author: PER CURIAM.

text:
    John William BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 53767.
    Supreme Court of Florida.
    June 11, 1981.
    Rehearing Denied Sept. 8, 1981.

      W. Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, John Barfield, was convicted of both first-degree murder and conspiracy to commit first-degree murder. After a jury recommendation of life imprisonment, the trial judge imposed the death sentence for the murder conviction and a thirty-year sentence for the conspiracy charge. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both convictions and the thirty-year conspiracy sentence, but reduce the death sentence to life imprisonment without the possibility of parole for twenty-five years in accordance with the jury’s recommendation.

This was a murder for hire in which appellant was the middleman who procured individuals to commit a murder from which he was to share in the proceeds of a $400,-000 insurance policy on the victim’s life. The primary evidence for the state was the testimony of one of two men who partid-, pated in the actual killing and a confession made by appellant to his cell mate. This evidence was supplemented by the testimony of two of appellant’s former employees who were initially charged in the conspiracy count and certain admissions made by appellant at his initial arrest. Appellant testified in his own defense.

Appellant was charged in this cause with conspiracy to commit the murder of Forrest J. Harris, Jr., in 1976, and the first-degree murder of Harris on April 23, 1977. The relevant facts, as established in the record, are as follows. Ron Garelick, a general life insurance agent and the victim’s business associate, obtained a $400,000 insurance policy on Harris’ life, naming as beneficiary a jointly-owned Garelick-Harris corporation. Garelick knew appellant as a business acquaintance and solicited his help in obtaining individuals to kill Harris for the insurance money. Garelick offered appellant $125,000 from the insurance proceeds as compensation for arranging the murder. Appellant actually received no funds from Garelick.

In April of 1976, appellant contacted Gerry Sapp and Huey Palmer, two of his former employees, and offered them $10,000 and $25,000, respectively, to kill Harris. They each testified that they refused this offer. A year later, in April of 1977, at a meeting with Ernest Downs, Larry Johnson, and Sapp, appellant offered Downs $5,000 to kill Harris. After Downs accepted, appellant identified the victim’s automobile and apartment, and suggested an appropriate location for the killing. Downs enlisted Johnson’s assistance to accomplish the murder. At Downs’ request, Johnson phoned Harris, identified himself as a party from whom Harris expected a call, and arranged a meeting under the pretense of discussing the importation of drugs. Downs picked Harris up at the predesignated spot and drove to a remote dirt-road location where he had deposited Johnson earlier. As Harris exited the vehicle and approached Johnson, Downs shot Harris four times with an automatic pistol. After both men dragged the body into the bushes, Downs fired another shot into it to make sure that Harris was dead. The body was not discovered until months later, on August 2, 1977, when Johnson, who had been promised immunity, directed the Duval County Sheriff’s Department to the skeletal remains. Also on that date, apparently coincidentally, Garelick met with claims representatives in Houston, Texas, concerning the $400,000 life insurance policy. He settled the claim for $35,000. Shortly thereafter, on August 5, Garelick died of a heart attack.

Also on August 5, the sheriff’s department took appellant into custody. An officer read him his Miranda rights, but appellant refused to sign the waiver-of-rights form and stated that he would like an attorney. The officer in charge responded, “We will obtain an attorney for you. Is there anything further you want to say?” The officer testified that at this point appellant turned the rights form over and drew a diagram containing six “X’s” in which he identified one “X” as the victim, two others as the men who did the killing, and, from the remaining group of three, one “X” as himself and one as the “big man.”

While awaiting trial, appellant was placed in a cellblock with another prisoner who was being held for larceny and forgery and was under investigation for a Louisiana murder. Appellant told the cell mate that he had arranged for Harris’ murder and that he had worked on it for over a year.

The cell mate later approached authorities with this information and offered to solicit further incriminating statements from the appellant. Subsequent attempts using a concealed electronic recording device were not successful. At the hearing to suppress the statements, the testimony revealed that the authorities made no contact with the cell mate before he approached them with appellant’s inculpatory remarks. The trial court suppressed all conversations after that initial contact with the police.

The state failed to list the cell mate as a witness on its supplemental witness lists until January 11, 1978, although it had known of the cell mate’s existence since the preceding October. Appellant, however, had listed the cell mate as a defense witness on January 5, 1978, and deposed him on January 11.

In testifying in his own behalf, appellant acknowledged the 1976 meeting with Sapp and Palmer and alleged that the three went to Harris’ apartment complex with the intention of killing Harris. Appellant stated that he remained in the car and waited for about forty minutes when Sapp and Palmer returned, saying that there were too many people around to commit the murder at that time. Appellant denied that he made any arrangements with Downs, but acknowledged that Downs did contact him at approximately the time of Harris’ murder asking whether Garelick would pay his bills. He confirmed his conversation with police and his diagraming the six “X’s” on the back of the rights card, but he identified the “X’s” differently, the group of three as Sapp, Palmer, and himself, two more as the victim and the killer, and the single “X” as the “big man.” Appellant expressly denied receiving or paying any money to have Harris killed.

The record before the trial judge and the jury showed that the state granted Larry Johnson full immunity in exchange for his testimony. All charges against Huey Palmer were dropped in exchange for his testifying for the state. Gerry Sapp pleaded guilty to conspiracy to commit first-degree murder in exchange for the state’s recommendation that he be sentenced to a maximum of five years and that he testify in the state’s behalf.

Ernest Downs, the trigger man, was convicted of first-degree murder, and the trial judge imposed the death sentence in accordance with the jury’s recommendation. This Court affirmed. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, - U.S. -, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980). In the present case, the trial court had knowledge of Downs’ conviction and sentence, but the jury did not.

TRIAL PHASE

Appellant contends that his conviction should be set aside because the trial judge erred in: (1) not disqualifying herself; (2) denying appellant’s request to interview the jurors after the trial concluded; (3) failing to suppress the diagram and statements made by appellant at the time of his arrest; (4) not suppressing all conversations between appellant and his cell mate; and (5) failing to grant a trial continuance because the state failed to timely list appellant’s cell mate as its witness. We find that the trial court ruled correctly on all of the asserted points. Only the latter three, however, merit discussion.

Diagram and Accompanying Statements

Appellant contends that the diagram and statements made on August 5, 1977, were erroneously admitted into evidence because appellant made them after asking for counsel. The record is clear that police gave appellant Miranda warnings and that he refused to sign the waiver-of-rights form. Immediately thereafter, appellant asked for counsel and an officer stated: “We will obtain an attorney for you. Is there anything further that you want to say?” Appellant responded immediately by turning the rights form over and sketching his view of the murder’s participants on the reverse side.

As set forth by the United States Supreme Court in the recent decisions of Edwards v. Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the guideline is whether the officer’s statement was designed or could reasonably be expected to elicit an incriminating response. In other words, we must determine whether appellant’s statement was the intentional result of interrogation or whether appellant initiated and gave a voluntary statement after complete Miranda warnings. We find it was the latter. The officer’s answer to appellant’s request for counsel was merely responsive and directed as much to personal needs as to any other matter. Given the entire circumstances, it appears that the officer did not intentionally elicit the incriminating diagram and statement, but rather they were uncoerced and the product of appellant’s own initiative and free will. The evidence supports the trial court’s finding that appellant’s actions were voluntary and not the result of a continuing interrogation after a request for counsel.

We recognize that this is a close question and have consequently considered the effect of the diagram’s inadmissibility under Edwards if the officer’s statement did indeed constitute improper interrogation. Accord, United States v. Womack, 542 F.2d 1047 (9th Cir. 1976); United States v. Crisp, 435 F.2d 354 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971); United States v. Priest, 409 F.2d 491 (5th Cir. 1969). On the present record, we find that even if the trial court should have excluded the diagram and statements as violative of Miranda, the error was harmless. The questioned evidence was neither the primary evidence against appellant nor essential to the state’s case. Appellant’s coconspirators, Johnson, Sapp, and Palmer, each outlined appellant’s participation in the Harris murder through their trial testimony. Moreover, the state properly presented appellant’s other incul-patory statements made to his cell mate, in which he fully admitted instigating this killing. The combined effect of this evidence clearly established appellant’s guilt and rendered the diagram and accompanying statements merely cumulative. The trial court’s error, if any, was consequently harmless under the principles set forth in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Statements to Ceil Mate

Appellant next contends that the trial court should have suppressed the confession to his cell mate because its admission contravened his sixth amendment right to counsel.

The United States Supreme Court has recently held that statements made to a cell mate acting as a government informant are inadmissible. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In Henry, an FBI agent instructed defendant’s fellow inmate to “be alert” for any incriminating statements that defendant might make. The inmate was subsequently placed in defendant’s cell and initiated a conversation in which defendant disclosed that he had committed the charged armed robbery. Citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Court held that the conversation was subject to suppression both because the inmate was paid and had elicited the information and because defendant was without the benefit of or opportunity to obtain counsel.

We find that no sixth amendment violation occurred in the instant case. Appellant’s cell mate was not paid and was not acting pursuant to government instruction. The police did not even consider the cell mate as a potential informant until he had approached the authorities on his own initiative which occurred after the inculpatory statements had been made to him by appellant. The trial court directly met any potential Henry violation by suppressing all conversations between appellant and his cell mate after the cell mate’s initial contact with the police. We conclude that the trial court acted properly by admitting only appellant’s unsolicited statements.

Denial of Trial Continuance

Appellant claims that the state’s failure to list the cell mate as a witness until the week prior to trial left his counsel with inadequate preparation time, and that the trial court’s denying a continuance caused him prejudice. He asserts that the testimony should have been suppressed because the state had knowledge of the cell mate’s status in October, yet there was no disclosure until January. Appellant urges further that the trial court failed to make sufficient inquiry into the alleged discovery violation as mandated by Richardson v. State, 246 So.2d 771 (Fla.1971), and Wilcox v. State, 367 So.2d 1020 (Fla.1979).

We disagree. While the state may have improperly delayed the listing of the cell mate as a witness, appellant’s counsel had deposed the cell mate with regard to the questioned statements and had even listed the cell mate as appellant’s witness. The record clearly establishes that the trial court took these factors into consideration and conducted an extensive evidentiary hearing on appellant’s motions for suppression and continuance. In denying the motions, the trial judge specifically found that the state’s failure to disclose resulted in no prejudice to appellant. Given these circumstances, we reject appellant’s assertions and affirm the trial court.

SENTENCING PHASE

This Court has previously determined that it must give great weight to the jury’s advisory sentence of life imprisonment. When a trial judge chooses to override the jury and impose the death sentence, the justification must be clear and convincing and, under the circumstances, the jury’s recommendation unreasonable. Neary v. State, 384 So.2d 881 (Fla.1980); Malloy v. State, 382 So.2d 1190 (Fla.1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Tedder v. State, 322 So.2d 908 (Fla.1975).

Contrary to the jury’s recommendation in the instant case, the trial judge imposed the death sentence, finding no mitigating circumstances and one aggravating circumstance and stating:

The court finds that [appellant] was the moving party to accomplish the murder of the deceased solely for pecuniary gain. The court further finds that although [appellant] was not the actual killer, he was the moving party causing the death of the deceased. The court therefore finds there was not sufficient mitigating circumstances to out weigh [sic] the aggravating circumstance.

From our view of the instant record, the following factors apparently influenced the jury in its recommendation of life imprisonment: (1) Ron Garelick, the murder’s mastermind, had previously died; (2) appellant was the middleman; (3) the state granted Larry Johnson, one of the participants in the actual killing, complete immunity; and (4) one codefendant, charged with conspiracy to commit first-degree murder, received a five-year sentence, and another codefend-ant had all charges dropped in exchange for testifying for the state. Although not before the jury and not set out in the sentencing order, the trial judge knew at sentencing that Ernest Downs, the trigger man, had been found guilty of first-degree murder and sentenced to death.

We have carefully reviewed the trial judge’s order and fully recognize her reasons for imposing the death penalty. We find, however, that there was a reasonable basis for the jury’s recommendation of life imprisonment under the facts of this case.

For the foregoing reasons, we affirm appellant’s convictions and his thirty-year sentence for conspiracy. The death sentence is reversed and the cause remanded with directions to enter an order sentencing appellant to life imprisonment without the possibility of parole for twenty-five years.

It is so ordered.

BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., concurs as to the conviction and dissents as to the sentence.

SUNDBERG, C. J., dissents.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    In re Herbert BYRNE. In re Norma TURNER.
    Nos. 57314, 57315.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 9, 1981.
    Lester C. Wisotsky of the Legal Services of Greater Miami, Inc., Miami Beach, for appellants.
    Jim Smith, Atty. Gen., and Brian E. Norton, Asst. Atty. Gen., Tallahassee, for appel-lee.
   BOYD, Justice.

These consolidated cases are before the Court on appeal from judgments of the Circuit Court of the Eleventh Judicial Circuit, in Dade County, which upheld the constitutionality of section 410.104, Florida Statutes (1979). Under the jurisdictional provisions in effect at the time the notices of appeal were filed,' jurisdiction of the appeals lay with this Court. Art. V, § 3(b)(1), Fla. Const. (1972).

On June 5, 1979, a social worker visited the appellants in their home and found them completely naked, surrounded by debris and excrement. Herbert Byrne, age 79, had called for help because his niece Norma Turner had fallen and he was unable to get her up. The social worker found that the plumbing was not working, parts of the ceiling were falling, and wires were dangling. A police officer took the appellants to a hospital.

The next day the social worker filed petitions for emergency orders of custody pursuant to section 410.104, Florida Statutes (1979). The court, ex parte, immediately issued orders for emergency custody. On the following day, he appointed counsel for the appellants.

On June 8, 1979, the appointed attorneys filed motions to dismiss the petitions on the ground that the emergency procedures provided for by section 410.104 are unconstitutional. The judge held a hearing that same day. The judge denied the motions to dismiss, but found that theré was insufficient evidence to establish a need for continued services. On June 13, the court issued an order denying the motion to dismiss and rendered a judgment “acquitting” the appellants from further involuntary custody. This appeal of the denial of the motion to dismiss followed.

Since the time the notices of appeal were filed, Herbert Byrne has died and Norma Turner has been adjudicated incompetent. It is arguable that the controversy has therefore been rendered moot. We retain jurisdiction, however, “since this is a matter of great public importance in the administration of the law and is of general interest to the public.” Sadowski v. Shevin, 345 So.2d 330, 331-32 (Fla.1977); see also Clark v. State ex rel. Rubin, 122 So.2d 807 (Fla. 3d DCA 1960).

Section 410.104, Florida Statutes (1979), authorizes the Department of Health and Rehabilitative Services to take elderly persons into custody and transport them to a medical or protective service facility in an emergency situation without their consent. The issue is whether this section comports with due process and is constitutional.

The statute provides as follows:

(1) Upon probable cause to believe that an individual suffering from the infirmities of aging is being abused, maltreated, or neglected, a representative of the department, accompanied by a law enforcement officer, may enter a premises, after obtaining a court order and announcing their authority and purpose. Forcible entry shall be attained only after a court order has been obtained, unless there is probable .cause to believe that the delay incident to obtaining such an order would cause an individual suffering from the infirmities of aging to incur a substantial risk of life-threatening physical harm.
(2) When, from the personal observation of a representative of the department and a law enforcement officer, it appears probable that an individual suffering from the infirmities of aging is likely to incur a substantial risk of life-threatening physical harm or deterioration if not immediately removed from the premises, the department’s representative may, when authorized by court order, take into custody and transport, or make arrangements for the transportation of, the individual to an appropriate medical or protective services facility.
(3) When action is taken under this section, a preliminary hearing shall be held within 48 hours, excluding Saturdays, Sundays, and legal holidays, to establish probable cause for grounds for protective placement.
(4) Upon a finding of probable cause, the court may order temporary placement for up to 4 days, pending the hearing for a need for continuing services.
(5) When emergency services are rendered, a report of the exact circumstances, including the time, place, date, factual basis for the need for such services, and the exact services rendered, shall be made and forwarded as provided for in s. 827.-09.

§ 410.104, Fla.Stat. (1979).

The section under consideration is part of the Adult Protective Services Act, §§ 410.-10-410.11, Fla.Stat. (1979). This statute was enacted to protect adults suffering from the “infirmities of aging” from “exploitation, neglect, abuse, and maltreatment” with “the least possible restriction on personal liberty and the exercise of constitutional rights, consistent with due pro-ces. . . .” § 410.101, Fla.Stat. (1979).

The term “infirmities of aging” is defined to mean “organic brain damage, advanced age, or other physical, mental, or emotional disfunctioning in connection therewith, to the extent that the person is substantially impaired in his ability adequately to provide for his own care or protection.” § 410.-102(1), Fla.Stat. (1979).

Section 410.103, Florida Statutes (1979), provides certain conditions governing the authority of the Department of Health and Rehabilitative Services to provide services:

(1) CONDITIONS FOR PROVIDING SERVICES.—The department shall provide protective services in response to complaints concerning, and requests for assistance from or on behalf of, individuals suffering from the infirmities of aging. The department shall provide such services under any of the following conditions:
(a) The person demonstrates a need for, and requests, such services.
(b) An interested person requests such services on behalf of a person in need of services.
(c) The department determines a person is in need of such services.
(d) A court orders such services.
(2) VOLUNTARY SERVICES.—An individual shall receive protective services voluntarily unless ordered by the court, requested by a guardian, or provided in accordance with s. 410.104.

Section 410.104(2) authorizes the department to relocate elderly persons without their consent who are “likely to incur a substantial risk of life-threatening physical harm or deterioration if not immediately removed from the premises.... ” This subsection also provides two procedural safeguards. First, both a representative of the department and a law enforcement officer must personally observe the emergency situation. Second, the relocation may be imposed only when authorized by court order. Even then such relocation cannot be imposed without consent for more than forty-eight hours. § 410.102(6), Fla.Stat. (1979).

Within the forty-eight hour period, a preliminary hearing must be held to determine whether there is probable cause for protective placement. § 410.104(3). At the hearing the allegations of the petition, that the person is suffering from the infirmities of aging and that there is a substantial risk of life-threatening physical harm or deterioration, must be proved. If the allegations are proved, the court may order temporary placement pending a hearing on the need for continuing protective services. § 410.-104(4). ■

We hold that these procedures comport with the constitutional requirements of due process. The appellants’ attorney argues that due process requires notice, an opportunity to be heard, and effective assistance of counsel, citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) and In re Beverly, 342 So.2d 481 (Fla. 1977). We find these requirements for civil commitment proceedings to be inapplicable to situations such as are reached by the statute under consideration. The purpose of this statute is not to incarcerate or confine mentally incompetent persons by commitment to state custody, but rather to free persons suffering from infirmities of aging from dangerous or oppressive conditions. The stated purpose of the statute— to protect the elderly—is genuine and not a euphemism for punishment. Compare In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (fact that purpose of juvenile delinquency proceedings was rehabilitation and protection of child rather than criminal punishment did not justify denial of all due process rights).

Furthermore, the statute is limited to the situation of an emergency. The state, in such situations, must fulfill its obligation to preserve life whenever it can. See Satz v. Perlmutter, 362 So.2d 160 (Fla. 4th DCA 1978), aff’d, 379 So.2d 359 (Fla. 1980). This responsibility must be balanced against an individual’s rights of self-determination and privacy. Under normal conditions, the state may not enter a person’s home, take custody, and transport the person to another location without following the strict procedures of criminal prosecution or civil commitment. Due process, however, is not offended by a temporary loss of liberty when a person’s life may be threatened. See Fhagen v. Miller, 29 N.Y.2d 348, 328 N.Y.S.2d 393, 278 N.E.2d 615, cert. denied, 409 U.S. 845, 93 S.Ct. 47, 34 L.Ed.2d 85 (1972).

Removing an individual from an environment as unhealthy as the one in this case is essential to making a proper determination of whether the individual should be temporarily or permanently placed elsewhere. The wishes of the individual should be highly regarded and adequately represented, since the statute is designed for his benefit. The legislature recognized that some elderly people may in effect be held hostage by others or by their own environment. They may not know what is best for them or even know what they want after living under such conditions. Thus, relocating such persons and providing them with proper nourishment and medication is necessary to help them to regain a proper perspective on life so they can make a deliberate and unconstrained decision on whether to return.

Appellants’ attorney argues that the court’s authority to order continuing services is unconstitutionally vague and may lead to an indefinite period of involuntary commitment. We do not believe so. Reading the statute as a whole we find that continuing services should be ordered only until the person is no longer facing a substantial risk of life-threatening harm or deterioration. After that point the department can no longer render any services which are not voluntarily received.

Finally, appellants’ attorney argues that the state lacks the authority under the par-ens patriae doctrine to impose services, treatment, and confinement upon competent elderly persons. We first note that under no circumstances can medical treatment be forced upon a person “in contravention of the stated or implied objection of such person.” § 410.101, Fla.Stat. (1979). We further note that

the parens patriae notion [is] that the state is the ultimate guardian of those of its citizens who are incapable of caring for their own interest. (Citations omitted). Valid exercise of the parens patriae power presumes an incapability to manage one’s affairs that approximates, if it is not identical with, legal incompetence to act.

In re Beverly, 342 So.2d at 485, quoting Lynch v. Baxley, 386 F.Supp. 378, 390-91 (M.D.Ala. 1974). People whose mental and physical capabilities are deteriorating because of old age may be approximating legal incompetency. Thus the state has the authority to exercise its parens patriae powers when it appears such persons are incapable of caring for themselves.We affirm the trial court’s order denying the motion to dismiss.

It is so ordered.

ADKINS, OVERTON and McDONALD, JJ., concur.

SUNDBERG, C. J., and ENGLAND and ALDERMAN, JJ., would dismiss the appeal as moot.


author: ENGLAND, Justice.

text:
    STATE of Florida, Appellant, v. Robert K. WERNER and Jack E. Carlson, Appellees.
    No. 57920.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 8, 1981.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State’s Atty. and Arthur Joel Berger, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee Robert K. Wer-ner.
    Martin Lemlich, Miami Beach, for appel-lee Jack E. Carlson.
   ENGLAND, Justice.

Robert K. Werner and Jack E. Carlson were charged by information with trafficking in cocaine in violation of section 893.135, Florida Statutes (1979). This appeal comes to us under article V, section 3(b)(1), of the Florida Constitution (1972), from an order of the trial court granting their motions to dismiss the charges against them and declaring the statute unconstitutional.

All but one of the issues presented by this appeal were resolved against Werner and Carlson in State v. Benitez, 395 So.2d 514 (Fla.1981), and State v. Yu, 400 So.2d 762 (Fla. 1981). The one unresolved issue they raise is whether the term “may” in section 893.135(3) is unconstitutionally vague, since it vests the prosecutor with unbridled discretion when engaging in so-called “post-conviction information bargaining.” Subsection (3) provides that “[t]he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals.” Werner and Carlson claim that this provision leaves open the possibility that a prosecutor might secure “substantial assistance” from the defendant, and yet not live up to his side of the bargain by moving for a reduction or suspension of the sentence. While their concerns may be sincere, they do not provide a constitutional basis to invalidate the enactment.

State attorneys are “the prosecuting officer[s] of all trial courts” under our constitution , and as such must have broad discretion in performing their duties. Discretion to initiate the post-conviction information bargaining process is inherent in the prose-cutorial function. Absent a clear constitutional violation in a particular factual context, we refuse to intrude on the prosecuto-rial function by holding subsection (3) unconstitutional on its face.

Additionally, section 893.135 does not directly abrogate the substantive rules of law governing plea bargaining and plea arrangements , and these rules should be followed, to the extent they can in a post-conviction context, by the parties and the trial judge. Good faith compliance with rules governing the plea bargaining process will prevent prosecutorial overreaching and alleviate any possible constitutional infirmities which might plague the unique procedure established by subsection (3).

The order of the trial court is reversed, and the case is remanded for further proceedings.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . Art. V, § 17, Fla. Const.

      . See, e. g., Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Santo-bello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Fla.R.Crim.P. 3.170 & 3.171.


text:
    THE FLORIDA BAR. In re Arthur A. KIMMEL.
    No. 59914.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 11, 1981.
    Louis M. Jepeway of Jepeway &■ Jepe-way, Miami, for petitioner.
    Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Asst. Staff Counsel, Miami, for respondent.
   PER CURIAM.

Arthur A. Kimmel has petitioned for reinstatement to The Florida Bar. Petitioner was disbarred from the practice of law on November 30, 1960, for conversion of $18,-000 of his client’s property. State ex rel. The Florida Bar v. Kimmel, 124 So.2d 705 (Fla.1960). He first sought reinstatement in October of 1975. After proceedings before a referee and The Florida Bar Board of Governors, this Court issued the following order:

Upon consideration of the Recommendation of the Board of Governors of The Florida Bar, the petition of Arthur A. Kimmel for reinstatement to The Florida Bar is dismissed without prejudice to reapply after satisfactory completion of the Florida Bar Examination and full restitution is made.

Petitioner filed the present petition for reinstatement on November 10, 1980, in which he furnished evidence that restitution was complete, but in which he requested that this Court waive the bar examination requirement set forth in its previous order. The Florida Bar has moved that the petition for reinstatement be dismissed because petitioner has not passed the bar examination as required by this Court’s previous order. The referee recommended that the Bar’s motion to dismiss be granted.

Petitioner has not actively practiced law for over twenty years, and the record reflects that he has since been employed in a nonlegally related field. Under these circumstances, we find that the requirement of passing the Florida Bar examination is not an extreme requisite to reinstatement. Especially in cases for reinstatement, the public must be assured of a lawyer’s rehabilitation and continuing competency. The bar examination is but one indicator that a lawyer is still qualified to practice.

We reaffirm our previous order and grant the bar’s motion for dismissal without prejudice so that petitioner may re-petition after successful completion of the Florida Bar examination. We direct that execution issue against petitioner for the costs of these proceedings in the amount of $108.75.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: ENGLAND, Justice. BOYD, Justice, ENGLAND, Justice.

text:
    In the Matter of INTEREST ON TRUST ACCOUNTS.
    Nos. 51182, 60350 and 60351.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied, Opinion Clarified Aug. 5, 1981.
    Russell Carlisle, President, Florida Bar Foundation, Fort Lauderdale, and Henry G. Zapruder of Cohen & Uretz, Washington, D. C., on behalf of the Florida Bar Foundation, Inc. and sixty-seven active members of The Florida Bar.
    John F. Harkness, Jr., Executive Director, Tallahassee, Leonard H. Gilbert, President, Tampa, Samuel S. Smith, President-elect, Miami Beach, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, Bill Wagner of Wagner, Cunningham, Vaughan and McLaughlin, Tampa, Chairman for the Florida Bar Integration Rule and Bylaws Committee, and Ben H. Wilkinson, Chairman, Special Committee, Tallahassee, on behalf of the Board of Governors of The Florida Bar.
    Roderick N. Petrey and Randall C. Berg, Jr. of the Florida Justice Institute, Inc., Miami, on behalf of: American Civil Liberties Union, Common Cause of Florida, Florida Audubon Society, Florida Clearinghouse on Criminal Justice, Florida Conference of NAACP Branches, Florida Institutional Legal Services, Inc., Florida Legal Services, Inc., Florida Public Defender Association, Governor’s Commission on Advocacy for Persons With Developmental Disabilities, Project Directors’ Association, Southern Christian Leadership Conference, and Southern Legal Counsel, Inc.
    Sara-Ann Determan, Chairperson, Special Committee on Public Interest Practice, Washington, D. C., on behalf of: the American Bar Association.
    L. Orín Slagle, Dean, Florida State University College of Law, Tallahassee, on behalf of: Florida State University College of Law, the University of Florida, Spessard L. Holland Law Center, Nova University for the Study of Law, and Stetson University College of Law.
    Robert M. Curtis, Fort Lauderdale, Henry P. Trawick, Jr., Sarasota, and Gerald L. Brown, Pensacola, Responding to Petition.
   ENGLAND, Justice.

This proceeding emerges from the Court’s 1978 program designed to generate interest on lawyers’ trust accounts for the improvement of the administration of justice in Florida. The original plan, permitting voluntary participation by lawyers and law firms, was once amended to meet technical requirements of the Internal Revenue Service (IRS) and to accommodate The Florida Bar’s request that we remove a requirement that compliance certificates be prepared for attorneys by certified public accountants. Notwithstanding these alterations, the program has never been implemented for its intended purposes due to delays in resolving with IRS the appropriate federal income tax treatment of the earnings, payable to the Florida Bar Foundation, Inc., to be generated on clients’ funds held in lawyers’ accounts.

Representing that tax considerations could be favorably resolved with IRS by a minor amendment to the program, the Foundation, joined by the Bar, has proposed amendments to the program for that purpose. In doing so, the Foundation has also asked that the program be made mandatory for all Florida attorneys, a position made possible by recent changes in the banking/ laws. In light of the latter proposal, the Foundation asked that we announce the changes and solicit comments from all interested parties. Promptly after the change proposals were submitted we did just that, simultaneously suspending the original program until further order of the Court. We have received responses and comments on the Foundation’s proposals in abundance, and spirited oral argument was held on June 2.

I

The response to our request for comments was an outpouring of mail and filings, predominantly hostile to the proposed changes. In addition to communications from the Foundation explaining the changes proposed, and from the Bar (presenting a catalogue of unanswered concerns), we have heard from attorneys, law firms, bar associations, bar committees, law schools, the Florida Bankers’ Association, and various public interest law organizations. All these materials have been extremely helpful to us. They properly and candidly raise moral, legal and practical problems that inhere in the Foundation’s proposals, and they express the sentiments of many attorneys, both on their own behalf and on behalf of their clients generally.

Interestingly, the federal problems which necessitated submission of program changes attracted almost no interest from those who communicated with us. Some concern was expressed about the uncertainty and vagueness of the terms which IRS deems essential to describe the categories of clients’ funds brought within the ambit of this trust account program — those “held for a short period of time” or “nominal in amount.” But those concerns present neither an impediment to the adoption of a revised program nor an occasion for more specificity, for the plan we adopted in 1978 always contemplated precisely the same “nominal” and “short” standards, which have classicly and historically governed attorneys in their trust account practices.

Changes which are said to be necessary to make the program acceptable to IRS revolve around the federal income tax concept known to tax practitioners as the “assignment of income” doctrine. That doctrine, which is an outgrowth of a graduated, federal income tax rate structure, was first articulated in Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930). It evolved to prevent persons who generate income by their services or with their property from shifting that income to other persons in whose hands the income either would not be taxed or would be taxed at significantly lower rates. Classic income assignment situations involve conscious, tax avoidance schemes by taxpayers in high income brackets. Over the years the common elements of prohibited income assignment have been a tax avoidance motive and a scheme or device for shifting income to related or controlled taxpayers. See, e. g., United States v. Basye, 410 U.S. 441, 93 S.Ct. 1080, 35 L.Ed.2d 412 (1973); Commissioner v. First Security Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085, 31 L.Ed.2d 318 (1972); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940); Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239 (1930).

In its efforts to enforce the tax laws and prevent erosion of the nation’s tax base, the Internal Revenue Service has always been wary of plans with tax connotations which, although not designed for tax avoidance, might create precedent capable of being used for that purpose. Thus, any tax-shifting proposal submitted to IRS for approval invariably receives special scrutiny, not only for its motivations but as well for any incidental or implicit precedential potential.

This Court’s 1978 program for the generation of income on client’s accounts, seen by IRS as involving a conceptual reassignment of interest income from clients to the Foundation, raised concerns within IRS that the program could become a breeding ground for yet unborn tax avoidance schemes. As a result, hesitancy existed to approve taxa-bility to the Foundation of the interest generated on lawyers’ commingled trust accounts. IRS acknowledged that, unlike all prior, prohibited assignment of income situations, the Court’s program did not in any way involve taxpayer-initiated, tax evasion among related or controlled taxpayers. Indeed, it was noted that the Service had approved income transfer plans fraught with far more tax avoidance risk as precedent than the Court’s program. Nonetheless, the Service was slow to rule approvingly on the Court’s program as originally adopted, and because the feasibility of implementing the program depended upon the earned income on trust accounts being treated as taxable to the Foundation rather than to individual clients, the withholding of approval effectively barred implementation of the program.

Eventually, tax counsel was able to obtain firm assurances from IRS that the tax treatment being sought for the program would be approved so long as clients could in no way and to no degree control the creation or destiny of earnings generated on their attorney-held funds. The linchpin of approval was removal of all client control over the placement or non-placement of funds at interest — that is, elimination of the client’s veto over the investment of funds from which he could never benefit because the amounts on deposit were either too small in amount or to be held for only a short duration. On the basis of IRS’ proposal for approval, and despite the continued belief by the Foundation’s tax counsel both that no client “income” ever existed under the program and that the principles of Lucas v. Earl were in no wise implicated, the Foundation proposed that we amend the program to eliminate all client control and, in the process, reaffirm the “nominal in amount” and “short in time” standards for program applicability. This we now do.

But it was not the tax aspects of the Foundation’s proposal which raised the brouhaha which attended its submission to the Court. The Foundation’s other proposal — that the program be converted from a voluntary to a mandatory plan — has evoked the most vehement response from bar members. The range of comments on this point run from respectful disagreement to hyber-bolic outrage. Specific objections can be categorized as concerns that the Foundation’s revised program will have these effects:

1. burden attorneys with new record-keeping responsibilities and costs;
2. be unfair to clients, or deprive them of their earnings;
3. adversely affect (or some say, further erode) the public image of the legal profession;
4. generate potential disciplinary problems for attorneys, due to the absence of specific guidelines or standards for handling clients’ accounts;
5. produce undetermined effects on professional liability insurance premiums;
6. discriminate unfairly, because NOW ^ accounts are not available to incor-N porated attorneys under current banking regulations;
7. require that attorneys monitor compliance with the payment and reporting requirements of financial institutions;
8. essentially mandate contributions from attorneys to the Foundation, since commingled trust accounts contain unearned legal fees and fees which have been earned but not yet withdrawn;
9. interfere with traditional attorney-client relationships, whether no explanation is made to clients concerning the use of account earnings (thus creating a conflict of interest between client and the Foundation), or whether an explanation is offered (thus choosing, in effect, the Foundation as the charity to which the proceeds of the client’s fund will be paid);
10., interfere with attorney-banker rela- ' tions, to the point that a change of | institutions would be required in • . cases where banks do not pay inter- ; est on demand accounts;
11. confiscate clients’ funds, in violation of the “taking” provisions of the federal Constitution (noting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (U.S.1980));
12. increase clients’ demands for more individual, interest-bearing accounts; and
13. discourage placing any funds in escrow with attorneys.

In addition to this plethora of concerns, we have been peppered with euphemisms ranging from declarations of the most current principles of Republicanism (“justices, too, read the election returns”) to restatements of the traditions of an early frontier era (“leave us alone”). It has been suggested that the Foundation’s proposal is not only outside our constitutional authority, being a legislative function (taxation), but is unconstitutional (taxation without representation, among other reasons), is unwarranted (because some attorneys can now get interest for their clients on their individual accounts), is unwise (because the Foundation is selected as sole recipient of any earnings which are generated), and is un- . just (bankers complain that they cannot even earn interest on their own funds which are escrowed with attorneys). And as if these were not sufficient concerns for our ingestion, we have been told that the Foundation’s proposals involve so many unresolved problems — such as uncertainty in application to Florida attorneys who practice out of the state or to multistate law firms, unrepresentativeness of the Foundation’s currently authorized governing board, and uncertainty as to the treatment of service charges from financial institutions — that the only sensible thing to do is to appoint a study committee to examine the matter further.

Quite obviously, the Foundation’s proposal has struck a nerve in the legal profession, and the focus of pain is the mandatory nature of the proposal. The original idea of creating a program of this type brought some negative views, but no comparable outcry attended the initiation and development of our original, voluntary program.

We cannot ignore the response of our bar. Indeed, we requested comments and criticisms precisely because we did not deign ourselves capable of discerning all possible problems, legal and practical, or all reasonable objections to the Foundation’s proposal.

In its persistently careful effort to bring about a trust account interest program which can at last see the light of day, the Foundation has filed a response with the Court which has met virtually every legitimate concern and problem with either an answer, an accommodation, or an acknowledgment of the difficulties. It urges us, nonetheless, not to send the program back into studied oblivion. On this point we are in complete accord with the Foundation. The time has come either to implement this concept, or to scrap it. We choose to implement. In attempting to do so, of course, we have carefully confronted the responsible concerns of the program’s philosophical opponents and friends, as described below. But first, a note of frustrated fatalism is clearly in order.

If we have failed in any constitutional or tax sense to resolve the obstacles to implementation, and we do not believe that we have, it appears to us that we have done our best and should end our labors here. Thus, if we are further forestalled from advancing the public good through the program outlined below, it seems to us that the program will simply have to be written off as one of those good ideas whose time has not yet come. Our decision today, subject only to any technical difficulties properly and promptly brought to our attention, is our last endeavor in this field.

II

Two dominating considerations shape our implementation methodology. First, we acknowledge that the banking laws in Florida today are not what they were in 1978, and that the changes are sufficiently profound as to warrant reconsideration of the original plan. Second, the public and institutional responses we have received underscore what we earlier knew in approving a voluntary plan; namely, that Florida is not wholly like the provinces and countries which have implemented trust account interest programs in the homogeneity of its banking institutions, in the centralization of its attorney populace, or in the forms of governmental control exercised over its legal profession.

In addition to these matters, a new consideration which affects the program, in light of the Foundation’s request that we make it make it mandatory is the Supreme Court’s 1980 decision in Webb’s Fabulous Pharmacies, Inc. v. Beckwith. That consideration is whether the earnings on clients’ funds are “property” of the clients which constitutionally cannot be taken from them without compensation. The dictates of the fifth and fourteenth amendments to the United States Constitution, as articulated in Webb’s, obviously cannot be ignored in} framing any program involving a state-di-' rected use of income generated on private funds.

Ill

Taking all factors into account, we adopt these concepts for a voluntary program designed to generate interest on lawyers’ trust accounts, effective as of September 1 unless modified by intervening order the Court:

(1) We now reaffirm the goals of our 1978 program, including the payment of interest under the program to the Florida Bar Foundation, Inc., and we reaffirm our commitment to their accomplishment with all possible speed.

(2) We now reaffirm our initial decision that interest be made available under the program only on a voluntary basis — that is, on the basis of willing participation by attorneys and law firms, whether proprietor-ships, partnerships, or professional corporations.

(3) We accede to the concerns of IRS with regard to a possible erosion of the “assignment of income” doctrine, and we direct the application of this program to all clients of electing, participating attorneys or firms whose funds on deposit are either nominal in amount or to be held for a short period of time.

(4) We reaffirm these cardinal principles concerning clients’ funds held in trust accounts by attorneys and firms who elect NOT to participate in the program:

(a) no earnings from the funds may be made available to the attorneys or firms;

(b) upon request of a client, earnings may be made available to the client whenever possible on deposited funds which are neither nominal in amount nor to be held for a short period of time; provided however, inasmuch as traditional attorney-client relationships do not compel attorneys either to invest clients’ funds or to advise clients to make their funds productive, no charge of ethical impropriety or other breach of professional conduct shall attend a failure to invest or to advise of the possibility of investing clients’ funds of whatever amount or duration held;

(c) clients’ funds which are nominal in amount or to be held for a short period of time, and for which individual income generation and allocation is not arranged with a financial institution, must be retained in a non-interest bearing, demand trust account; and

(d) the determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests exclusively in the sound judgment of each attorney or law firm, just as it has from time immemorial, and no charge of ethical impropriety or other breach of professional conduct shall attend an attorney’s exercise of judgment in that regard.

(5)We reaffirm these principles concerning clients’ funds which are held by attorneys and firms who elect TO participate in the program:

(a) no earnings from the funds may be made available to the attorneys or firms;

(b) upon request of a client, earnings may be made available to the client whenever possible on deposited funds which are neither nominal in amount nor to be held for a short period of time; provided however, inasmuch as traditional attorney-client relationships do not compel attorneys either to invest clients’ funds or to advise clients to make their funds productive, no charge of ethical impropriety or other breach of professional conduct shall attend a failure to invest or to advise of the possibility of investing clients’ funds of whatever amount or duration held;

(c) clients’ funds which are nominal in amount or to be held for a short period of time shall be retained in an interest bearing checking or savings trust account, with the interest (net of any service charges or fees) made payable to the Florida Bar Foundation, Inc., and

(d) the determination of whether a clients’ funds are nominal in amount or to be held for a short period of time rests exclusively in the sound judgment of each attorney or law firm, and no charge of ethical impropriety or other breach of professional conduct shall attend an attorney’s exercise of judgment in that regard.

(6) We reject the Foundation’s proposals for mediating claims against attorneys.

(7) We note and approve the Bar’s withdrawal of its proposed addition of a new paragraph (f) to Integration Rule 11.02(4)

(8) We remove as unnecessary under current banking laws those provisions of our original program which were designed to assure the immediate availability of clients’ funds held at interest. v ' •

(9) We remove the notice requirement provisions of our original program.

(10) We now reaffirm the general, governing principles for implementation of a trust account program which are set forth in paragraphs 1 through 5 of section VIII of our original opinion.

IV

We envision extensive participation by lawyers and law firms in this voluntary program. We have deliberately made the program simple and inexpensive by: (i) omitting any burdensome or costly accounting and record-keeping requirements; (ii) approving and continuing traditional attorney-client relationships and responsibilities; (iii) approving and continuing existing practical and ethical procedures concerning either the investments of clients’ funds or investment advice, including the abolition of any requirement that clients be notified of the program; and (iv) providing that the Foundation shall absorb any financial institution’s special charges or fees for participation in the program, by directing that interest payments shall be net of such charges and fees.

With respect to constitutional concerns regarding the program, we see none that bars implementation. There are many distinguishing features between the program today implemented for the generation of interest on lawyers’ trust accounts, and the legal requirements of state law which led the United States Supreme Court to invoke the fifth amendment “taking” clause for the protection of private property in its Webb’s decision. The most relevant distinction, plainly, is the fact that no client is compelled to part with “property” by reason of a state directive, since the program creates income where there had been none before, and the income thus created would never benefit the client under any set of circumstances. We know from Webb’s, 101 S.Ct. at 450, that

[pjroperty interests ... are not created by the constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . .

It follows that no client has a “property interest,” in the constitutional sense, which is being taken from him by this program.

Of course, another vast difference from Webb’s is the voluntary nature of this program, for the program today approved is not abusive of the rights, interests or funds of clients. It is volitional not only from the perspective of attorneys but, in the most practical sense, from the will of clients, for no attorney or firm will participate in the program in the face of a strenuous objection from its clients. Nor should Florida attorneys jeopardize clients or client relations by dogmatically insisting on participation in the program in the face of announced opposition of a serious nature. We doubt that client concerns will prohibit broad participation in the program, however, since only clients with nominal funds or those to be held for short durations— that is, clients,who cannot themselves benefit from investing — are in effect providing the pooled income source. In this sense of client acquiescence to program participation, any argument based on the “taking” aspect of Webb’s is attenuated beyond tenability.

We reiterate that notification to clients whose funds are nominal in amount or to be held for a short period of time is unnecessary for those attorneys and firms who choose to participate in the program. That is not to suggest that many will not want to notify their clients of their participation in the program in some fashion. Plainly, there is no impropriety in an attorney or firm advising all clients of their willingness to advance the administration of justice in Florida beyond their individual abilities and in conjunction with other public-spirited members of their profession. But participation in the program will involve no more than an affirmative desire to participate, coupled with the attorney’s or firm’s communication of that desire to an authorized financial institution. That communique should contain only an expression of the attorney’s or firm’s desire to participate in the program and, if the institution has not already received appropriate notification, advice regarding IRS’ approval of the taxa-bility of earned interest or dividends to the Foundation.

We urge the Bar to encourage participation in this program, and in furtherance of that end to assist Florida financial institutions and Florida attorneys with as much information and aid as may be necessary to establish and maintain simple and inexpensive compliance procedures. The foremost objective of our 1978 program was to enhance the capability of the legal profession to deliver legal services to the poor. The broad delivery of legal services has long been a cherished commitment of this Court. At a time in this nation when existing governmental resources for this purpose are drastically threatened, our re-visitation to this program provides a propitious occasion to reemphasize our commitment and to revalidate our methodology.

We urge all Florida lawyers who are able to participate in the program to do so. We trust they will follow the example of the Foundation’s leaders, whose perseverance and patience has marked the road toward an expanded access to justice throughout our state.

The following, revised provisions of Rule 11.04(d) are hereby adopted, effective on September 1,1981, unless modified by intervening order of this Court.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ALDERMAN and MeDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

Integration Rule 11.02(4)(d)

(strike-throughs indicate deleted material; underscoring indicates added material.)

(d) Interest-bearing Trust Savings Accounts. A member of The Florida Bar who elects to create or maintain an interest-bearing trust a trust savings account for clients’ funds which are nominal in amount or to be held for a short period of time shall comply with the following provisions:

(i) A-trust savings An interest-bearing trust account may be established with any bank or savings and loan association authorized by federal or state law to do business in Florida and insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation. Funds in each interest-bearing trust account shall be subject to withdrawal upon request and without delay.

(ii) Except as otherwise required by law, funds in-each trust-savings account shall be subject to withdrawal, or to transfer to a trust checking account, upon- request and without-delay. — Any-depository institution permitted by law to-require advanoo notification (30 or 60 days)before allowing withdrawal of savings deposits is nonetheless eligible-to act as a depository for trust savings-accounts under this rule if it meets the requirements of paragraph-(i) above; provided-the institution has-not acted.to delay the withdrawal-of deposited funds (other than-for the clearance of deposited deposited funds or-for-good cause attributable to the-circumstances of -the-particular depositor rather than the institution’s financial needs or general polioy)-atany time daring the-past five years. — An-otherwise qualified-institution which has-not been-in existonoo for fivo full years may serve as a trust savings account depository if - it has met- the requirements of this subsection throughout its -existence.

(iii) An institution shall cease to be eligible for the receipt of trust savings funds at such time as it fails to qualify under paragraphs- (i) or (ii-); — Any lawyer or law firm maintaining a trust -savings- account against which immediate withdrawal-rights are-refused-shall immediately notify the Florida Bar-Foundation, Inc. of the name and address of the depository institution and the date-of such refusal.

(iv)-If, pursuant — to governing law or banking regulations, a depository institution requires notice in writing for an intended withdrawal not less-than 39 -days before such withdrawal is-made, the lawyer or law firm may-certify to-The Florida-Bar ■Foundation, Inc. that the-elient-’s-funds-de-tained as a result of the depository institution’s notification requirement aro needed immediately for-the clients affairs.

(A-)-Upon receiving such-certification-,-the Foundation shall be authorized to advance to the certifying- lawyer or-law firm-from the — interest—earned—on—trust—savings accounts-, an amount of money necessary to meet the client’s emergency needs subject, however, to limitations expressed in subpar-aaa*anli_id. UCLPCCT71JI i vyy*

(B) Simultaneously with-eertification, the lawyer-or law firm shall direct the depository institution in-writing, with-a copy to the Foundation, that upon the-expiration of the notification period- detained funds equal-to the amount advanced by — the Foundation shall be remitted direotly to the Founda-

(G) — The Board-of-Directors-of the Foundation may adopt rules of procedure reasonably-necessary-to implement the authority provided in subparagraph (A) and to assure full reimbursement of sums advanced. — Periodically--the Board--may-set-dollar limitations on the amount of money whioh-may be advanced to-meet the -emergency needs of any client in the event-a notification requirement is imposed by-a-depository institution.

(ii) (v) The rate of interest payable on any interest-bearing trust savings account shall not be less than the rate paid by the depository institution to regular, non-attorney savings depositors. Higher rates offered by the institution to customers whose deposits exceed certain time or quantity minima, such as those offered in the form of certificates of deposit, may be obtained by a lawyer or law firm on some or all of deposited funds so long as there is no impairment of the right to withdraw or transfer principal immediately. (except — as accounts generally may be subject to statu-tery — notification—requirements);—even though-interest may be sacrificed thereby.

(iii) (vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution:

(A) to remit interest or dividends, as the case may be, on the average monthly balance in the account, at least quarterly, to the Florida Bar Foundation, Inc.;

(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and

(C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance for each month of the period for which the report is made.; and any remittances to the Foundation made during that period pursuant to sub-paragraph (iv) (B).

(vii) Lawyers and law -firms electing-to deposit client funds in — a trust savings account-shall transmit-to each client -for whom-trust funds are now held, and to each new-dient for whom funds are to be held, a copy of the notice reproduced -below, — The Florida Bar shall print and- maintain a supply of- this notice, and distribute copies without charge to those who may-request them» — The Bar’s costs-for printing-and distribution shall be treated as a cost of administering the program, and shall — be reimbursed to the-Bar by-the Foundation from -interest earned on trust — accounts.

Important Notice to Clients

For your-protection, the Florida Supreme Court-requires that all — funds of a-client which are held by an attorney must be deposited in a trust account-separate from the attorney’s, andr-must-be kept-available for immediate -withdrawal. — Because most clients’ funds which come-into the hands of attorneys are relatively small-in-amount or are to be held-f-or relatively short-periods of time, it is impractical for attorneys to establish a separate account for each olient or to invest each client’s funds to earn interest= — For this-reason client funds are held in a common trust -checking account on-which the -depository bank pays no interest.-

Under a new program approved-by-the Florida Supreme Court; attorneys are-now permitted to deposit clients’ common trust funds-in -savings - accounts. — Due-to the expense and complexity which would attend any- attempt to compute or-distribute the interest attributable-to each client’s-funds, it-is-not feasible to pay-to individual clients the- earnings on their proportionate- share of common trust savings accounts. — Of course, no-~attomey is permitted to receive — the earnings-on-a-ciient’s funds, either. Rather under the Supreme Court’s new directive, the interest income from clients’ deposits ■will be used -to-fund programs-designed to benefit-the general public.

The-goals of the-Court’s program-are to improve-the administration-of -j ustice in this state and to expand the delivery of legal services -te-the-poor.

We have sent you-this explanation-,-at the direction of the Florida Supreme Court; to advise you-tha-t-we- are participating- in the UourUs-new-program and that tho funds yon-have entrusted-to-us- for your affairs (other-than attorneys — fees) will be deposited in — an interest-bearing trust savings account un-less-you specifieaiiy-give~us written instructions — to the contrary. — A- directive not-to-allow such use of your funds will — net—produce income for-your» — Your funds will -simply- be placed-4n-a--non-interest-bearing — tr-ust checking account until TXwv«vvCT

BOYD, Justice,

dissenting.

I concurred in the opinion of the Court when we originally decided to attempt to fund the Florida Bar Foundation with interest earned on lawyers’ trust accounts. In re Interest on Trust Accounts, 356 So.2d 799 (Fla.1978). In view of the difficulties that have delayed the implementation of the program, however, I have approached the instant rule-amendment proceeding with an open mind on the question whether “to implement this concept,” to study it further, “or to scrap it.” Opinion of the Court at 8. While the objective sought to be achieved by the plan — the funding of the Florida Bar Foundation — is highly commendable, the serious unresolved problems brought to our attention by the many members of the Bar who participated in this proceeding compel me to withhold my approval.

Unlike the majority, I find that a significant number of the responses we received did raise questions about the “assignment of income” problem. While not discussing the problem in the technical language of the tax practitioner, many lawyers expressed a strong, common-sense feeling that income earned from the investment of trust funds simply must be deemed in the first instance to be the property of the owners of the funds. Some lawyers expressed concern that the Internal Revenue Service will treat such income as taxable to the owners. Without a requirement for notice to clients of the investment of their funds, some attorneys are worried that such clients may be charged income they never knew they received.

The majority opinion discusses the resolution of the problems of income assignment and taxability without documenting the statements made regarding the approval or assurances of the Internal Revenue Service. Unless we receive a definitive and binding ruling from the Service regarding the tax liability of the owners of trust funds, the attorneys entrusted with them, and the Foundation, it is unwise to implement the plan.

The same common-sense considerations that prompt concern on the question of who will be deemed to earn the income generated by clients’ funds leads some members of our Bar to question whether the channeling of the income to the Foundation without the actual consent of the trust fund owners violates the Fifth Amendment ban on deprivation of property without due process of law. I find merit to this argument.

The majority’s answer to the “taking” argument is inadequate. The Court says that the program creates income where there was none before, so no property is actually taken from the owners of the trust funds. But the majority also recognizes that when trust funds are kept in non-interest-bearing accounts, the beneficiaries are the~"depository banks. The point is that there is almost always income from properly invested capital. If a lawyer keeps a client’s funds in an office safe or in a shoe box, there is no income. But once deposited with a financial institution, the money, within the limits of the applicable banking laws and regulations, is put to work earning income. If the depository institution pays no interest to the depositor, the institution benefits financially. But if interest is paid, the depositor receives income. The majori-i ty acknowledges that it may now be possible for a financial institution to provide interest allocation for multiple depositors in, single trust accounts, even though the indi-' vidual clients’junds may be nominal in amount or to be held for a short period of time. Yet the Court still insists that to. direct the income to the Foundation without notice to and consent of the owners does not affect their property interests. This is inconsistent.

I also believe that the lack of a requirement for actual notice to’and consent of persons whose property will generate the income that is to fund the plan will create a conflict of interest between the Foundation and owners of the affected trust funds. Many protesting members of the Bar have argued that the lack of notice will also adversely affect the public image of the legal profession in Florida.

The plan adopted by the Court today will put grave pressures on the attorney-client relationship. While it is recognized in a most general sense that lawyers should hold trust funds that are greater than nominal in amount or to be held for more than a short period of time in interest-bearing accounts, it is left to the unfettered and unguided discretion of attorneys to decide whether a particular client’s property meets these criteria. Despite the attempt to exonerate in advance a lawyer’s decision on this matter that may eventually be shown not to have been in the client’s best interest, I predict that controversies and charges of ethical impropriety will arise from lawyers’ participation in the .program.

I am sympathetic to the goals of the Florida Bar Foundation, and would be willing to concur in the result of the majority opinion were it not for the serious problems I have just discussed. But at the same time I have been deeply affected by the communications of protest we have received from many members of the Bar. I note in particular the letter of Mr. Jay H. Beckerman, who writes in part:

Any attorney or client who chooses . . . to contribute to the Florida Bar Foundation, Inc., has been and should be free to do so. That foundation or any other form of a charity or eleemosynary entity or purpose should be required to attract donations on its merits, and not be enriched by a funneling scheme with which the coerced donors do not agree and did not choose of their own free will.

With the plan for charitable use of interest on lawyers’ trust accounts in its present posture, I must respectfully dissent.

ORDER OF CLARIFICATION

ENGLAND, Justice.

In accordance with our request that technical difficulties in the trust account program be brought to our attention promptly, The Florida Bar has filed a petition requesting two changes to the Integration Rule by which the program is. implemented. The Bar advises us that not all depository institutions utilize an average monthly balance method for computing interest or dividends, and it requests that we modify Rules 11.-02(4)(d)(iii)(A) and (C) appropriately. The Bar’s request is granted, and the operative language of Rule 11.02(4)(d)(iii) which will become effective on September 1, 1981, as amended on July 16,1981, is further amended to read:

(iii) (vi) Lawyers or law firms electing to deposit client funds in a trust savings account shall direct the depository institution:

(A) to remit interest or dividends, as the case may be, on the average monthly balance in the account or as otherwise computed in accordance with an institution’s standard accounting practice, at least quarterly, to the Florida Bar Foundation, Inc.;
(B) to transmit with each remittance to the Foundation a statement showing the name of the lawyer or law firm for whom the remittance is sent and the rate of interest applied; and
(C) to transmit to the depositing lawyer or law firm at the same time a report showing the amount paid to the Foundation, the rate of interest applied, and the average account balance for each month of the period for which the report is made.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . In re Interest on Trust Accounts, 356 So.2d 799 (Fla.1978).

      . Matter of Interest on Trust Accounts, 372 So.2d 67 (Fla.1979).

      . In the Matter of Interest on Trust Accounts, 396 So.2d 719 (Fla.1981).

      . Over sixty identical “form” letters expressing dissatisfaction with the program were filed from attorneys in the Dade County area. Most of these mailings appear to originate from small or one-man law firms. Not all communiques were adverse to the Foundation’s proposals, however. Support for the changes come from four Florida law schools and from various public interest law committees and organizations.

      . See 356 So.2d at 802 & n.20, 804.

      . Rev.Rul. 479, 1976-2 C.B. 20 (members of medical staff of hospital who assign right to receive income from teaching cases to research and educational foundation as a condition precedent to being member of staff not taxable on fees for treating teaching cases because they have “no control over the fees charged, or the collection and disbursement of such fees.”); Rev.Rul. 274, 1969-1 C.B. 36 (faculty physicians of a medical school who provide medical services to indigent patients at a hospital are not required to include in their gross income fees collected and remitted to the university in accordance with university policy and agreement where “[u]nder this arrangement, no individual physician would ever have control of the funds collected.”).

      . Under the Court’s original program, of course, clients could prevent the realization of income but they could not benefit from their action. No income would be earned for the Foundation if an individual client took affirmative steps to notify his attorney that he did not want income paid to the Foundation. In that case, the funds on deposit with the attorney would be placed in a non-interest bearing checking account from which no interest income would be generated. The client’s choice, consequently, was a negative one, to prevent the creation of income, in the absence of which the Foundation would benefit. Tax counsel argued unsuccessfully to IRS that because clients with funds on deposit could in no way “realize” income in the tax sense, there was no transfer or shift of income among taxpayers, except in the conceptual sense that “income” would inhere on unearning deposits for the benefit of depository commercial banks.

      .Many comments reflect a complete misunderstanding of the program’s operation, the role of attorneys in its implementation, or the federal tax implications and tax return requirements of the program. In light of our action today, there is no need to correct those misapprehensions here.

      . U.S.Const. amend. V.

      . The notion of generating interest on lawyers’ trust accounts in Florida began in 1971. In re Interest on Trust Accounts, 356 So.2d 799, 800 (Fla.1978).

      . Disagreement with the general wisdom of improving the administration of justice with the earnings on clients’ funds, which runs through many of the adverse filings, has already been considered and resolved in our 1978 decision. Id. at 805-07. We refuse the invitation to turn back.

      . 356 So.2d at 807 n.44.

      . Id. at 803-04 nn.28-30.

      .We have knowingly added the words “to be” as part of the temporal standard, rather than continue the former standard of time shortness in fact. The significance lies in allowing attorneys to test for shortness when the funds are received, and not require a hindsight reexamination based on duration in fact. We cannot require attorneys to be seers, and we see no value in allowing the program or any attorney to be jeopardized by an ex post facto audit.

      . 356 So.2d at 800-01.

      . Id. at 802 n.20.

      . Of course, a failure to comply with a client’s investment directives may give rise to a legal liability for damages.

      . See note 17, above.

      . The rejected proposal was reproduced as new paragraphs (vii) and (viii) to Integration Rule 11.02(4)(d) in In the Matter of Interest on Trust Accounts, 396 So.2d 719, 722 (Fla.1981).

      . This proposal was also reproduced in the Court’s opinion soliciting commentary. Id

      . Fla. Bar Integr.Rule, art. XI, Rule 11.-02(4)(d)(ii)-(iv).

      . Fla. Bar Integr.Rule, art. XI, Rule 11.-02(4)(d)(vii).

      . Those principles, as they appear in 356 So.2d at 807, are:
      1. Implementation will be effected through the Integration Rule rather than through by-laws alone;
      2. Interest earned on trust accounts will be remitted to the Foundation rather than the Bar, at least quarterly, for distribution among the agencies which will provide approved services;
      3. Clients’ trust funds may be invested in savings accounts of qualified financial institutions, but not in U. S. government or other securities;
      4. No filing of any sort with the Bar will be required other than a certificate of annual compliance with minimum trust account procedures, and no accounting and record-keeping requirements shall be imposed on plan participants other than those minimum requirements expressed in the new rules;
      5. In lieu of special name designations for attorney trust accounts, all accounts in which clients’ funds are deposited will, as they are now, simply be identified as “trust accounts.”
      To avoid unforeseeable problems of rigidity, we authorize the Foundation to approve periodic remittances less frequently than quarterly from any participating financial institution which cannot feasibly, in accordance with its standard banking and accounting practices, remit interest payments to the Foundation at least quarterly.

      . IRS approval is anticipated promptly upon our readoption of this program. The Bar and the Foundation can promptly communicate the details of approval, together with the Foundation’s tax identification number, to Florida associations representing appropriate financial institutions.

      . 356 So.2d at 811.

      . Our most recent exhortation on the subject appears in The Florida Bar v. Furman, 376 So.2d 378, 381-82 (Fla.1979).

      . For example, continued funding for the Legal Services Corporation is a matter of intense debate in Washington, D. C.

      . A special note of appreciation is in order for the efforts of Henry Zapruder, of the Washington law firm of Cohen and Uretz, whose skill and diligence as tax counsel to the Foundation has proved invaluable to the Foundation, to the Court, and to the citizens of Florida.


text:
    THE FLORIDA BAR. In re PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE XI, RULE 11.03(7) (Disqualification as Trier and Attorney for Respondents).
    No. 60326.
    Supreme Court of Florida.
    July 23, 1981.
    John F. Harkness, Jr., Executive Director, Tallahassee, Leonard H. Gilbert, President, Tampa, John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, and Bill Wagner, Chairman, Florida Bar Integration Rule and Bylaws Committee, Tampa, for petitioner.
   PER CURIAM.

The Board of Governors of The Florida Bar has petitioned this Court to adopt an amendment to Florida Bar Integration Rule, article XI, Rule 11.03(7). We have jurisdiction. Art. V, § 15, Fla. Const.

The proposed amendment to the rule requires existing Rule 11.03(7) to be struck in its entirety and a new section of the Florida Bar Integration Rule, article XI, be created as follows:

RULE 11.16

DISQUALIFICATION AS TRIER

AND ATTORNEY FOR RESPONDENT DUE TO CONFLICT

(1) No employee of The Florida Bar and no member of the Board of Governors of The Florida Bar shall represent a party other than The Florida Bar in any of the following specific matters: (1) designation appeals; (2) certification appeals; (3) appeals to or from the committee on professional ethics; (4) cases being investigated or litigated involving the unauthorized practice of law.
No former member of the Board of Governors nor former employee of The Florida Bar shall represent any party other than The Florida Bar in such matters if personally involved to any degree in the matter while a member of such Board of Governors or while an employee of The Florida Bar.
(2) An attorney shall not represent any party other than The Florida Bar in proceedings provided for in these disciplinary rules under any of the following circumstances:
(a) If the attorney is a member or former member of the Board of Governors, member or former member of any grievance committee, or employee or former employee of The Florida Bar, and while in such capacity participated personally in any way in the investigation or prosecution of the matter or any related matter, in which he seeks to be a representative or if he served in a supervisory capacity over such investigation or prosecution.
(b) A partner, associate, employer or employee or an attorney prohibited from representation by subparagraph (a) shall likewise be prohibited from representing any such party.
(c) A member of the Board of Governors shall not represent any party except The Florida Bar while serving as a member of the Board of Governors or for one year thereafter.
(d) An employee of The Florida Bar shall not represent any party except The Florida Bar while an employee of The Florida Bar, and shall not thereafter represent such party for a period of one year without the express consent of the Board of Governors.
(e) A member of a grievance committee shall not represent any party except The Florida Bar while a member of a grievance committee, and shall not thereafter represent such party for a period of one year without the express consent of the Board of Governors.
(f) A partner, associate, employer or employee of an attorney prohibited from representation by subsections (c), (d), and (e) of this rule shall not represent any party except The Florida Bar without the express consent of the Board of Governors.
(g)It shall be the duty of the Staff Counsel of The Florida Bar to determine, upon inquiry by any person, whether an attorney is disqualified by reason of the provisions of this rule and to notify the Board of Governors and the affected attorney of such disqualification in which event the disqualified attorney shall immediately withdraw from representation unless an appropriate waiver can be and is obtained from the Board of Governors.

This amendment to the Florida Bar Integration Rule is hereby adopted, effectively striking and replacing Rule 11.03(7). We order that the new rule, Florida Bar Integration Rule, article XI, Rule 11.16, shall become effective on the date on which this opinion is filed.

It is so ordered.

SUNDBERG, C. J„ ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ARTICLE XI, RULE 11.06(9)(a) (Contents of Referee Reports—Administrative Costs).
    No. 60516.
    Supreme Court of Florida.
    July 23, 1981.
    John F. Harkness, Jr., Executive Director, Tallahassee, Leonard H. Gilbert, President, Tampa, Samuel S. Smith, President-elect, Miami Beach, John A. Boggs, Asst. Staff Counsel, Tallahassee, for The Florida Bar and Bill Wagner, Chairman Florida Bar Integration Rule and Bylaws Committee, Tampa, for petitioner.
   PER CURIAM.

We have for consideration a petition of The Florida Bar to amend Florida Bar Integration Rule, article XI, rule 11.06(9)(a). The amendment to rule 11.06(9)(a) proposes an increase in administrative costs provided by the rule from fifty dollars ($50) at both the grievance committee level and referee level to one hundred fifty dollars ($150) at each level.

The proposed amendment to Florida Bar Integration Rule, article XI, rule 11.06(9)(a) is as follows:

(9) Referee’s report.
(a) Contents of report. Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts of all hearings, whichever is later, or within such extended period of time as may be allowed by the chief justice for good cause shown, the referee shall make a report and enter it as part of the record, but failure to enter the report in the time prescribed shall not deprive the referee of jurisdiction. The referee’s report shall include (1) a finding of fact as to each item of misconduct of which the respondent is charged, which findings of fact shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding, (2) recommendations as to whether or not the respondent should be found guilty of misconduct justifying disciplinary measures, (3) recommendations as to the disciplinary measures to be applied, (4) a statement of any past disciplinary measures as to the respondent which are on record with the executive director of The Florida Bar or which otherwise become know to the referee through evidence properly admitted by the referee during the course of the proceedings. After a finding of guilt all evidence of prior disciplinary measures may be offered by bar counsel subject to appropriate objection or explanation by respondent, and (5) a statement of costs of the proceedings and recommendations as to the manner in which costs should be taxed. The costs shall include court reporter’s fees, copy costs, witness fees and traveling expenses, and reasonable traveling and out-of-pocket expenses of the referee and bar counsel, if any. Costs shall also include a $50 $150 charge for administrative costs at the grievance committee level and a $50 $150 charge for administrative costs at the referee level. Costs taxed shall be payable to The Florida Bar.

We consider it appropriate that attorneys found guilty of misconduct justifying disciplinary action bear a higher contribution to the administrative costs of disciplinary actions. The petition of The Florida Bar is granted and Florida Bar Integration Rule, article XI, rule 11.06(9)(a) is amended, effective this date, as set forth above.

It is so ordered.

SUNDBERG, C. J., ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.