Out of State Attorneys In Florida Update

FLORIDA BAR & RAPOPORT:The Florida Supreme Court’s decision regarding an attorney not licensed in Florida, but practicing in Florida securities arbitrations, has caused a stir among both Claimants’ and Respondents’ counsel; an interim policy now seems in the works.

In the case of The Florida Bar v. Rapoport, No. SC01-73 (Fla., 2/20/03) (SAA 03-08), Florida’s top court found that a lawyer licensed only out-of-state, but advertising, operating a practice, and representing parties in securities arbitrations within Florida, was engaged in the unlicensed practice of law (UPL). Burton W. Wiand, Fowler White Boggs Banker, a Tampa-based attorney who has been actively dealing with The Florida Bar and researching this issue since the Rapoport decision, has issued Memoranda to clients and friends, as this issue has developed, discussing Rapoport’s potential implications for out-of-state counsel handling Florida arbitrations and for in-house counsel representing their companies in Florida arbitrations.

None of the potential solutions (pro hac vice admission; associating with Florida counsel; taking cases in-house) are fully satisfactory remedies, as each has limitations or barriers, given past Florida Bar rulings. However, in a memorandum dated March 4, 2003, Mr. Wiand reports that “the [Florida] Bar, as of today, adopted a policy to interpret the Rapoport decision as being a case that is fact-specific and the Bar’s policy will be to enforce ruling of the case in that way.”

Mr. Rapoport is listed as a Boca Raton resident in 20+ Awards on SCAN (SAC-CCH Awards Network) Plus and he placed ads, according to the decision, in a Florida newspaper advertising for clients with securities arbitration claims. Lori Holcomb, a representative of the Florida Bar, Unlicensed Practice of Law Section (850-561-5840), advises that the Florida Bar has had under continuing consideration certain matters relating to multi-jurisdictional practice issues and, in this regard, has been tracking the ABA’s efforts. Thus, the Bar’s focus is not exclusively on arbitration.

Asked whether the fact-specific approach described in Mr. Wiand’s memo means that the Bar will only interpret the case to bar out-of-state licensed lawyers who reside in Florida from appearing in Florida-based arbitrations, Ms. Holcomb told SAC that that was, in her view, too restrictive an interpretation. Asked whether the Florida Bar would only take action on a complaint basis, she cautioned that the Bar itself can initiate a complaint and has done so, for instance, where a newspaper ad by an out-of-state attorney appears to present misleading statements or potential public harm. In its major aspects, Ms. Holcomb affirmed the Wiand memo as accurate.

Mr. Wiand’s memo concludes, in any case, that the Bar’s current position “would appear for the time being to be a reprieve for out-of-state defense lawyers handling cases in the State of Florida.” (SAC ed: We do not expect to see this “position” in an official writing, so Mr. Wiand’s summaries are helpful; it was very good of him to share this important information. Of course, any questions on specific situations should be addressed to Ms. Holcomb at the Florida Bar and readers who order Mr. Wiand’s memos from SAC are cautioned that they do not purport to offer legal advice.) (SAC Ref. No. 03-09-01)


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Copyright 2003 Securities Arbitration Commentator, Inc. P.O. Box 112, Maplewood, NJ 07040; t: 973-761-5880 f: 973-761-1504. Materials denoted with a SAC Reference No. (e.g. SAC Ref. No. 99-01-001) are on hand at SAC and may be obtained by calling the Securities Arbitration Commentator, or by email to help@sacarbitration.com. The Securities Arbitration Commentator is the leading publication for securities arbitration news and information, and maintains the most complete database of arbitration awards availalble anywhere. For more information regarding their services, visit their website at www.sacarbitration.com

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