly treated the petition as one seeking
to amend the Rule, and in so doing deprived him of a right to
litigate his constitutional objections in a Florida, as opposed
to federal, proceeding.
It is far from clear that Schwarz sought to invoke the
Florida Supreme Court's adjudicative powers. The petition, among
other things, expressly referred to Rule 1-12 (which governs
amendments to the Rules Regulating the Florida Bar), and sought
"revocation" of the rule rather than declaratory or injunctive
relief. But even assuming that the court erred in its
application of Rule 1-12 to the petition, there is another, more
fundamental flaw in the Appellant's position. To be specific, he
has made no showing that then-Chief Justice Grimes completely and
unequivocally denied him his ability to pursue in the Florida
courts a constitutional challenge to enforceability of Rule 4-
6.1. Although the Appellees take the position that the Florida
Supreme Court is the only Florida tribunal that might have
jurisdiction to consider a facial constitutional attack on a rule
propounded by that body, see Appellees' Brief, at 17 (citing
State v. McCall, 301 So. 2d 774, 775) (Fla. 1973)), they insist
that Schwarz could have sought to invoke the court's authority to
issue writs. They observe that section 3(b)(7) of Article V of
the Florida Constitution gives the court jurisdiction over
petitions for "all writs necessary to the complete exercise of
its jurisdiction." In State ex rel. Chiles v. Public Employees
Relations Commission, 630 So. 2d 1093 (Fla. 1994), a case which
arose out of an attempt to secure a writ prohibiting the
certification of a bargaining unit for state-employed attorneys,
the court emphasized that the state constitution "vests [us] with
the 'exclusive jurisdiction to regulate the admission of persons
to the practice of law and the discipline of persons admitted,'"
and accordingly "[b]ecause the regulation of attorneys falls
within the Court's ultimate power of review, the all writs clause
could arguably be invoked as a basis for this Court's
jurisdiction" over the lawsuit. Id. at 1095. In light of this
language, and the pertinent provisions of the state constitution,
it cannot be said that it would have been wholly futile for
Schwarz to have attempted to invoke the Florida Supreme Court's
original jurisdiction. Moreover, it is possible that, had
Schwarz subsequently filed a petition that complied with Rule 1-
17
12, or at least sought a waiver of the procedural limitations of
that Rule, the court might have addressed his constitutional
arguments wearing its "adjudicatory" hat as well as, or in lieu
of, its "rule-making" hat. What seems clear, therefore, is that
the rejection of the petition filed by Schwarz in May of 1994
does not, standing alone, support the proposition that any
constitutional right of access to courts has been infringed. It
is also worth noting that the Florida Supreme Court recently
considered both state and federal constitutional arguments
against the reporting requirement in its opinion rejecting the
Bar's proposal to amend this portion of the Rule. 696 So. 2d at
735.
Schwarz’s next suggestion that Rule 4-6.1 amounts to a
taking of his property without just compensation, in violation of
the Fifth and Fourteenth Amendments, is equally unavailing, for
any number of reasons. Among other things, the Rule plainly does
not "take" the property of Florida Bar members; compliance with
the aspirational pro bono goals set out in section (b) is
altogether voluntary. See Cone v. State Bar of Florida, 819 F.2d
1002, 1007 (11th Cir.) (sustaining Florida Bar's IOTA program
against a Taking Clause challenge since "there was no taking of
any property of the plaintiff"), cert. denied, 484 U.S. 917, 108
S. Ct. 268, 98 L. Ed. 2d 225 (1987). Moreover, even if Schwarz
could frame a viable takings challenge on this record (and he
plainly cannot), he has failed to establish that he has exhausted
whatever state remedies that might be available to him. See
Bickerstaff Clay Products Co., Inc. v. Harris County, 89 F.3d
1481, 1490-91 (11th Cir. 1996) (discussing the ripeness
requirement for Takings Clause claims).
Finally, we are not persuaded by the Appellant's argument
that all federal judges who are members of the Florida Bar and
are "deferred" from the aspirational pro bono goals of Rule 4-6.1
must disqualify themselves from hearing this lawsuit. Section
455 of Title 28 of the United States Code describes the
circumstances where federal judges or magistrates "shall" recuse
themselves. Section 455(a) provides that judges shall disqualify
themselves "in any proceeding in which [their] impartiality might
reasonably be questioned." See Parker v. Connors Steel Co., 855
F.2d 1510, 1524 (11th Cir. 1988), cert. denied, 490 U.S. 1066,
109 S. Ct. 2066, 104 L. Ed. 2d 631 (1989). Section 455(b) adds
that disqualification is required when the judge "knows that he .
. . has a financial interest in the subject matter in controversy
. . . or any other interest that could be substantially affected
by the outcome of the proceeding." Schwarz insists that federal
judges and magistrates who are Florida Bar members have a
"personal and professional" stake in preserving the exemption
that the Florida Supreme Court has, at least temporarily, carved
18
be, and is,
AFFIRMED.
out for them. Schwarz also asserts that members of the judiciary
have a direct financial interest in preserving the exemption,
since the Rule effectively relieves judges of any obligation to
perform 20 hours of pro bono work or contribute $350 to a legal
aid society. But judges, like other Florida Bar members, are not
obliged to provide any pro bono services or contribute any money
to legal aid groups. Nor do judges have a meaningful
"professional" interest in preserving the language of the Rule,
since accepted canons of judicial conduct would continue to
constrain the ability of judges to honor the Florida Supreme
Court's aspirational goals even if members of the judiciary were
required to disclose their non-compliance.
19