PETITION OF KEARNEY

Fla. | 1953-03-13
HOBSON, C. J., and THOMAS, SE-BRING, ROBERTS, MATHEWS and DREW, JJ., concur.
63 So. 2d 630 Florida Supreme Court (1953) Caution
Cited by 8 cases

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Synopsis

Kearney, a member of the U.S. Supreme Court Bar and Tax Court Bar, sought clarification whether he could practice as "Federal Tax Counsel" in Florida limited to federal forums without Florida Bar admission. The Florida Supreme Court held that practice before the federal Tax Court and Treasury Department constitutes the practice of law subject to Florida's regulation, requiring Bar admission.


Holding

Practice before the federal Tax Court and Treasury Department constitutes the practice of law subject to Florida's jurisdiction and regulation. Therefore, petitioner must be admitted to the Florida Bar to engage in the practice he contemplates, regardless of his federal court admissions.


Key Quotes

“No person shall engage in any way in the practice of law in this state unless such person is an active member of the Bar, in good standing”

Establishes Florida's fundamental requirement for Bar admission to practice law in the state

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Facts & Procedural History

Petitioner Kearney is a citizen and resident of Florida, a member in good standing of the U.S. Supreme Court Bar, the Tax Court of the United States, …

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Opinion of the Court
TERRELL, Justice.

TERRELL, Justice.

Petitioner informs the Court that he is a citizen and resident of the State of Florida, that he is a member in good standing of the Bar of the United States Supreme Court, the Tax Court of the United States and is authorized to practice before the United States Treasury Department. Pie desires to practice in Florida as “Federal Tax Counsel” limited to appearance before the Federal Courts and Departments or Commissions enumerated above. He prays to be advised whether or not such practice is within the jurisdiction of the State-Courts or is within the exclusive jurisdiction of the Federal Courts and Commissions before whom he proposes to practice. ,

His petition was referred to the Florida Bar Committee on Unauthorized Practice with request for findings of fact and law, including recommendations. Such findings weie duly made and a copy thereof mailed to petitioner at his given address and at two other addresses hut each time they -were returned “unknown” or “moved”.

The committee found that the practice contemplated by petitioner was not governed exclusively by rules of the United States Courts and Departments but that this Court had jurisdiction of the petitioner and that the rules of procedure and the laws of Florida require that he be a member of the Florida Bar to practice here.

We approve the finding and recommendation of the Committee. Section 2, Article II of the Integration Rule, Florida Bar, 31 F.S.A., provides:

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of the Bar, in good standing, except that a practicing attorney of another . state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of the Bar.”

Section 454.23, Florida Statutes 1951V F.S.A., imposes a penalty on any one who practices law or holds himself out as a. practicing attorney before qualifying to do* so under the laws of Florida. Said statute-and the quoted rule define the policy of the state in reference to the matter. The rules governing practice before the Tax Court and Treasury Department of the United States recognize this as general policy even-, though there may be rare exceptions.

The American Bar Association is committed to like policy and holds, as do many states, that practice before the Tax Court and Treausury Department of the United States may constitute the practice of law which may be enjoined if attempted by one-not admitted to practice. In the Matter of New York County Lawyers Association (In re Bercu), 273 App.Div. 524, 78 N.Y. S.2d 209, 9 A.L.R.2d 787; Gardner v. Conway, 234 Minn. 468, 48 N.W. 2d 788;; People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 8 N.E. 2d 941, 111 A.L.R.. 1; Stack v. P. G. Garage, Inc., 7 N.J. 118, 80 A. 2d 545.

It follows that those who hold themselves out to practice in any field or phase of law must he members of the Florida Bar, amenable to the rules and regulations of Florida Courts. It is accordingly our view that petitioner must qualify to practice law in this State if he would engage in the practice he contemplates.

It is so ordered.

HOBSON, C. J., and THOMAS, SE-BRING, ROBERTS, MATHEWS and DREW, JJ., concur.


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Citator

Cited By

  • State of Fla. ex rel. THE Fla. BAR v. Sperry, 140 So. 2d 587 (Fla. 1962)
    …tate. This Court has not previously been called upon to decide whether the activities charged against the respondent, i. e. the work done by a patent attorney, constitute the practice of law if done in this state. In Petition of Kearney, Fla.1953, 63 So. 2d 630, 631, this Court said that: “It follows that those who hold themselves out to practice in any field or phase of law must be members of the Florida Bar, amenable to the rules and regulations of Florida Courts. * * * ” (Emphasis added) The Bar here…
    1 / 3
  • THE Florida BAR v. Moses, 380 So. 2d 412 (Fla. 1980)
    …dinate to a major non-legal problem. 139 N.J.Eq. at 602, 53 A. 2d at 802. Auerbacher also dealt with practice before the National Labor Relations Board and federal statutes which preempt state regulation of such practice. In Re: Petition of Kearney, 63 So. 2d 630 (Fla.1953). That facet of Auerbacher and other like cases — preemption—has a corollary in our constitution which is the critical feature of this issue. This Court has no control over the agencies of this state, and any attempt to exercise it would v…
  • In re THE Fla. BAR. In re Lucille E. Moran, 317 So. 2d 754 (Fla. 1975)
    …nstitute a holding out by Respondent of authorization to engage in the practice of law. See. e. g., The Florida Bar v. Frank M. Joyce, 299 So. 2d 27 (Fla.1974), The Florida Bar v. Lucille E. Moran, 273 So. 2d 390 (Fla.1973), and Petition of Kearney, 63 So. 2d 630 (Fla.1953). “3. That by her communications and submission of legal-type documents to the Internal Revenue Service, Texas Employment Commission, and judicial officials, Respondent has ‘represented’ persons as an advocate, and further, has expressly…

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