
    CENTRAL FLORIDA LEGAL SERVICES, INC., a non-profit Florida Corporation, N. Albert Bacharach, Jr., and Eddie Lee Lester, Petitioners, v. Robert R. PERRY, and E. L. Eastmoore, as Judges of the Circuit Court of Putnam County, Seventh Judicial Circuit, State of Florida, Respondents.
    No. 81-679.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    
      Judith Benninger Brown, Palatka, and Judith E. Koons, Cocoa, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioners, Central Florida Legal Services, Inc., N. Albert Bacharach, Jr., and Eddie Lee Lester, seek a writ of mandamus or, in the alternative, a writ of certiorari to require Robert R. Perry and E. L. East-moore, as judges of the Circuit Court of Putnam County, to vacate an order appointing Bacharach, an attorney employed by Central Florida Legal Services, to serve as counsel for Lester in a criminal proceeding.

We shall treat the petition as one for certiorari. In Colonial Penn Ins. Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980), we enunciated the three prerequisites to common law certiorari:

(1) the order sought to be reviewed does not conform to the essential requirements of law;
(2) material injury will result from the order; and
(3) remedy by appeal is inadequate.

In this instance, we find these requirements have been met and grant certiorari.

On April 30, 1981, the Public Defender certified a conflict of interest between Lester and another defendant and requested substitution of court appointed counsel. On May 13, 1981, Judge Eastmoore appointed Bacharach to represent Lester. On May 20, 1981, Bacharach filed an ex parte motion to set aside his appointment alleging that federal law prohibited the appointment of legal services attorneys to criminal cases and that he was not competent to represent clients in criminal matters. In the absence of Judge Eastmoore, Judge Perry denied the motion. Petitioners then filed their petition for writ of certiorari.

The Legal Services Corporation Act was adopted by Congress to provide equal access to the system -of justice for individuals who seek redress of grievances and who would otherwise be unable to afford adequate legal counsel. See 42 U.S.C. § 2996(1) and (2). The purpose was to provide financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance. 42 U.S.C. § 2996b(a). 42 U.S.C. § 2996f(b) specifically provides that no funds made available by the Corporation may be used to provide legal assistance with respect to any criminal proceeding, except to provide assistance to a person charged with a misdemeanor or lesser offense or its equivalent in an Indian tribal court.

Regulations enacted pursuant to 42 U.S.C. § 2996g(e), which govern the activities of legal service organizations funded under the act also limit their activities to civil matters. See 45 C.F.R. § 1613.1 and § 1613.3. The only exception is found in 45 C.F.R. § 1613.1 which provides as follows:

Legal assistance may be provided with respect to a criminal proceeding:
(a) Pursuant to a court appointment made under a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction, if authorized by the recipient after a determination that it is consistent with the recipient’s primary responsibility to provide legal assistance to eligible clients in civil matters; or
(b) When professional responsibility requires representation in a criminal proceeding arising out of a transaction with respect to which the client is being, or has been, represented by recipient.

The present case involves the situation described in § 1613.1(a). Here, Bacharach was appointed to represent Lester, an indigent criminal defendant. Even assuming arguendo that the court appointment was made pursuant to statute, court rule or practice of equal applicability to all attorneys in the jurisdiction, legal assistance may be provided only after the recipient, here Central Florida Legal Services, has determined that such representation is consistent with the recipient’s primary responsibility to provide legal assistance to clients in civil matters. Central Florida Legal Services has determined that representation of indigent criminal defendants is inconsistent with its primary responsibility to provide legal assistance in civil matters. In view of this determination, the order of the court below appointing Bacharach counsel for Lester in a criminal proceeding directly contravenes federal law and regulations concerning legal services.

The respondents, however, claim that the prohibition against representation of indigent defendants in criminal matters unless authorized by the director conflicts with the Integration Rule of the Florida Bar and the Code of Professional Responsibility. Respondents argue that the courts of the State of Florida have exclusive jurisdiction over the admission of attorneys and the regulation of the practice of law in state courts and hence, any federal law prohibiting legal services attorneys from representing criminal defendants is a violation of the Tenth Amendment.

In Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), the Florida Bar instituted proceedings to enjoin a nonlawyer registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida. Notwithstanding that such activity constituted the practice of law in Florida, the Supreme Court held that Florida could not enjoin the nonlawyer in view of the federal statute and patent office regulations authorizing practice before the patent office by nonlawyers.

In so holding, the court recognized that Florida had a substantial, though not exclusive, interest in regulating the practice of law within the state and that, in the absence of federal legislation, it could validly prohibit nonlawyers from engaging in this form of patent practice. However, “the law of the state, though enacted in the exercise of powers not controverted, must yield,” when incompatible with federal legislation. 83 S.Ct. at 1325, quoting from Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed. 23 (1824).

The court also addressed the state’s argument that the patent regulations violated the Tenth Amendment. The court noted the source of Congress’s power to grant patent rights and to promulgate regulations thereunder. It concluded that as Congress had acted within the scope of the powers delegated to it by the Constitution, it had not exceeded the limits of the Tenth Amendment despite the concurrent effects of the legislation upon a matter otherwise within the control of the states. The court further noted that:

The authority of Congress is no less when the state power which it displaces would otherwise have been exercised by the state judiciary rather than by the state legislature, (emphasis added)

While respondents have claimed that the Legal Services Corporation Act and the regulations promulgated thereunder violate the Tenth Amendment, they have failed to allege that Congress lacks or has exceeded its authority in establishing a legal services program. The establishment of a legal services program appears to be a valid exercise of the power of the federal government to provide for the general welfare pursuant to Article I, section 8, of the United States Constitution. As the Supreme Court noted in Sperry, if Congress acts within the scope of the' powers delegated to the United States by the Constitution, it has not exceeded the limits of the Tenth Amendment despite the effects of its legislation upon a matter otherwise within the control of the state. 83 S.Ct. at 1335.

We are aware that Sperry involved the practice of law only before federal agencies and that the instant case involves the practice of law in the state courts. However, the principle recognized in Sperry, that the state maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of federal objectives, is equally applicable here. The lower court’s order of appointment interferes with the federal objective of providing legal assistance in civil matters to those who could not otherwise afford such services.

However, we also recognize that the Florida Bar was created by and exists under the authority of the Florida Supreme Court and that the supreme court has the inherent power and duty to prescribe the standards of conduct for lawyers. Fla.Bar Integr. Rule, Preamble (a) and (d). In furtherance of these principles, the supreme court has promulgated the Code of Professional Responsibility. Canon 2 of the Code specifically provides that “a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.”

In addition, several Ethical Considerations address the attorney’s duty to make legal services available to those who cannot afford such services. Ethical Consideration 2-25 states that the basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer and that every lawyer, regardless of professional prominence or workload, should find time to participate in serving the disadvantaged. Ethical Consideration 2-26 provides that in furtherance of the objective to make legal services fully available, a lawyer should not lightly decline proffered employment. Ethical Consideration 2-29 states that when a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, he should not seek to be excused from undertaking the representation except for compelling reasons.

The lack of cases challenging the court’s assignment of cases to individual attorneys indicates that members of the Florida Bar have shouldered the obligation to provide legal services to those who cannot pay. As we have construed them, the federal regulations involved here relieve Bacharach, a member in good standing of the Florida Bar, of his duty to provide legal services and to accept court-appointed representation. In view of the conflicting interests of the state and federal governments, we certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(B)(i) and (ii):

WHETHER A FLORIDA COURT CAN APPOINT AN ATTORNEY EMPLOYED BY A LEGAL SERVICES CORPORATION ESTABLISHED PURSUANT TO THE LEGAL SERVICES CORPORATION ACT AS COUNSEL FOR AN INDIGENT CRIMINAL DEFENDANT WHERE THE AUTHORIZATION REQUIRED BY 45 C.F.R. § 1613.1 HAS NOT BEEN SECURED?

SHARP, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge,

concurring specially:

I concur with the result reached by the majority, but I disagree with the reasoning by which the result was reached.

Petitioner, a licensed Florida attorney, employed by Central Florida Legal Services, Inc., and practicing in Putman County, was appointed by the court to represent an indigent defendant charged with the crimes of burglary and grand theft. Petitioner’s motion asking to be relieved of the assignment was based on two grounds: (1) that federal law prohibited the appointment of Legal Services’ attorneys, and (2) that he was not competent to represent defendants in criminal matters. The motion was apparently denied without a hearing to determine if the allegation of incompetency in criminal matters was true.

While I can agree that an indigent defendant charged with a crime has the right to the appointment of an attorney who can provide him with reasonably effective representation, it is quite another matter to say that an attorney appointed by the court to represent such an indigent defendant has a right to decline the appointment or may seek appellate relief to prevent the appointment merely because of policies established by that attorney’s employer.

The federal regulations do rtot prohibit the appointment, nor do I believe that Congress ever intended to regulate the practice of attorneys in the State courts. The ease of Sperry v. State of Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), does not support any such notion. Sperry merely says that congress has the right to permit non-attorneys to practice before federal agencies. At the same time, the Supreme Court said that:

“Moreover, since patent, practitioners are authorized to practice only before the Patent Office, the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives.”

83 S.Ct. at 1335. The limited extent necessary in that ease was the ability of the patent attorney to maintain his office and perform his services in Florida, although not a member of The Florida Bar. The Supreme Court never said that this non-attorney could practice law in the Florida courts or that Congress had the right to control the practice of law in the Florida courts.

Attorneys employed by Legal Services corporations practice before the courts of this state as do other practitioners. They are hired to appear in court. They subscribe to the same oath of admission, belong to the same Bar, and are subject to the same Code of Professional Responsibility as are other lawyers. Their obligations and responsibilities, together with their privileges, are those of other members of the practicing bar. There is no allegation here, nor any attempt to show that Bacharach was singled out because of any improper purpose or motive, but on the contrary, the record shows that he had publicly announced a willingness to participate in the representation of indigent defendants charged with crime in an appointment process applicable to other lawyers. I would deny relief on that ground.

The allegation of inexperience and incompetence in the area of criminal law raises a different issue. While some members of the public (and some lawyers) may believe that the license to practice law qualifies a lawyer to handle any type of case, as a practical matter we know that is simply not so. We gain knowledge not only by what has been taught in school, but (probably to a much greater degree) by practical experience. Even the most experienced lawyer in a given area of the law is not necessarily equipped to handle a matter in other areas of the law in which he has no experience at all. How, then, can a lawyer who has not practiced very long and who states under oath that he has had absolutely no experience at all in handling criminal matters and that he cannot render effective assistance, be expected to learn enough criminal procedure and substantive criminal law in the short time between appointment and trial to be able to provide “reasonably effective assistance” to the defendant.

Trial courts, and appellate courts are daily faced with complaints of those convicted of crimes that they did not have effective assistance of counsel. The current test in cases seeking collateral relief on that ground is that expressed by Meeks v. State, 382 So.2d 673 (Fla.1980):

The appropriate test to be applied in determining whether defendant was afforded effective assistance of counsel is . . . whether counsel was reasonably likely to render and did render reasonably effective counsel based on the totality of the circumstances. (Emphasis supplied).

Id. at 675. When the court appoints a lawyer who asserts under oath that he cannot render effective assistance because of inexperience and incompetence in the area of criminal law, it seems to me that the court has boosted the defendant over the first rung of the ladder; i. e., the defendant has a built-in argument that his appointed attorney was not “reasonably likely to render” reasonably effective counsel. It also seems to me that the road is thus paved for the successful assertion that the attorney did not render the proper quality of representation.

The assertion by the State that a good lawyer can learn the rules and the law between appointment and the time of trial may be correct in many instances. However, I doubt that any person asserting that position would want his life or liberty to depend on counsel who says under oath that his training is insufficient and that he cannot effectively represent the defendant. I agree with the majority that the lawyers of Florida have admirably shouldered their responsibility to provide legal assistance to the poor. There are many qualified attorneys ready to assume the obligations and responsibilities cast upon them by the need to provide counsel to indigents, despite the often unrealistic compensation provided by law, so it hardly helps the system to appoint one admittedly unqualified. I would require the trial court to make a factual determination of the attorney’s qualifications, but would not grant relief on the other ground asserted. 
      
      . The order appointing Bacharach also contravenes federal law and regulations concerning the outside practice of law. The general policy of the Legal Services Corporation is that no attorney shall engage in any outside practice of law if the director of the recipient has determined that such practice is inconsistent with the attorney’s full time responsibilities. 42 U.S.C. § 2996f(a)(4); 45 C.F.R. § 1604.3. As the director of Central Florida Legal Services has indicated that representation of indigent criminal defendants is inconsistent with the attorney’s full-time responsibility, the fact that Bacharach will be later compensated for his services pursuant to section 27.53, Florida Statutes (1979), does not validate the prohibited act.
     
      
      . “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
     
      
      . In In Interest of D. B., 385 So.2d 83 (Fla.1980), the supreme court recognized the historical concept that one who is allowed to practice law accepts a professional obligation to defend the poor. See also United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).
     
      
      . In pertinent part, his sworn motion said:
      As an attorney I have had no experience with either the substantive or procedural aspects of criminal law, and I am therefore not presently competent to represent the Defendant. As a third (3rd) year law student I interned with a Legal Services’ program which did not provide legal assistance in criminal matters. Subsequent to my graduation from law school in January of 1976 I have been continuously employed by Legal Services’ programs, none of which have provided criminal representation. To date I have never represented anyone in a criminal matter nor have I assisted any other attorney in their preparation or trial of a criminal matter.
     