Smith v. Bateman Graham, P.A.
| Decision Date | 19 April 1996 |
| Docket Number | No. 95-2431,95-2431 |
| Citation | 680 So.2d 497 |
| Parties | 21 Fla. L. Weekly D947 J. Layne SMITH, a/k/a J. Layne Smith, Esquire, and doing business as J. Layne Smith, P.A., Appellant, v. BATEMAN GRAHAM, P.A., a Professional Association, Appellee. |
| Court | Florida District Court of Appeals |
We grant the motion for rehearing, withdraw our previous opinion filed in this cause, and substitute the following opinion.
J. Layne Smith seeks to overturn an injunction entered ex parte prohibiting Smith from contacting clients of his former employer, the Tallahassee law firm of Bateman, Graham, P.A. (Bateman). Because we find that Bateman lacked standing to seek an injunction on the allegations in the complaint below, we conclude that the injunction was improperly entered and the lower court abused its discretion in denying Smith's motion to dissolve. As a result, we reverse. We also certify a question of great public importance.
Smith resigned from Bateman by letter dated July 5, 1995, and, two days later, he opened his own law practice. On July 7, 1995, Bateman filed a complaint for declaratory relief, for a temporary injunction and for a temporary injunction ex parte to prevent Smith from soliciting clients of Bateman. Bateman's complaint alleges that Smith mailed a letter to certain clients of Bateman in which Smith "actively and directly solicited specific cases on which he had performed legal work on behalf of Bateman Graham." The complaint then quotes Smith's letter in part, as follows:
As you know I am the only attorney at Bateman Graham, P.A. that has had any involvement in the Florida Atlantic Erectors/Florida Atlantic Construction case, and the Midas Mufflers/Ed Powers case. I believe that it is in (Florida Employers Safety and Association Self Insurance Fund's) best interest for me to continue representing it in these cases ...
In the complaint, Bateman cites Florida Bar Rule 4-7.4(b)(1)(B), Rules Regulating The Florida Bar, 1 as authority for the injunction against Smith. Bateman alleges further that it had no adequate remedy at law and that as a result of Smith's letters, it has suffered irreparable harm "to the goodwill, good name, and business stability" of the firm. The complaint adds, "Smith's conduct has already resulted in several client inquiries regarding the specific cases Smith has solicited and the preliminary inquiry regarding the lowering of hourly fees."
An ex parte hearing was held on July 7, at which time the trial court issued a temporary injunction enjoining Smith "from contacting or soliciting legal work from all active clients of [Bateman]." In granting the injunction, the trial court found that it:
[c]learly appears that an immediate and irreparable injury, loss or damage will result to [Bateman] before [Smith] can be heard in opposition, in that the relationship of [Bateman] with its several clients will be diminished or adversely affected due to the solicitation of those clients by [Smith].
Shortly after issuance of this ex parte injunction, Smith filed a motion to dissolve, arguing that alleged violations of ethics rules of The Florida Bar do not give rise to a private cause of action and, therefore, may not be a basis here for an injunction. Accordingly, Smith contended, Bateman lacked standing to enforce the alleged violation of the ethics rules. Smith also argued (i) that the lower court failed to comply with the notice requirements of Rule 1.610(a), Florida Rules of Civil Procedure, (ii) that Bateman failed to establish an immediate and irreparable injury, the absence of an inadequate remedy at law, substantial likelihood of prevailing on the merits, and a clear legal right which deserves protection through an injunctive relief; and (iii) that the temporary injunction impermissibly restricts Smith's right of free speech. After a hearing on the motion to dissolve, the lower court, albeit a different circuit judge, declined to dissolve the injunction. 2
Thereafter, Smith took the instant appeal. In this case, Smith essentially reargues the substance of the issues raised below in the motion to dissolve. We agree with Smith's argument that, even if we assume Smith's letter violated an ethics rule of The Florida Bar, Bateman does not have standing to seek an injunction based on the ethics rule violation. We believe that this conclusion is clear from the text of the ethics rules themselves. The preamble of Chapter 4, Rules Regulating The Florida Bar, provides:
Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self assessment, or for sanctioning the lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantial legal duty of lawyers or the extra-disciplinary consequences of violating such duty.
R.Regulating the Fla.Bar 4-Preamble (emphasis added). Thus, the ethics rules themselves preclude a private cause of action arising from a violation of the rules. See, Tew v. Arky, Freed, Stearns, et al., 655 F.Supp. 1571 (S.D.Fla.1987) (); see also, Tew v. Arky, Freed, Stearns, et al., 655 F.Supp. 1573 (S.D.Fla.1987).
Bateman also argues that two ethics opinions of The Florida Bar provide authority for the issuance of the injunction. 3 As with the...
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