The Florida Bar v. Rapoport

Decision Date20 February 2003
Docket NumberNo. SC01-73.,SC01-73.
PartiesTHE FLORIDA BAR, Complainant, v. Albert A. RAPOPORT, Respondent.
CourtFlorida Supreme Court

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; R. Lee Bennett, Chair, Standing Committee on Unlicensed Practice of Law, Tallahassee, FL; Lori S. Holcomb, Unlicensed Practice of Law Director, The Florida Bar, Tallahassee, FL; and Janet Bradford Morgan, Bar Counsel, Fort Lauderdale, FL, for Complainant.

Ainslee R. Ferdie of the Law Offices of Ainslee R. Ferdie, Coral Gables, FL, for Respondent.


We have for review a referee's report finding as a matter of law that respondent, Albert A. Rapoport, engaged in the unlicensed practice of law. We have jurisdiction. See art. V, § 15, Fla. Const.

Rapoport is licensed to practice law in Washington, D.C. He is a member in good standing of the bars of the Supreme Court of the United States and the District of Columbia Court of Appeals. He is not a member of The Florida Bar.

The Bar filed its petition for an injunction in January 2001, claiming that Rapoport was engaged in the unlicensed practice of law (UPL) because he (1) represents parties in Florida in securities arbitration proceedings by entities such as the American Arbitration Association, the National Association of Securities Dealers, and the New York Stock Exchange; and (2) advertises his securities arbitration services in the Fort Lauderdale Sun-Sentinel.1 The Court issued an order to show cause on January 29, 2001. Rapoport responded to the order to show cause. Although it appeared to the Court at that time that Rapoport admitted the material allegations in The Florida Bar's petition, the Court referred the matter to a referee for determination of any questions of fact. See R. Regulating Fla. Bar 10-7.1(b)(6).

After discovery was propounded by both parties, including the Bar's request for admissions, the Bar filed a motion for summary judgment, alleging that there were no material facts in dispute.2 The referee granted summary judgment, making the following findings of undisputed facts: Rapoport (1) is not a licensed Florida attorney; (2) operates a law practice in Florida and represents persons in securities arbitration matters; (3) advises clients about the legal merits of their securities arbitration claims; (4) prepares, signs, and files securities arbitration claims for his clients; (5) represents his clients in securities arbitration proceedings; (6) offers advice and representation to stockbrokers defending claims in securities arbitration; and (7) has, in the past, advertised in the Sun-Sentinel his availability to represent persons in securities arbitration proceedings.

Based on these findings of fact, the referee concluded that (1) Rapoport is a nonlawyer in Florida and cannot operate a law practice or engage in the general practice of law in Florida; (2) Rapoport has engaged in the practice of law by giving legal advice and consultation to clients, by drafting, signing, and filing securities arbitration claims for clients, and by representing clients in securities arbitration proceedings; (3) no federal or state law authorizes Rapoport as a nonlawyer to provide legal services and advice in securities arbitration matters; (4) Florida maintains its substantial interest and authority to prohibit UPL to protect the public; (5) Rapoport has advertised his availability to represent parties in securities arbitration proceedings; and (6) Rapoport has engaged in UPL and is subject to injunction.

Rapoport does not contend that any of these material facts are in dispute. Rather, Rapoport claims that the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2000), (FAA) preempts state law3 and that Florida has no authority to forbid an attorney from acting in Florida for parties in federal securities matters.

In Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), the United States Supreme Court, although acknowledging Florida's substantial interest in regulating the practice of law within the state, held that Florida could not enjoin a nonlawyer registered to practice before the U.S. Patent Office from preparing and prosecuting patent applications in Florida because a federal statute and Patent Office regulations authorized the practice. Rapoport provides a long list of federal cases concerning securities arbitration that involve preemption of state law by the FAA.4 None of the cases, however, concerns the authorization of the practice of law in securities arbitration proceedings. Florida Bar re Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 696 So.2d 1178 (Fla.1997),

is directly on point. In that case, this Court held that it was unlicensed practice of law for nonlawyers in securities arbitration proceedings to give specific legal advice and perform the traditional tasks of the lawyer at arbitration proceedings. Rapoport admittedly has engaged in the traditional tasks of the lawyer—giving of legal advice, preparing and submitting claims, representing clients in proceedings, advertising his ability to represent clients—in securities arbitration proceedings in Florida. He is a nonlawyer in Florida under Rule Regulating the Florida Bar 10-2.1(c), which provides in pertinent part:

For purposes of this chapter, a nonlawyer or nonattorney is an individual who is not a member of The Florida Bar. This includes, but is not limited to, lawyers admitted in other jurisdictions, law students, law graduates, applicants to The Florida Bar, disbarred lawyers, and lawyers who have resigned from The Florida Bar.

As a nonlawyer, Rapoport is not authorized to practice law in Florida.

Although Rapoport does not point to any material issues that are in dispute, he claims that the referee erred in entering summary judgment without holding a hearing. He points to the language of Florida Rule of Civil Procedure 1.510(c), which provides that a motion for summary judgment "shall be served at least 20 days before the time fixed for hearing."

We previously have held that a referee in a UPL case has the authority to enter summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Florida Bar v. Miravalle, 761 So.2d 1049, 1051 (Fla.2000)

. Furthermore, the standard of review on summary judgment orders is de novo. See Florida Bar v. Cosnow, 797 So.2d 1255, 1258 (Fla.2001). Lastly, we are aware that rule 1.510(c) has been interpreted to require hearings on motions for summary judgments. See Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147, 148 (Fla. 4th DCA 1992).

We deem it unnecessary to reach the issue of whether rule 1.510(c) mandates a hearing before summary judgment may be entered in a civil proceeding if there has been adequate notice and an opportunity to be heard, and the party opposing the summary judgment has failed to show that there are any material issues in dispute. Unlike other proceedings, this Court has original jurisdiction over petitions against the unlicensed practice of law. See R. Regulating Fla. Bar 10-1.1. The Court does not automatically refer UPL petitions to referees. Referral to a referee is made only if the respondent raises issues of disputed fact after we have issued an order to show cause. See R. Regulating Fla. Bar 10-7.1(b)(6) ("The court may, upon its motion or upon motion of any party, enter a judgment on the pleadings or refer questions of fact to a referee for determination.").

In this case, as noted above, referral to a referee was made after a response was filed because it appeared that Rapoport may have been asserting some disputed issues of fact. However, in the proceedings before the referee, and in the multiple pleadings filed with this Court, including Rapoport's initial brief and reply brief, Rapoport has failed to demonstrate the existence of even a single disputed fact—much less a material one. Accordingly, Rapoport had no right to even have a referee hear The Florida Bar's petition against the unlicensed practice of law unless there were disputed issues of material fact. Once Rapoport filed his response to our order to show cause, this Court had the discretion to enter judgment on the pleadings or to refer questions of fact to a referee. See R. Regulating Fla. Bar 10-7.1(b)(6). Because there are no disputed issues of material fact raised by Rapoport, the referee's decision not to hold a hearing before entering summary judgment in this case was proper.5

Rapoport received both notice and an opportunity to be heard before this Court. There are no material issues of disputed fact, and based on Rapoport's admissions that he is engaged in representing parties in securities arbitration in this state we conclude that, as a matter of law, Rapoport is engaged in the unlicensed practice of law.

Rapoport also objects to the referee's recommended assessment of costs in the amount of $530.40. Rule Regulating the Florida Bar 10-7.1(d)(2) gives the referee discretion to recommend the assessment of costs, including the investigative costs and court reporter's fees requested in this action. Rapoport has demonstrated no abuse of discretion by the referee. Therefore, we approve the assessment of costs as recommended.

Accordingly, respondent, Albert A. Rapoport, is hereby enjoined from engaging in the practice of law in Florida, including specifically the representation of parties in securities arbitration proceedings in this state, until he is duly licensed to practice law in Florida. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida XXXXX-XXXX, for recovery of costs from Albert A. Rapoport, in the amount of $530.40, for which sum let execution issue.

It is so ordered.


SHAW, Senior Justice, dissents with an opinion, in which QUINCE, J., concurs.


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