CONSTITUTIONAL REPRESENTATION RESTRICTIONS
FOR STATE LEGISLATORS

APPLICATION OF THE CONSTITUTIONAL IN-OFFICE REPRESENTATION BAN TO STATE LEGISLATOR

To: The Honorable Tom Fabricio, Florida House of Representatives (Miami Lakes)

SUMMARY:

Guidance is provided regarding Article II, Section 8(e), Florida Constitution, for a State Legislator who seeks to represent a Bar applicant in a hearing before the Florida Board of Bar Examiners. Referenced are CEOs 21-9 and 19-12.

QUESTION:

Does Article II, Section 8(e), Florida Constitution, prohibit a sitting member of the Florida Legislature from representing a Bar applicant for compensation in a formal or investigative hearing before the Florida Board of Bar Examiners?

This question is answered in the negative.

In your ethics inquiry, you indicate that you currently serve as an elected member of the Florida Legislature in the Florida House of Representatives. You also indicate you are a licensed attorney admitted to practice law in the state of Florida. You note you are considering representing a Bar applicant for compensation in a hearing before the Florida Board of Bar Examiners (FBBE).¹ However, in light of the prohibition contained within Article II, Section 8(e), Florida Constitution, you ask whether your representation of the Bar applicant before the FBBE would be prohibited.

Turning to the language of the in-office representation ban, Article II, Section 8(e), Florida Constitution, states in relevant part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.

As such, in order to make a determination regarding your inquiry, we must address whether the FBBE is a "state agency," and, if so, whether it fits within the exemption for "judicial tribunals."

In the past, the Commission has followed the general principle that penal statutes must be strictly construed. See CEOs 21-9 and 19-12. Strict construction allows those covered by a statute to have clear notice of what it proscribes, and it also ensures the Commission does not usurp the role of the Legislature by impermissibly broadening a law or enlarging the terms used in the law. While this is a principle of statutory construction, and the prohibition at issue in this matter is found in the Constitution, this principle appears equally applicable here given that violations of Article II, Section 8, Florida Constitution, are subject to penalties.

The term "agency" for purposes of the in-office representation ban is defined in Section 112.312(2), Florida Statutes. This provision states:

"Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; any public school, community college, or state university; or any special district as defined in s. 189.012.

Given this definition, and even acknowledging that we must strictly interpret its meaning, it appears the FBBE is a state agency for purposes of Article II, Section 8(e), Florida Constitution. Article V, Section 15, Florida Constitution, states that "the supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted." To exercise this constitutional authority, the Florida Supreme Court created the FBBE to evaluate candidates for admission to the Bar. See In re Florida Bd. Of Bar Examiners, 353 So.2d 98, 100 (1977). According to Rule 1-13 of the Rules of the Supreme Court Relating to Admissions to the Bar, the FBBE is "an administrative agency of the Supreme Court of Florida created by the court to implement the rules relating to bar admission." Furthermore, in In re Florida Bd. Of Bar Examiners, 268 So.2d 371 (1972), the Florida Supreme Court held that the FBBE is a state agency under the judicial branch of the government, and its employees are state employees. As such, it appears that the FBBE is a government entity of the state of Florida housed within the judicial branch, and thereby falls under the definition of "agency" for purposes of the constitutional prohibition.

Because the FBBE is a state agency for purposes of Article II, Section 8(e), the question then becomes whether the FBBE is a "judicial tribunal," as Article II, Section 8(e) only prohibits state legislators representing clients before state agencies other than judicial tribunals.

The definition of the term "judicial tribunal" is not found in the Constitution. In fact, the term "judicial tribunal" only appears in the Constitution once, and it is in Article II, Section 8(e). That phrase is also not defined in Part III of Chapter 112, Florida Statutes. However, in Myers v. Hawkins, 362 So.2d 926 (1978), the Florida Supreme Court analyzed whether the Florida Public Service Commission was a "judicial tribunal" for purposes of Article II, Section 8(e), Florida Constitution.

In making its determination in Myers, the Florida Supreme Court created a "predominant characteristics test" to determine whether the agency had characteristics that were judicial in nature. Myers v. Hawkins, 362 So.2d 926 (1978). In applying this test, the Court looked to four factors that the average voter would understand to encompass governmental bodies that are judicial tribunals: (1) the agency presides over proceedings that are adversary; (2) the agency is comprised of an impartial group of decisionmakers; (3) the agency has the power to issue final orders that it has the power to enforce; and (4) an identifiable standard of appellate review can be used to test the agency's decisional processes to ensure due process. Id. at 931.²

After analyzing an agency's responsibilities in the context of these four factors, the Court also emphasized a distinction must be made between agencies that possess the requisite judicial characteristics for only "some aspect of their activities," and those possessing those characteristics for "all or virtually all" of their activities. Id. (cleaned up). In holding that the Public Service Commission was not a judicial tribunal for purposes of Article II, Section 8(e), the Myers Court remarked that while some of the Public Service Commission's functions fit into the four factors, "the statutory range of the [Public Service] Commission's responsibilities is so vast that the agency in fact exercises judicial-like powers in performing only a fraction (albeit a highly visible and significant fraction) of its duties." Id. at 932. The Court then went on to say that "the exercise of judicial-like powers is not inherent in all (or virtually all) of its statutory activities, and we are satisfied that it would not have been perceived by the public as being a judicial tribunal." Id. In so stating, the Court clarified only those agencies where all or virtually all of their responsibilities fit the four factors should be considered judicial tribunals for purposes of Article II, Section 8(e).

In applying the "predominant characteristics" test from Myers to the FBBE, it does not appear that the FBBE is a "judicial tribunal" within the contemplation of Article II, Section 8(e), Florida Constitution. A review of the rules governing the operations of FBBE reveals that the two main missions of the FBBE are (1) making character and fitness determinations concerning applicants to the Florida Bar, and (2) administering its namesake, the Florida Bar Examination. These two missions are equally important in evaluating candidates who apply for admission to the Florida Bar. Thus, the four factors articulated in Myers should be analyzed in the context of FBBE's operations as it undertakes these missions.

A review of the Rules of the Supreme Court Relating to Admissions to the Bar indicate that some of FBBE's operations pursuant to its character and fitness determinations certainly involve activities that satisfy the four factors articulated in Myers, such as the hearings contemplated by Rules 3-22 and 3-23. For instance, regarding the first two factors, it appears these hearings are adversary and occur before an impartial group of decisionmakers (board members of the FBBE). Additionally, regarding the third factor (the agency having the power to issue and enforce final orders), outside of one single subset of cases (cases involving a favorable recommendation for applicants who have previously been disbarred or resigned pending disciplinary proceedings), Rule 3-23.7 makes clear the FBBE's findings, conclusions, and recommendation following a formal hearing are final and enforceable if not appealed. Furthermore, pursuant to Rule 3-23.9, it appears that Counsel for the FBBE and an applicant may waive a formal hearing and enter into a proposed consent judgment. According to the rule, "if the consent judgment is approved by the full board, then the case will be resolved in accordance with the consent judgment without further proceedings." As such, it appears these consent judgments are also final and enforceable. Regarding the final factor, it appears that there is indeed an identifiable standard of appellate review that can be used to test FBBE's decisional processes to ensure due process. Rule 3-30 of the Rules of the Supreme Court Relating to Admissions to the Bar states that an applicant who is dissatisfied with the recommendation concerning his or her character and fitness may file a petition for the Board to reconsider the matter. Rule 3-40 also provides for Court review by the Florida Supreme Court. Given these rules, it appears when the FBBE acts pursuant to its function of making character and fitness determinations, the factor regarding appellate review is satisfied.

However, a review of the Rules also indicates the hearings conducted pursuant to FBBE's mission to make character and fitness determinations clearly do not constitute all, or virtually all, of the FBBE's operations. For instance, in applying the four factors to the FBBE's other main function, administering the Florida Bar Examination, the factors are not satisfied. The act of administering a licensing examination is certainly not an "adversarial proceeding" before an "impartial group of decisionmakers." Scoring an exam also does not involve the issuance of enforceable final orders, and there is no identifiable standard within the Rules regarding an applicant seeking to appeal his or her examination score.

That, essentially, is a full analysis and application of the Myers "predominant characteristics" test. But, if we stopped our analysis there, we would be left with a proper, mechanical application of that test, and yet a counterintuitive and impractical result. The result is counterintuitive because, as the Supreme Court wrote, the purpose of this ban on legislators representing clients before agencies is "to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before the agencies as compensated advocates for others." Myers at 930. Yet, there is no actual risk of that concern materializing here because the FBBE is entirely funded by fees assessed upon Bar applicants and registrants. See Rule 1-51.1 of the Rules of the Supreme Court Relating to Admissions to the Bar ("Income. Subject to the approval of the court, the Board may classify applicants and registrants, and fix the charges, fees, and expenses that will be paid by each."). The Legislature exercises no budgetary control over this particular state agency. See Rule 1-51 of the Rules of the Supreme Court Relating to Admissions to the Bar (stating that the Board annually prepares and submits a budget to the Florida Supreme Court for approval). Similarly, because FBBE is an agency of the Florida Supreme Court and a judicial branch agency, and due to the tenet of separation of powers, the Legislature has no material statutory control over the affairs of the FBBE. The Florida Bar, 398 So.2d 446, 447 (1981). The result is impractical because the mechanical application of the Myers "predominant characteristics" test here would operate to prevent you from accepting an employment opportunity to represent your client before the FBBE, yet that interference would not actually advance the purpose for which the prohibition was created.

In instances similar to this, we have applied Section 112.316, Florida Statutes, to negate the mechanical application of an ethical standard when there is no actual risk of harm from a breach of the public trust.³ Although Section 112.316 is only operable, by its terms, to negate the application of Part III of Chapter 112, Florida Statutes, it is evident that Article II, Section 8(e), Florida Constitution, is only enforceable by the mechanisms of Part III of Chapter 112. See Section 112.317(1), Florida Statutes, and Section 112.324(1), Florida Statutes. Where the use of Part III of Chapter 112 to enforce Article II, Section 8(e), Florida Constitution, would not serve to advance the public trust in government and would only needlessly prevent an employment opportunity, we apply Section 112.316 to negate that operation of Part III of Chapter 112.⁴

For these reasons, we conclude that, under the specific circumstances presented, Article II, Section 8(e), Florida Constitution, will not prohibit you from representing your client before the FBBE.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 18, 2025, and RENDERED this 19th day of December 2025.

____________________________________

Jon M. Philipson, Chair

^[1] The FBBE conducts both informal investigative hearings and formal hearings during its character and fitness determination process. See Rules 3-22 and 3-23.2, Rules of the Supreme Court Relating to Admissions to the Bar.