State Ex Rel. Florida Bar v. Sperry

140 So. 2d 587, 133 U.S.P.Q. (BNA) 157, 1962 Fla. LEXIS 2867
CourtSupreme Court of Florida
DecidedApril 4, 1962
Docket31411
StatusPublished
Cited by71 cases

This text of 140 So. 2d 587 (State Ex Rel. Florida Bar v. Sperry) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Florida Bar v. Sperry, 140 So. 2d 587, 133 U.S.P.Q. (BNA) 157, 1962 Fla. LEXIS 2867 (Fla. 1962).

Opinion

140 So.2d 587 (1962)

STATE of Florida ex rel. THE FLORIDA BAR, Petitioner,
v.
Alexander T. SPERRY, Respondent.

No. 31411.

Supreme Court of Florida.

April 4, 1962.
Rehearing Denied May 16, 1962.

Sherwood Spencer, Hollywood, J. Lewis Hall, Tallahassee, Donald J. Bradshaw, Inverness, J. Nixon Daniel, Jr., Pensacola, and John H. Gunn, Miami, as and constituting the Special Committee of the Board of Governors of The Florida Bar on Patent Attorneys, Unauthorized Practice of Law, for The Florida Bar, petitioner.

Harry Kemker, Tampa, for respondent.

O'CONNELL, Justice.

In this cause The Florida Bar, by petition filed in this Court, seeks to invoke the *588 original jurisdiction of this Court asking that we require the respondent to show cause why he should not be held in contempt of this Court for the unauthorized practice of law, and further that we enjoin respondent from further unauthorized practice of law in this state.

Basically the petition alleges that the respondent, Alexander T. Sperry, is engaged in the unauthorized practice of law, in violation of Section 2, Article 2, Integration Rule, The Florida Bar, 31 F.S.A., in that although he is not a member of The Florida Bar, hereinafter referred to as the Bar, he nevertheless holds himself out to the public as a patent attorney, maintains an office in Tampa, Florida on the door of which appear the words "Patent Attorney", and is so listed in the telephone directory of the City of Tampa and on the directory in the lobby of the building in which his office is located. Further, the petition alleges that the respondent represents Florida clients before the United States Patent Office, hereinafter referred to as Patent Office; has rendered opinions as to patentability and opinions as to whether or not patent rights are being infringed and are the subject of a cause of action in the courts; has prepared various legal instruments, including contracts, applications and amendments to applications for letters patent, and filed same in the Patent Office in Washington, D.C.; and has prepared briefs and authorities with points of law relating thereto.

Respondent filed an answer to this petition in which he admitted that he was not a member of the Bar, and admitted all the other allegations thereof with the exceptions or qualifications which follow.

As to advising clients on infringement of existing patents, respondent stated he did so only on one occasion and that he did so as a part of his work in filing an application for a patent for a client. As to patent license agreements he alleged that he prepared such only in rough and never in finished form.

He denied that he had prepared any other contracts and denied that he had prepared briefs and authorities with points of law relating thereto.

In defense he also asserted, among other things, that he is duly admitted to practice before the Patent Office, having been admitted in 1928, and under the rules and regulations of that office he is authorized to use the nomenclature "Patent Attorney" even though he is not an attorney-at-law in any jurisdiction; the acts performed by him do not constitute the unauthorized practice of law; and that the injunctive relief prayed for would, if granted, deprive him of the ability to earn a living and deprive him of property without due process of law under the Constitution of Florida and the Fifth and Fourteenth Amendments to the United States Constitution.

The matter has been submitted on the pleadings. The material facts being admitted there is no need for the taking of testimony.

While not raised by either party the first question which we feel necessary for decision is whether this matter is within the original jurisdiction of this Court.

In 1956 the electorate of this state adopted a revised Article V of our state constitution. Section 23 of this new article gives this Court "exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted."

Quite obviously this matter now before us does not involve either the admission of an applicant to the Bar or the discipline of one already admitted. The question then is whether the authority imposed in Section 23, Article V, also carries with it the power to prevent the practice of law by those who are not admitted to the practice. We think that it must and it does for if it does not the express power to control admissions would be meaningless.

This identical question was raised in a similar case in West Virginia State Bar v. Earley, W. Va. 1959, 109 S.E.2d 420. We *589 adopt as ours the words that court spoke in disposing of the question, at 109 S.E.2d p. 440, to-wit:

"* * * It would indeed be an anomaly if the power of the courts to protect the public from the improper or unlawful practice of law were limited to licensed attorneys and did not extend or apply to incompetent and unqualified laymen and lay agencies. Such a limitation of the power of the courts would reduce the legal profession to an unskilled vocation, destroy the usefulness of licensed attorneys, as officers of the courts, and substantially impair and disrupt the orderly and effective administration of justice by the judicial department of the government; and this the law will not recognize or permit."

The express power contained in our state constitution makes unnecessary any discussion of the inherent power of the courts to regulate the practice of law and those who engage in it. Were it necessary to do so there is abundant authority to support the view that the courts do have such power. Petition of Florida State Bar Ass'n, 1938, 134 Fla. 851, 186 So. 280; Chicago Bar Ass'n v. Kellogg, 1949, 338 Ill. App. 618, 88 N.E.2d 519; In re Baker, 1951, 8 N.J. 321, 85 A.2d 505; West Virginia State Bar v. Earley, 109 S.E.2d 420, supra.

The next question then is whether this Court may enforce its authority in such matters by either or both contempt proceedings and injunction.

The unauthorized practice of law constitutes a contempt of court. West Virginia State Bar v. Earley, supra; In re Baker, supra. See also Cases Noted, 6 Miami Law Quarterly 606.

In Hargett v. Lake, Ky. 1957, 305 S.W.2d 523, as in this case before us, a proceeding was brought originally in the appellate court seeking to have a person held in contempt and appropriately punished for practicing law without license or right. That court adjudged the person involved to be in contempt and ruled that "* * * he is permanently enjoined from engaging in the practice of law."

Aside and apart from these decisions which support the view that a court may invoke contempt and injunctive powers to enforce its authority in such matters, this Court has constitutional authority for so doing.

Sec. 4(2), Art. V, Fla. Const., F.S.A.

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Bluebook (online)
140 So. 2d 587, 133 U.S.P.Q. (BNA) 157, 1962 Fla. LEXIS 2867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-florida-bar-v-sperry-fla-1962.