Gould v. Harkness
| Decision Date | 08 August 2006 |
| Docket Number | No. 04-23178-CIV.,04-23178-CIV. |
| Citation | 470 F.Supp.2d 1357 |
| Parties | Morris Ronald GOULD a/k/a Ronald Gould, Plaintiff, v. John F. HARKNESS, Jr. Executive Director, Florida Bar Jacquelyn Plasner Needleman Florida Bar. Counsel, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
I. Factual. Background
Plaintiff Gould, an attorney licensed in New York but not in Florida, filed suit against Defendant Florida Bar based on his "genuine and credible fear" that he will be charged with unauthorized practice of law (UPL) if he advertises his legal services in Florida. Only two counts remain in Plaintiff's complaint following the motion to dismiss stage: Counts XI and XIV. Both Counts XI and XIV allege violations of the First Amendment right to freedom of speech stemming from the Florida Bar's potential restrictions on Plaintiffs proposed advertisements for his legal services.1 In Count XI, Plaintiff alleges that he will be charged with UPL if his advertisement states "New York Legal Matters Only," but includes an address for a Florida-based law office.2 In Count XIV, Plaintiff alleges he will be charged with UPL if his advertisement states "Federal Administrative Practice" and includes an address for a Florida-based law office.
Both Plaintiff and Defendant have filed Motions for Summary Judgment and concede that this case can be disposed of at the summary judgment stage. See Def. Mot. Sum. J. at 2; Plaint. Resp. at 1. After reviewing both Motions for Summary Judgment, the Court must reiterate the fact that the only counts remaining in Plaintiffs complaint concern violations of the First Amendment. Therefore, the Court will only discuss and rule on the First Amendment issues. Defendant's Motion for Summary Judgment focuses on First Amendment law; however, Plaintiffs Motion presents a variety of arguments and claims, which are not under the consideration of this Court. Plaintiffs Motion for Summary Judgment fails to address the First Amendment claims as they are alleged in the complaint, and instead alleges claims based on the Fifth Amendment and Fourteenth Amendment. The Court will not consider the merits of these Fifth and Fourteenth Amendment claims and Plaintiffs Motion for Summary Judgment is DENIED.
II. Standard of Law—Summary Judgment
Summary judgment is authorized when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A court's focus in reviewing a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The burden then shifts to the party opposing the motion, who must set forth specific facts and establish the essential elements of his case on which he will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. Analysis
The Florida Supreme Court has held that solicitation and advertising within Florida by a lawyer admitted in another jurisdiction constitutes an unlicensed practice of law. See Chandris S.A. v. Yanakakis, 668 So.2d 180, 184 (Fla.1995). Plaintiff alleges that this pronouncement prohibits him from advertising his New York legal practice and his administrative law practice within the state of Florida. Plaintiff further alleges that the prohibition restricts Plaintiffs freedom of commercial speech in violation of the First Amendment. In moving for summary judgment, Defendants argue that under the Central Hudson test for government regulations on commercial speech, the Florida Bar's restrictions do not violate the First Amendment and Plaintiffs complaint should be dismissed.
Commercial speech is defined as an "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The Supreme Court has held that lawyer advertising is considered commercial speech. See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). Commercial speech is protected speech under the First Amendment; however, the protection is not absolute. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) ().
In Central Hudson, the Supreme Court outlined an intermediate-scrutiny test for determining whether a government restriction on commercial speech violates the First Amendment. First, a court must determine if the commercial speech in question concerns unlawful activity or is misleading. Central Hudson, 447 U.S. at 563, 100 S.Ct. 2343. If so, then the government may freely regulate that speech. Id. If not, the speech may still be regulated if (1) the government asserts a substantial interest in support of its regulation, (2) the government demonstrates that "the restriction on commercial speech directly and materially advances that interest," and (3) the regulation is narrowly tailored. Id. at 564-565, 100 S.Ct. 2343.
As to the first inquiry, Defendant argues that Plaintiffs proposed advertisements both concern unlawful activity and are misleading. The rules and laws regulating attorneys and UPL in Florida are promulgated by the Florida Supreme Court. See Fla. Const. art. V, § 15; see also Amendments to Rules Regulating the Florida Bar-Advertising Rules, 762 So.2d 392 (Fla.1999). Rules 4-5.5 and 10-2.1 are most relevant to the lawfulness of Plaintiffs proposed advertisements. Rule 4-5.5(b) provides:
A lawyer who is not admitted to practice in Florida shall not:
(1) except as authorized by other law, establish an office or other regular presence in Florida, for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida.
Further, Rule 10-2.1 states that "[i]t shall constitute the unlicensed practice of law for a lawyer admitted in a state other than Florida to advertise to provide legal services in Florida for which the lawyer is not authorized to provide."3 See also Amendments, 762 So.2d at 394.
Based on these rules, as to Count XI, Defendant argues that Gould is not lawfully authorized to provide legal advice or advertise services to provide legal advice regarding matters of New York law from his office in Florida and that the [proposed] advertisement is misleading as it portrays the conduct as lawful. See Def. Mot. Sum. J. at 11. The Court finds this argument persuasive as it is consistent with the rulings of the Florida Supreme Court. For instance, in Florida. Bar v. Kaiser, 397 So.2d 1132, 1133 (Fla.1981), the defendant, who was a member of the New York bar but not of the Florida bar, advertised his availability as an attorney in Miami telephone books, newspapers, and television, with the implication being, that he was authorized to practice in Florida. The Kaiser Court held that because the advertisements had no, distinguishing limitations as to the defendant's membership in the New York bar or his limited area of practice (immigration), the defendant had knowingly created the impression that he was authorized to practice in Florida on his own, and therefore had committed UPL. See id.
Similarly, in Florida Bar v. Tate, 552 So.2d 1106 (Fla.1989), the Court held that the defendant, a member of the Pennsylvania bar but not Florida, had committed UPL by handing out business cards which did not otherwise represent him to a be foreign attorney. The Tate Court ordered that the defendant was enjoined from "utilizing any cards, letterhead, or other written material identifying him as attorney at law without otherwise specifying that he was only admitted to practice in the State of Pennsylvania." See id. In this case, Plaintiff's proposed advertisements and letterhead amount to UPL in the same way as the advertisements in Kaiser and the letterhead in Tate. Plaintiff seeks to advertise his availability as an attorney in Florida even though he is only licensed in New York. Although he seems to limit his practice to New York legal matters, he does not state that he is not a member of the Florida Bar or that he is not authorized to practice in Florida. In other words, like the defendant in Tate, Plaintiff fails to state that he is only licensed to practice in New York. By stating "Free Phone Consultation" and listing a Miami phone number along with a Miami address for his office, Plaintiff creates the impression that he is authorized to practice law in Florida.
Furthermore, it is problematic and UPL for Plaintiff to attempt to practice from a Florida office even though Plaintiffs advertisement specifies "New York Legal Matters Only" and "M. Ronald Gould Licensed New York" (emphasis added). See Florida Bar v. Savitt, 363 So.2d 559, 560 (Fla.1978). In Savitt, the Court held that it was UPL for a New York firm to operate a Florida office unless the partner responsible for the office's operations was a member of the Florida bar. See id. In looking at the Savitt holding along with Rule 4-5.5(b), which states, "a lawyer who is not admitted to practice in Florida shall not ... except as authorized by other law, establish an office or other regular presence in Florida for the practice of...
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...when it sent the solicitation letters, the letters most likely constituted the unlicensed practice of law. See Gould v. Harkness, 470 F.Supp.2d 1357, 1359 (S.D.Fla.2006) (“The Florida Supreme Court has held that solicitation and advertising within Florida by a lawyer admitted in another jur......
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...and that concern is based upon the need to protect the interests of potential clients in that jurisdiction. In Gould v. Harkness, 470 F.Supp.2d 1357 (S.D. Fla. 2006), a New York attorney sought to establish an office and advertise his presence in Florida, but advertise “New York Legal Matte......