Florida Justices Evade Bar With Go-It-Alone Rulemaking Pattern

The rules for practicing law in Florida are being unilaterally altered by the Florida Supreme Court.

The justices in Florida have adopted rule changes, bypassing insights from the state’s legal experts until after the justices make decisions, in at least 33 opinions since 2019, according to Bloomberg Law analysis. The Florida high court has taken this action twice as frequently since 2019 as it did in the prior four years, when 15 independent rule changes were issued before soliciting public feedback.

During the last four years the court has proactively tweaked rules on mundane subjects—such as expanding a time limit for some people to pass the bar exam—as well as on hot-button issues like ending judges’ diversity, equity, and inclusion ethics training or adopting protections for company officials exposed to burdensome discovery requests during litigation.

Critics say the court’s frequent reliance on this decide-first-ask-questions-later practice deprives Florida of better rules and creates uncertainty for a legal community of more than 100,000 practitioners.

The shift is a break from norms of prior decades, where the high court would more often defer to the hundreds of volunteer lawyers sitting on committees considering amendments to Florida’s sprawling rules governing the legal system. Unless an issue is fast-tracked for quick decision-making, vigorously-debating rule committees generally meet a few times annually, and proposals to the high court can take a year or more. If the court goes moves of its own volition, changes can take effect immediately and the court accepts comments afterwards.

Having subject-matter experts hash out the pros and cons and dissecting language can prevent the court from making mistakes that can create uncertainty for lawyers, said Paul R. Regensdorf, a member of the state’s Civil Procedure Rules Committee.

Instead, the court is “cutting the bar people out of it and they’re doing what they want,” said Luke Newman, president of the Florida Association of Criminal Defense Lawyers.

The Florida Bar, which is governed and controlled by the court, declined to comment on this trend. Whether the court shifted to overhaul policies in ways the bar committees don’t support, or to expedite the state’s process, Newman said the intention is clear: “The court is trying to get around the bar.”

Speed Breeds Uncertainty

Experts who spoke with Bloomberg Law said the recent rulemaking trend is unlike periods before 2019. It’s yet another way appointees by Gov. Ron DeSantis (R) have changed the way the high court operates in Florida.

The Florida Bar focused on rule-making speed for the last decade, said Michelle Suskauer, bar president from 2018 to 2019, because “the rulemaking process is arduous and often so slow that issues that need addressing sometimes become stale at that point.”

It’s an issue the bar has sought to address. During her tenure she gathered the Florida Supreme Court Chief Justice and heads of all of the bar rulemaking committees together in an attempt to find a way to expedite the rulemaking process.

“Folks on these committees are providing an immense benefit to the bar. They’re specifically chosen by the bar president elect to be as even-handed as possible in terms of balance of practitioners, judiciary, and academics,” she said. “They’re experts on these issues, and their input is invaluable.”

When the justices have acted without input, mistakes have been made.

In one instance, the justices adopted a rule change regarding motions for a rehearing, then had to issue two subsequent opinions tweaking it, with about 14 months between the court’s first and last opinions.

“The Supreme Court can do whatever it wants—it truly is the all-powerful head of the legal profession,” Regensdorf said. “But they’re missing the opportunity to make rules better by ignoring the resources they have.”

‘Follow Our Own Rules’

The Florida Supreme Court declined to comment, but dissenters from within the court have urged colleagues to change course.

The week before last, Justice Jorge Labarga asked his fellow justices to end the “retroactive comment period” in “all but the most urgent instances” so the court doesn’t produce so many rules then ask for comments afterward.

Other critics include Eleventh Circuit Court of Appeals Judge Robert J. Luck, who penned a dissent to the court’s groundbreaking decision on its own motion overhauling Florida’s standards for expert witness testimony during his tenure on the state’s high court.

In 2019, Luck said the court was making changes “without following our procedure for adopting rules.” Though he approved of the change during his final months as a Florida justice before Donald Trump appointed him to the federal court, he said, “we must follow our own rules if we expect anyone else to.”

Veterans of rulemaking committees say hundreds of lawyers are devoting thousands of non-billable hours to making better rules—sidelining these groups might raise questions about whether that’s a good use of time.

When “rule changes start happening without the input of the bar it creates a concern among lawyers that their involvement is not as important,” said Brian Tannebaum, who has served on Florida rules committees on and off for decades. “My concern is that those who would volunteer to be on these committees start to say, ‘Why?’”

Some lawyers worry that if the bar pushes back too strongly on the court the justices could lean into their ultimate authority and bypass the bar more often.

“The concern some people have is that if you do push back, the court may take away all rulemaking authority from the bar and put it in the hands of another court-appointed committee,” Regensdorf said. “I don’t think they’re specifically doing this to stick their fingers in the bar’s eye, but they are bypassing the bar’s talents, and they are losing the bar’s experience on these things.”