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10-12-23 State of Florida Attorney General v Fishman & Shapiro, LLP (4DI0-4526) in the
Florida Court of Appeals Fourth District, Petition and Response on Writ of Certiorari

Office of the Florida Attorney General Active Public Consumer-Related Investigation -3

August 10, 2010, Office of the Florida Attorney General Press Release: Florida Law Firms Subpoenaed
Over Foreclosure Filing Practices -4

October 11, 2010, Office of the Florida Attorney General Press Release: Attorney General files Motion for
Rehearing in Judge's Ruling in Shapiro & Fishman Investigation -5

November 3, 2010 Florida Attorney General’s Petition for a Writ of Certiorari - 6

December 23, 2010 Fishman & Shapiro’s Response on Petition for Writ of Certiorari - 29

___

Fishman & Shapiro LLP, is a law firm, which represents mortgage servicing companies and provides legal
services to its clients in foreclosure matters throughout the State of Florida.

The Florida Attorney General initiated investigation of the firms “for the firm's alleged involvement in
presenting fabricated documents to the courts in foreclosure actions to obtain final judgments against
homeowners.”

Pursuant to the Florida Constitution the Florida Supreme Court holds the power to regulate admission to the
practice of law.

Judge Jack Schramm Cox, Florida Circuit Judge, Martin County, granted Motion by Fishman & Shapiro to
quash subpoena by the Florida Attorney General, on the grounds that pursuant to the Florida Constitution the
Florida Supreme Court holds the power to regulate admission to the practice of law.

In its November 3, 2010 Petition, the office of Florida Attorney General said:
On August 6,2010, the OAG issued an investigative subpoena to the
respondent, the law firm Shapiro & Fishman LLP ("S&F"). Exhibit 2. The
subpoena was issued pursuant to the OAG's broad statutory authority to investigate
and bring legal actions for unfair and deceptive trade practices under chapter 501,
part II, Florida Statutes (known as the "Florida Deceptive and Unfair Trade
Practices Act." (the "Act,,).l
Under the Act, the Legislature has declared that "[u]nfair methods of
competition, unconscionable acts or practices, and unfair or deceptive practices in
the conduct of any trade or commerce are hereby declared unlawful,,2 and
designated the OAG as the "enforcing authority" if the violation occurs in more
than one judicial circuit. 3 As indicated, the enforcement authority extends to the
conducting of "any" type of trade or commerce without limitation.

In its December 23, 2010 response, Fishman & Shapiro, LLP said:
On or about August 6, 2010, the Office of the Attorney General
z Page 2/2 December 30, 2010

("OAG") issued an investigative subpoena duces tecum to Shapiro &

Fishman, LLP ("S&F") under the authority of Florida's Deceptive and
Unfair Trade Practices Act ("FDUTPA") for the stated "general purpose and
scope" of investigating "possible unfair and deceptive trade practices which
involve the advertising and marketing practices" of S&F. On October 4,
2010, the trial court, Hon. Jack S. Cox, issued an order quashing the
subpoena, and finding, in part, that FDUTP A does not confer jurisdiction on
the OAG to investigate the conduct of the law firm that was the stated
subject of the investigation. The trial court's ruling was correct and the
Petition of the OAG must be denied.
12/30/2010 Active public consumer-related investi…
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Enter
Entersearch
searchhere GO Active Public Consumer-Related Investigation
HOME The case file cited below relates to a civil -- not a criminal -- investigation. The existence of an
AG Bill McCollum investigation does not constitute proof of any violation of law.

Office Information Case Number: L10-3-1146

Programs and Units
Subject of investigation: Shapiro & Fishman,
Employment
Open Government Subject's address: 2424 N. Federal Highway Suite 360 Boca Raton, Fl. 3343

Crime and Fraud Subject's business: Law Firm representing lenders in foreclosure cases
Consumer Protection
Allegation or issue being investigated:
Citizen Safety Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These
documents have been presented in court before judges as actual assignments of mortgages and have later
Victims' Services been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the
AG Opinions mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms
in the State
Keep up with our latest
AG unit handling case: Economic Crimes Division in Ft. Lauderdale, Florida
news and consumer
information:
Enter email address View contact information for Ft. Lauderdale.

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12/30/2010 News Release - Florida Law Firms Subp…
skip to content Today is December 30, 2010

Enter
Entersearch
searchhere GO Attorney General Bill McCollum News Release
HOME August 10, 2010 en Español Print Version
AG Bill McCollum Media Contact: Communications Office
Phone: (850) 245-0150
Office Information
Programs and Units Florida Law Firms Subpoenaed Over Foreclosure Filing Practices
Employment
Open Government
TALLAHASSEE, FL – Attorney General Bill McCollum today announced his office has launched three
new investigations into allegations of unfair and deceptive actions by Florida law firms handling
Crime and Fraud foreclosure cases. The Attorney General’s Economic Crimes Division is investigating whether improper
Consumer Protection documentation may have been created and filed with Florida courts to speed up foreclosure processes,
potentially without the knowledge or consent of the homeowners involved.
Citizen Safety
Victims' Services The new investigations name The Law Offices of Marshall C. Watson, P.A.; Shapiro & Fishman, LLP;
AG Opinions and the Law Offices of David J. Stern, P.A. The law firms were hired by loan servicers to begin
foreclosure proceedings when consumers were in arrears on their mortgages.
Keep up with our latest
news and consumer Because many mortgages have been bought and sold by different institutions multiple times, key
information: paperwork involved in the process to obtain foreclosure judgments is often missing. On numerous
occasions, allegedly fabricated documents have been presented to the courts in foreclosure actions to
Enter email address obtain final judgments against homeowners. Thousands of final judgments of foreclosure against Florida
Submit homeowners may have been the result of the allegedly improper actions of the law firms under
investigation.

Newsletter The Attorney General’s Office is also investigating whether the law firms have created affiliated
companies outside the United States where the allegedly false documents are being prepared and then
RSS feed submitted to the law firms for use.
Audio Msg
Subpoenas have been served on each of the law firms listed above, and the investigations are ongoing.
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12/30/2010 News Release - Attorney General files …
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Enter
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searchhere GO Attorney General Bill McCollum News Release
HOME October 11, 2010 en Español Print Version
AG Bill McCollum Media Contact: Communications Office
Phone: (850) 245-0150
Office Information
Programs and Units Attorney General files Motion for Rehearing in Judge's Ruling in Shapiro & Fishman
Employment Investigation

Open Government
Attorney General Bill McCollum today appealed last week's ruling by Circuit Judge Jack Cox that the
Crime and Fraud Attorney General could not investigate the Shapiro & Fishman law firm for the firm's alleged involvement
Consumer Protection in presenting fabricated documents to the courts in foreclosure actions to obtain final judgments against
homeowners. The Attorney General is currently investigating four law firms, The Law Offices of Marshall
Citizen Safety
C. Watson, P.A.; Shapiro & Fishman, LLP, the Law Offices of David J. Stern, P.A., and Florida Default
Victims' Services Law Group, PL for allegedly engaging in these practices.
AG Opinions
A copy of the Motion for Rehearing is available at: http://myfloridalegal.com/webfiles.nsf/WF/MRAY-
Keep up with our latest 8A5PPK/$file/AGMotionforRehearing.pdf
news and consumer
information: A copy of the Investigative Subpoena served to David Stern is available at:
http://myfloridalegal.com/webfiles.nsf/WF/MRAY-8A5PP2/$file/SternSubpoena.pdf
Enter email address
Submit A copy of the original press release announcing the investigations is available at:
http://www.myfloridalegal.com/newsrel.nsf/newsreleases/2BAC1AF2A61BBA398525777B0051BB30

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 -·"i.~

Ji' ,1,
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~:

~\
IN THE FOURTH DISTRICT COURT OF
STATE OF FLORIDA
Case No.
STATE OF FLORIDA,
----
O}rFICE OF THE '5 ()~O\oc,PrO-\64lo
ATTORNEY GENERAL"
Petitioner, ~G
\0" ~- \
0
v.
~ _ (J"Y't.
~,

SHAPIRO & FISHMAN, LLP,

Respondent. t-5-W<-'06
------------------~/ , .
l . .o:

PETITION FOR WRIT OF CERTIORARI

BILL McCOLLUM
ATTORNEY GENERAL

JASON VAIL
,'I Assistant Attorney General
iVOV _ ' Florida Bar no. 298824
3 iUlij
,, c Office of the Attorney General
'~-.-
It i:. ~
1,
PL-01
-'-_____ I The Capitol
Tallahassee, FL 32399
(850)414-3300
Jay.vail@myfloridalegal.com
 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

STATE:rv.tENT OF JURISDICTION ......................................................................... 1

STATE:rv.tENT OF THE CASE AND FACTS .......................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 6

ARGUMENT .... " ...................................................................................................... 8

I. The OAG has the authority to obtain information relevant to a possible

violation of Florida's Deceptive ~d Unfair Trade Practices law from anyone

who has it, regardless of whether that person or entity can be liable under the

law. 9

II. The OAG's authority under chapter 501 is concurrent with the Florida

Supreme court's power to regulate the practice of law...................................... 16

III. The OAG is proceeding against the Shapiro & Fishman finn. The Florida

Bar does not have jurisdiction over the activities of the firm ............................. 20

CONCLUSION ....................................................................................................... 21

CERTIFICATE OF SERVICE ............................................................................... 21

1
CERTIFICATE OF COMPLIANCE WITH RULE 9.210(a)(2) ............................ 22

TABLE OF AUTHORITIES
Cases

Adhin v. First Horizon Home Loans, _So. 3d_, 2010 WL 3808693 *1 (Fla. 5th

DCA 2010) .......................................................................................................... 16

Bruen & Christopher Architects, P.C. v. State, 29 P.3d 650 (Utah Ct. App. 2001)

............................................................................................................................. 10

Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So. 2d 114 (Fla. 5th DCA 1982) ..... 16

Carolina Portland Cement Co. v. Baumgartner, 128 So. 241 (Fla. 1930) ............. 16

Check 'N Go ofFla., Inc. v. State, 790 So. 2d 454 (Fla. 5th DCA 2001) ........ 10, 11

Cieri v. Leticia Query Realty, Inc., 905 P.2d 29 (Hawaii 1995)............................. 15

Community Healthcare Centerone, Inc. v. State, 852 So. 2d 322 (Fla. 4th DCA

2003) .................................................................................................................... 12

D.P. v. State, 597 So. 2d 952 (Fla. 18t DCA 1992) ................................................ 20

Everest Re Group, Ltd. v. Dep 't ofFin. Servs., 10 So. 3d 1120 (Fla. 1st DCA 2009)

....................................................................................................................... 10, 11

F.T.C. v. Check Enforcement, 2005 WL 1677480 (D. N.J. 2005), aff'd F.T.C. v.

Check Investors Inc., 502 F .3d 159 (3d Cir. 2007) ............................................. 15

Fabian v. Cordova, 2009 WL 2357992 (Conn. Super. Ct. 2009) ...... ~ ................... 17

11
Fendrich v. REF, L.L. C., 842 So. 2d 1076 (Fla. 4th DCA 2003) .......................... 15

Fla. Dep 't ofIns. and Treasurer v. Bankers Ins. Co., 694 So. 2d 70. (Fla. 1st DCA

1997) ................................................................................................................ 9, 11

In re Sniadecki, 924 N.E.2d 109 (Ind. 2010) .......................................................... 18

Kattar v. Demoulas, 739 N.E.2d 246 (Mass. 2000) ................................................ 16

Kelly v. Palmer, Reifler, and Associates, P.A., 681 F. SUppa 2d 1356 (S.D. Fla.

2010) .................................................................................................................... 16

Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003) .......................... 10

Pace v. State, 368 So. 2d 340 (Fla. 1979) ........................................................... 7, 20

State v. Investigation, 802 So. 2d 1141 (Fla. 2d DCA 2001) ............................. 1, 14

State v. Palmer, 791 So.2d 1181 (Fla. 1st DCA 2001) .......................................... 21

State, Department o/Legal Affairs v. Jackson, 576 So. 2d 864 (Fla. 3d DCA 1991)

............................................................................................................................. 13

The Florida Bar v. Hall, 2010 WL 3339168 (Fla. Aug. 26,2010) ........................ 18

The Florida Bar v. Kickliter, 559 So. 2d 1123 (Fla. 1990) .................................... 18

The Florida Bar v. Klausner, 721 So. 2d 720 (Fla. 1998) ...................................... 17

Therrell v. State Life Ins. Co., 145 So. 220 (Fla. 1932) .......................................... 16

Other Authorities

§ 501.201, Fla. Stat. (2010) ....................................................................................... 1

§ 501.202, Fla. Stat. (2010) ..................................................................................... 14

iii .
'. '0

§ 501.203(2), Fla. Stat. (2010) .................................................................................. 2

§ 501.204(1), Fla. Stat. (2010) ........................................................ ~ ......................... 2

§ 501.206, Fla. Stat. (2010) ..................................................................................... 2, 9

Article V, section 15, FI~. Const....................................................................... 21, 22

Ch. 831, Fla.Stat...................................................................................................... 21

Fla. R. App. P 9.100(c) (2010) .................................................................................. 1

iv
;: STATEMENT OF JURISDICTiON
This petition seeks review of an order quashing a subpoena issued by the

Office of the Attorney General ("OAG") under its investigative authority under

section 501.206, Florida Statutes. Certiorari is the proper vehicle for reviewing

such orders. See State v. Investigation, 802 So. 2d 1141, 1142 n. 1 (Fla. 2d DCA

2001); Fla. R. App. P 9.100(c) (2010).

STATEMENT OF THE CASE AND FACTS

On August 6,2010, the OAG issued an investigative subpoena to the

respondent, the law firm Shapiro & Fishman LLP ("S&F"). Exhibit 2. The

subpoena was issued pursuant to the OAG's broad statutory authority to investigate

and bring legal actions for unfair and deceptive trade practices under chapter 501,

part II, Florida Statutes (known as the "Florida Deceptive and Unfair Trade

Practices Act." (the "Act,,).l

Under the Act, the Legislature has declared that "[u]nfair methods of

competition, unconscionable acts or practices, and unfair or deceptive practices in

the conduct of any trade or commerce are hereby declared unlawful,,2 and

I § 501.201, Fla. Stat. (2010).

2Id. § 501.204(1) (emphasis added).

1
designated the OAG as the "enforcing authority" if the violation occurs in more

than one judicial circuit. 3 As indicated, the enforcement authority extends to the

conducting of "any" type of trade or commerce without limitation.

The Act also grants broad investigative authority to the OAG to pursue

matters where the OAG, due to its own inquiry or due to complaints received, "has

reason to believe" that a violation of the Act exists. § 501.206, Fla. Stat. (2010).

Where such a basis exists, the OAG "may administer oaths and affirmations,

subpoena witnesses or matter, and collect evidence." Id. The party served with a

subpoena "may file in the circuit court in the county in which he or she resides or

in which he or she transacts business and serve upon the [OAG] a petition for an

order modifying or setting aside the subpoena." Id. The petition "may raise any

objection or privilege which would be available under this chapter or upon service

of such subpoena in a civil action." Id.

Here, the OAG pursued its investigation due to "complaints from consumers

and attorneys representing consumers that the petitioners or lawyers associated

with the [the firm] have been fabricating and presenting false and misleading

documents which are then used on behalf of the [firm's] clients in foreclosure

3Id § 501.203(2), The OAG also has authority if a state attorney office (which has
enforcing authority for violations in its'circuit) either "defers to the [OAG] in
writing, or fails to act upon a violation within 90 days after a written complaint has
been filed with the state attorney." Id.
2
cases." Exhibit 4 at 2. The OAG stated it "has reason to believe that such

documents are being presented in thousands of foreclosures per month in a scheme

that has gone on at least since 2005. S&F litigates foreclosures in the state on

behalf of loan servicing companies and the OAG has received complaints that

documents filed on behalf of the firm's clients have been fabricated." Id.

The subpoena described the matter under investigation as extending "to

possible unfair and deceptive trade practices which involve the advertising and

marketing practices of the above named recipient." Exhibit 2 at 1. This statement

of the subpoena's scope is inaccurate; it does not extend to such matters, which

finn recognized. Exhibit 3 at 1_24.

The subpoena sought documents identifying employees, clients in the

financial services and mortgage servicing business, businesses used by the firm to

4 The respondent's petition in the trial court makes clear that S&K understood the
nature of the complaints received by the OAG and the true objective of the
investigation: "This matter arises as a result of the difficult economic situation that
our country is currently facing and the resulting foreclosure crisis. The Shapiro
Firm is a law firm that represents mortgage servicing companies and provides legal
services to its clients in foreclosure matters throughout the State of Florida and has
done so for over 20 years. As lawyers, the Shapiro Firm has a duty to its clients, a
duty to the judiciary and a duty to the Florida Bar to act in accordance with the
rules establi~hed regarding attorney conduct, which duties they have maintained at
all times. Although the law firms in this state that represent mortgage servicing
companies did not create the foreclosure crisis, some of them have unfairly become
the target and a convenient scapegoat for the crisis. As a result, the Shapiro Firm
has been the subject of totally unjustified complaints by mortgagors and spurious
and false allegations by defense counsel attempting to delay the process to keep
clients in their homes ..." Exhibit 3 pp. 1-2.

3
draft and execute mortgage assignments and other documents, notaries employed

by the firm, and process servers; specific case files; infonnation regarding

payments and bonuses paid to firm employees; information regarding employee

pay scales; and information concerning companies in which the firm or any finn

lawyer has an interest. Exhibit 2 pp. 6-7.

S&F petitioned to quash the subpoena, claim~ng that because its activities

constituted the representation of clients and the practice of law, it could not be

required to produce documents in a chapter 501 investigation. Exhibit 3. The frrm

also contended that the requests were overbroad. Exhibit 3 pp. 10-16.

Without conceding that its requests were overbroad, the OAG was mindful

of the burden they posed and said it was willing to work with S&F to limit the

scope of the requests. Exhibit 4 p. 2. In its response, the OAG agreed to limit

subpoena requests 1-7, 9, 12, and 13 to those documents sufficient to show the

identities of the individuals or entities sought.

After a hearing on September 30,2010, the court issued an October 4th order

quashing the SUbpoena. Exhibits 1 ( order) & 5 (hearing transcript). The trial court

concluded that the OAG was seeking "information about servicing companies' and

lenders' foreclosure practices and the legal representation of these entities by their

attorneys in foreclosure proceedings in court." Exhibit 1 at 2. The court ruled that

"the Attorney General does not have constitutional authority to travel under

4
[chapter 501] in order to investigate and/or discipline the Shapiro Finn's alleged

misfeasance in its practice of law." Id. at 4. The court said that this authority

belonged exclusively to the Florida Supreme Court.ld. at 4-5: "Therefore the

Court finds that any misconduct of the Shapiro Firm's practice of law is subject

only to regulation by the Florida Bar and/or the Circuit Court and ultimately the

Supreme Court." Id at 5. The trial court also found that the request was

"overbroad, vague, inconsistent and unduly burdensome in light of the

investigation's suggested purpose." Id. The OAG moved for rehearing, which was

denied on October 13,2010. Exhibits 6 & 7. A recent order of a circuit judge in

Broward County declined to quash a similar subpoena directed toward another law

firm. Exhibit 8.

5
 SUMMARY OF ARGUMENT
I.
The OAG has broad authority:under § 501.206, Florida Statutes (2010), to

obtain information about potential unfair or deceptive trade practices from any

person or entity that possesses it. The law does not limit the OAG's authority to

obtain such information only from those who might be liable under the Act.

Here, no dispute exists that S&K possesses information about possible

violations of the Act by others. Although the fInn is a target of the OAG

investigation, it is obvious others are involved who may be independently liable

under the Act.

Under these circumstances, Florida courts give investigators broad latitude

in conducting investigations of acts within their authority, and defer questions

about whether a particular person or entity receiving a subpoena cali be liable

under the law until ~ action is brought against them. This latitude exists because

the authority to investigate is independent of the authority to prosecute violations

of law. The only questions the trial court should have asked were whether the acts

complained of constituted potential violations of law by anyone, and whether the

OAG was authorized by statute to investigate and prosecute those violations.

Here, the alleged unlawful conduct fell within the reach of the Act. Courts,

both in Florida and around the country, have held that deceptive practices in real

6
estate transactions or debt collection can be unfair and deceptive trade practices

within the meaning of consumer protection acts. Therefore, because the alleged

illegal acts involved others besides S&K, because of the broad reading the court is

required to chapter 501, and because of the latitude that the courts give to

investigators, the trial court should not have quashed the subpoena.

II.

The trial court erred in concluding that only the courts have jurisdiction over

the acts under scrutiny. The OAG has concurrent jurisdiction to proceed, even if

the matters under investigating were performed by lawyers when representing

clients. In numerous cases, the Florida Supreme Court has disciplined lawyers for

falsifying documents and using them when representing clients - cases in which

the lawyers were also convicted of crimes. Yet it has never expressed any concern

that the convictions trespassed on its exclusive constitutional authority to discipline

attorneys.

In fact, the Florida Supreme Court has specifically held: "Simply because

certain conduct is subject to professional discipline is no reason why the legislature

may not proscribe the conduct. Under the police power, the legislature may enact

penal legislation that affects the legal profession just as it can with regard to other

occupations and professions." Pace v. State, 368 So. 2d 340, 345 (Fla. 1979). The

court thereby has recognized that the executive branch has concurrent jurisdiction

.7
of behavior that may violate t4e Rules of Professional Conduct.

III.

The OAG -may proceed against S&K without interfering with the courts'

authority to regulate attorney discipline. Article V, section 15, of the Florida

Constitution does not confer authority on the courts to regulate the conduct of law

frrms. Indeed, the director of lawyer regulation at The Florida Bar, testified by

affidavit that the Bar lacks the authority to act on complaints against law firms.

Because the Bar, as the investigatory and prosecutorial arm of the Supreme Court,

lacks the authority to proceed against S&K, no constitutional impediment exists to

the OAG doing so under chapter 501.

ARGUMENT
In this petition, the OAG seeks review of only that part of the circuit court's

order holding that it lacks the authority to require S&F to respond to the sUbpoena.

As discussed below, the OAG has that authority. The OAG requests a remand to

the circuit court to enable the withdrawal of the subpoena and the issuance of one

more narrowly tailored than the original.

8
I. THE OAG HAS THE AUTHORITY TO OBTAIN INFORMATION RELEVANT TO A
POSSmLE VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE
PRACTICES LAW FROM ANYONE WHO HAS IT, REGARDLESS OF WHETHER
THAT PERSON OR ENTITY CAN BE LIABLE UNDER THE LAW.

No question exists that S&F may have relevant information about violations

of Florida's Unfair and Deceptive Trade Practices Act. Section 501.206(1), Florida

Statutes, authorizes the OAG to obtain such information about a possible violation

of the Act from any person or entity having such information, regardless of

whether that person or entity ultimately can be subject to liability under the act:

If, by his or her own inquiry or as a result of complaints, the enforcing

authority has reason to believe that a person has engaged in, or is engaging
in, an act or practice that violates this part, he or she may administer oaths
and affmnations, subpoena witnesses or matter, and collect evidence.

§ 501.206(1). Nothing in this subsection limits the OAG's authority to obtain

evidence only from those who can be held liable under chapter 501. By its plain

terms, the statute is a broad grant of authority to seek and obtain information from

anyone who has it, regardless of the source.

The OAG's authority to issue investigative subpoenas is defmed by statute5

and by the state and federal Constitutions. To exercise this authority to obtain

information, the OAG must have reason to believe that a violation of law has taken

place. See Check 'N Go ofFla., Inc. v. State, 790 So. 2d 454, 458 (Fla. 5th DCA

5 Fla. Dep't o/Ins. and Treasurer v. Bankers Ins. Co., 694 So. 2d 70, 71 (Fla. 1st
DCA 1997) (agency's investigative authority "is no more and no less than what the
Legislature prescribes by law").

9
2001). lfthe acts under investigation do not violate the law, the OAG may not

investigate them. See Major League Baseball v. Crist, 331 F.3d 1177, 1179 (11th

Cir. 2003) (holding that Fourth Amendment prohibits Florida OAG's investigation

of acts that do not violate state or federal antitrust law).

The OAG may obtain information via an investigation from a person or

entity who is neither alleged to be the "bad actor" nor subject to suit, provided the

information sought pertains to the potentially illegal acts of another. See Major

League Baseball, 331 F .3d at 1183; Fla. Dep'i ofIns. & Treasurer v. Bankers Ins.

Co., 694 So. 2d at 71 (investigating agency has "the power to get information from

those who best can give it"); Everest Re Group, Ltd. v. Dep't ofFin. Servs., 10 So.

3d 1120, 1121-22 (Fla. 1st DCA 2009) (agency may obtain information from

witnesses); Brixen & Christopher Architects, P.C. v. State, 29 P.3d 650 (Utah Ct.

App.2001).

This broad authority exists because the OAG's authority to investigate exists

independently of his authority to file suit against the subpoena's recipient. Everest

Re Group, Ltd., 10 So. 3d atl121. Within the limits of this authority, the OAG may

conduct an i:nvestigation and obtain information from those who may have

information relevant to the investigation. Id An investigative subpoena is

presumptively valid and entitled to enforcement if it is within the agency's

authority, is not indefinite, and seeks information that is reasonably relevant. Fla.

10
•
Dep;t ofIns., 694 So. 2d at 73. The purpose of an investigative subpoena is to

allow an investigative agency to investigate, collect evidence, and detennine if a

violation of the law has occurred. Check 'N Go, 790 So. 2d at 457. Because the

purpose of an investigative subpoena is to discover evidence - Qut not necessarily

prove a pending charge - "its function is distinct from an adjudication, and,

accordingly, more latitude is allowed in considering the foundation for the

subpoena." Id. at 458. Where the OAG has "reason to believe" that a violation of

law has occurred, he is entitled to investigate to detennine whether, in fact, such a

violation has taken place. Id. at 458-459.

Here, the OAG has merely sought - by a valid subpoena - the type of

information that is routinely sought where potential violations of the Act are

brought to the OAG's attention. This matter is similar to that in Community

Healthcare Centerone, Inc. v. State, 852 So. 2d 322 (Fla. 4th DCA 2003), which

involved a statewide prosecutor's investigative subpoena in a Medicaid fraud case.

The targets moved to quash, arguing that the statewide prosecutor lacked

jurisdiction to investigate a suspected crime because the targets operated in only

one county (the statewide prosecutor having jurisdiction to prosecute crimes that

span multiple judicial circuits). The court upheld the subpoena on the ground that

until the investigation was completed and a decision made whether to prosecute, it

was unknown if, in fact, the alleged crime fell into a category that the prosecutor

11
could constitutionally pursue:

The subpoena, we note, seeks infonnation as to transactions between

appellants and other entities, which are not necessarily located in the same
county as the appellants. And, as appellants acknowledge, they seek
reimbursement in Leon County. Because there is no way to know, until the
investigation is concluded and charges are filed, who will be prosecuted, or
if crimes are alleged to have occurred in two or more judicial circuits, we
affirm this issue without prejudice to appellants raising it if charges ensue.

Id. at 325 (emphasis added). The same type of analysis applies here; the OAG is

simply seeking relevant information about possible violations of the Act and

whether any charges will be ultimately brought is unknown currently.

The court in State, Department ofLegal Affairs v. Jackson, 576 So. 2d 864

(Fla. 3d DCA 1991), reached a similar result. In that case, the target of an

investigatory subpoena contended that its activities were protected by the free

exercise clause of the First Amendment, and therefore could not be subject to

investigation. The district court disagreed, stating:

Anl0ng the Department's contentions, it argues that, based upon the

complaints it received, it has a sufficient reason to investigate Jackson's
activities. We agree with the Department on this point. The subpoenas issued
by the Department were merely investigative in nature and the Department
had a right to a careful review of the documents. It may be the case that,
after a careful review of the documents and records subpoenaed, the
Department might choose not to pursue further actions regarding Jackson's
activities. See R. W. v. Department ofProfessional Regulation, Board. of
Osteopathic Medical Examiners, 566 So. 2d 26 (Fla. 3d DCA 1990);
Winfieldv. Div. ofPari-Mutuel Wagering, Department ofBusiness
Regulation, 477 So. 2d 544 (Fla.l985). We need not render afinal
determination at this juncture as to whether or not Jackson's activities
constitute IIconsumer transactions" as contemplated by Section 501.203(1).

12
•
We need only consider whether the Department is entitled to investigate
Jackson's activities for the purpose of making further determinations.
Accordingly, we find that the Department is entitled to investigate the
complaints that it has received and is well within its right to issue the
subpoenas to further this purpose.
We reach the same result when addressing Jackson's contention on appeal
that his activities are protected by the First Amendment. The instant case
deals only with the issuance of investigative subpoenas and is not a
determination on the merits 0/a criminal prosecution or a civil lawsuit,
where the question o/whether Section 501.203(1) conflicts with the
appellee's religious freedom must be answered Therefore, the First
Amendment freedom of religion clause is not a bar to the Department's
issuance of subpoenas involved herein.
Id. at 865 (Emphasis added).

At issue in this case are transactions involving real estate, which easily fall

within the reach of the Act. "Trade or commerce" is broadly defined and must be

broadly construed to include such transactions. §§ 501.2026 & -.203(8)7, Fla. Stat.;

6 "Sec~ion 501.202. Purposes; rules of construction

"The provisions of this part shall be construed liberally to promote the following
policies:
"(1) To simplify, clarify, and modernize the law governing consumer protection,
unfair methods of competition, and unconscionable, deceptive, and unfair trade
practices.
"(2) To protect the consuming public and legitimate business enterprises from
those who engage in unfair methods of competition, or unconscionable, deceptive,
or unfair acts or practices in the conduct of any trade or commerce.
"(3) To make state consumer protection and enforcement consistent with
established policies of federal law relating to consumer protection."

7"(8) 'Trade or commerce' means the advertising, soliciting, providing, offering,

or distributing, whether by sale, rental, or otherwise, of any good or service, or any
13
•
see Fendrich v. RBF, L.L.C., 842 So. 2d 1076, 1079 (Fla. 4th DCA 2003)

(upholding buyer's right to proceed under the Act ,in dispute over the sale ofa

home). Among other things, S&F and its lawyers are suspected of facilitating these

transactions by falsifying documents necessary to give the appearance that their

clients have interests in property and then using those false documents to obtain

debtors' property. Those who facilitate real property transactions can be held liable

for consumer fraud. See, e.g., Cieri v. Leticia Query Realty, Inc., 905 P.2d 29

(Hawaii 1995) (broker who facilitated real property transactions could be liable

under state's consumer protection statute).

Unfair debt collections practices also violate consumer protection la~. See

F.T.C. v. Check Enforcement, 2005 WL 1677480 (D. N.J. 2005), affd F.T.C. v.

Check Investors Inc., 502 F.3d 159 (3d Cir. 2007). 8 This is so even if one of the

actors was an attorney conducting collections litigation. Id. 9

property, whether tangible or intangible, or any other article, commodity, or thing

of value, wherever situated. 'Trade or commerce"
, shall include the conduct of any trade or commerce, however denominated,
including any nonprofit or not-for-profit person or activity."
8 In construing the Act, courts must give great weight to federal decisions
interpreting federal consumer protection law rendered as of July 1,2006. See
§ 501.204(2), Fla. Stat (2010).
9 The result in Check Enforcement is contrary to that in Kelly v. Palmer, Reifler,
and Associates, P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2010), a case relied on by
the trial court. In Kelly, the court concluded that collections demand letters were
not in trade or commerce. Kelly, 681 F. Supp. 2d at 1374. In Check Enforcement,
14
 Since mortgages are instruments to secure a debt, IO and foreclosure

proceedings are actions to collect on that debt, t 1 unfair and deceptive trade

practices involving mortgage foreclosures must fall within the reach of chapter

501. See, e.g., Kattar v. Demoulas, 739 N.E.2d 246, 257 (Mass. 2000) (unfair acts

or practices in mortgage foreclosure proceeding violated state's consumer

protection act). Furthermore, the falsification of documents to give someone an

interest in property can be actionable under a state's consumer protection laws.

See, e.g., Fabian v. Cordova, 2009 WL 2357992 (Conn. Super. Ct. 2009)

(falsification of bill of sale and purchase agreement stated claim under Connecticut

consumer protection act).

Ample reason exists to believe that the alleged bad acts in this case are

actionable under chapter 501. But even if S&F could not be held liable under the

Act, other persons are involved: the clients claiming the right to property. Because

of the broad reading that courts must give to chapter 501, and the cases giving

investigators latitude within their statutory authority to inquire, the OAG has the

authority to investigate these serious allegations. Any doubts about the OAG's

the court concluded that such activity was indeed in commerce. Check
Enforcement, 2005 WL 1677480 * 1, *10.
10See e.g., Adhin v. First Horizon Home Loans, _So. 3d _,2010 WL 3808693
*1 (Fla. 5th DCA 2010).
11Therrell v. State Life Ins. Co., 145 So. 220 (Fla. 1932); Carolina Portland
Cement Co. v. Baumgartner, 128 So. 241,248 (Fla. 1930); Cain & Bultman, Inc. v.
Miss Sam, Inc., 409 So. 2d 114, 118 (Fla. 5th DCA 1982).
15
right to proceed against the law finn should be resolved, if at all, only it he decides

to bring such an action. Consequently, this court should find that the trial court

improperly quashed the subpoena.

II. THE OAG's AUTHORITY UNDER CHAPTER 501 IS CONCURRENT WITH THE
FLORIDA SUPREME COURT'S POWER TO REGULATE THE PRACTICE OF LAW.

The trial court's fundamental premise, that only the courts have jurisdiction

of the firm's conduct (assuming it is the sole target of the investigation), is

mistaken. When an attorney is suspected of creating and then using forged

documents, even in court, the judicial and executive branches have concurrent

jurisdiction. See, e.g., The Florida Bar v. Klausner, 721 So. 2d 720 (Fla. 1998)

(attorney forged documents used in court; convicted and suspended from practice

oflaw)12; The Florida Bar v. Kickliter, 559 So. 2d 1123 (Fla. 1990) (attorney

forged client's signature on will and submitted forged will for probate; convicted

12 Ethics "charges arose from Klausner's representation of a corporate client in a

number of small claims collections actions. In many of the cases, Klausner had
obtained stipulations of settlemeJ:?t from the debtors, and those debtors were
making monthly payments on their obligations. However, in late 1995, Klausner
received notices of abatement from the court in a number of cases because there
had been no record activity in six months. In ten of these cases, in order to prevent
abatement, Klausner recreated existing stipulations, signed the debtors' names
without their knowledge or authorization, and submitted them to the court during
two separate abatement hearings." Id., at 720. "Klausner pled nolo contendere to
the felony charges of scheming to defraud, forgery, and uttering a forged
instrument." Id. at 721. However, he was only judged guilty of related
misdemeanors. Id.
16
and disbarred) ;13 The Florida Barv. Hall, 2010 WL 3339168 (Fla. Aug. 26, 2010)

(attorney filing forged documents in county records commits a felony); The

Florida Bar v. Baker, 810 So. 2d 876 (Fla. 2002); see also In re Sniadecld, 924

N.E.2d 109, 116-118 (Ind. 2010) (attorney falsifying loan documents committed

criminal act that also subjected him to bar discipline). In none of these cases did

the Florida Supreme Court express any concern that the actions of the executive

branch in securing convictions against th~ attorneys somehow trespassed on the

courts' authority to regulate the practice of law. ,

On rehearing below, the trial court distinguished these cases on the ground

that they involved" criminal prosecutions and the OAG was not pursuing a criminal

case. But the OAG cited these cases for the point that a lawyer's use of falsified

documents can violate both the canons of ethics and statutory law, subjecting the

lawyer to action both by the courts and the executive branch. Even if the acts of

S&F and its attorneys constitute the practice of law, the Legislature is not barred

from imposing additional liability for them. As the cases cited above indicate, such

statutory penalties do not interfere with the courts' ability to perfonn their

13 "Kickliter forged his client's signature on [a] new will. He had two of his
employees witness the forged signature, and Kickliter, himself, notarized the self-
authenticating clause. He then submitted the forged will for probate.... [T]he state
charged Kickliter with forgery, uttering a forged instrument, and taking a false
acknowledgment, all third-degree felonies. Kickliter pled guilty to the three
charges in August 1988 ... .".Id. at 1123.

17
constitutional regulatory function - they complement it.

The circuit court's decision cannot be defended on separation~of-power

grounds. Florida's separation-of-powers clause prohibits one of the three branches

of government from exercising a power constitutionally given exclusively to

another branch:

Article II, Section 3, of the Florida Constitution mandates that "[n]o person
belonging to one branch shall exercise any powers appertaining to either of
the other branches unless expressly provided herein." Under this
constitutional provision the legislature is prohibited from conferring upon
administrative agencies authority which the constitution assigns exclusively
to the legislature itself. Florida State Ed. ofArchitecture v. Wasserman, 377
So. 2d 653, 655 (Fla. 1979).

D.P. v. State, 597 So. 2d 952,954 (Fla. 1st DCA 1992) (emphasis added).

Article V, section 15, of the Florida Constitution confers on the Supreme

Court "exclusive jurisdiction to regulate the admission of persons to the practice of

law and the discipline of persons admitted." (Emphasis added). The highlighted

language indicates exclusive jurisdiction to "regulate" two aspects of attorney

oversight: admission and discipline. The Supreme Court has not construed this

section or its language to prohibit the Legislature from enacting statutes that

address attorney conduct that amounts to violations of criminal laws and related

prohibitions. In Pace v. State, 368 So. 2d 340 (Fla. 1979), the court upheld a

statute criminalizing the solicitation of legal business. The court rejected the notion

that the Legislature may not punish lawyer behavior "harmful to the public welfare

18
 if the conduct also falls within the purview of this Court's authority tp discipline
.,
lawyers for violating the Code of Professional Responsibility." Id. at 345. The

court went on to say, "Simply because certain conduct is subject to professional

discipline is no reason why the legislature may not proscribe the conduct. Under

the police power, the legislature may enact penal legislation that affects the legal

profession just as it can with regard to other occupations and professions." Id See

also State v. Palmer, 791 So. 2d 1181 (Fla. 1st DCA 2001). While the courts have

exclusive authority to regulate the admission of individuals to the Bar and the

discipline of lawyers, as the cases cited above indicate, that power has never been

understood to prohibit the Legislature from regulating the falsification of

documents or the use of those documents by lawyers. See e.g., ch. 831, Fla.Stat.,

Nor does Article V, section 15 prohibit the Legislature from enacting

statutes under its police power that regulate lawyers' business activity. Here, it is

an unfair and deceptive trade practice to assert a false riiht to property and then to

take it from the rightful owner. This type of unfair or deceptive activity in

commerce falls squarely within the Legislature's authority to proscribe under Pace

v. State. No obstacle exists to potential liability of a law firm engaged in unfair and

deceptive trade practices under these facts. Accordingly, even if the finn was the

only target of the investigation, the trial court should not have quashed the

SUbpoena.

19
 • I t

III. THE OAG IS PROCEEDING AGAINST THE SHAPIRO & FISHMAN FIRM. THE
o FLORIDA BAR DOES NOT HAVE JURISDICTION OVER THE ACTIVITIES OF THE
FIRM.

Even ifS&F lawyers are shielded by the Supreme Court's exclusive

jurisdiction to regulate the practice of law, the law firm is not exempt from the

OAG's investigative authority under chapter 5'01.

As noted above, article V, section 15, authorizes the Supreme Court to

regulate the disciplining of lawyers. It does not give exclusive authority over law

firms as business entities.

Indeed, the director of lawyer regulation for The Florida Bar provided an

affidavit stating that it lacked jurisdiction to investigate or discipline law firms.

Exhibit 6 at 4-5:

7. Florida Bar inquiries regarding issues of alleged misconduct of Florida

attorneys are conducted only as to individual attorneys, not as to law firms
or other business entities composed of attorneys.
8 The Florida Bar does not regulate, conduct inquiries into, or have any
authority over law finns, corporations, professional service corporations,
limited liability companies or other business entities composed of attorneys.
This statement is consistent with article V, section IS's focus on the disciplining of

lawyers.

Even if the trial court is correct that the OAG is preempted as to individual

attorneys, the OAG cannot be preempted as to the firm if the Bar, an arm of the

Supreme Court, has no jurisdiction to act against it.

20
 CONCLUSION
F or these reasons, the trial court departed from the essential requirements of

law, and this court should reverse and remand to the trial court for further

proceedings.

IDUSMITIED,
L CCOLLuL
RNEY GENERAL

JASON VAIL .
Assistant Attorney General
Florida Bar no. 298824

Office of the Attorney General

PL-01
The Capitol
Tallahassee, FL 32399
(850)414-3300
Jay.vail@myfloridalegal.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent

via U.S. Mail to the Honorable Jack Cox, circuitjudge,205 N. Dixie Highway,

West Palm Beach, FL 33401; and Gerald Richman, One Clearlake Center, suite

1504,250 Australian Ave. South, West Palm Beach, FL 33401, thiS~Of

November, 2010.

21
 CERTIFICATE OF COMPLIANCE WITH RULE 9.210(a)(2)
I hereby certify that this brief complies with the fonnatting requirements of

Rule 9.210(a)2.

22
 IN THE DISTRICT COURT OF APPEAL
OF THE STATE OF FLORIDA
FOURTH DISTRICT" WEST PALM BEACH, FLORIDA

STATE OF FLORIDA, CASE NO. 4DI0-4526

OFFICE OF THE LT No. 50201 OCA21246
ATTORNEY GENERAL,

...
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Petitioner, f-,#I"f l '
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DEC 2 3 2010 ':J
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SHAPIRO & FISHMAN, LLP, I

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RESPONSE TO PETITION FOR CERTIORARI

Counsel for Respondent

250 Australian Avenue, South
One Clearlake Centre, Suite 1504
West Palm Beach, FL 33401-5016
Telephone: (561) 803-3500
Facsimile: (561) 820-1608

GERALD F. RICHMAN
Florida Bar No. 066457
MICHAEL J. NAPOLEONE
Florida Bar No. 0147524
LEORA FREIRE
Florida Bar No. 013488
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................. i

TABLE OF AUTHORITIES .......................................................................... ii

INTRODUCTION ........................................................................................... 1

STATEMENT OF THE FACTS ..................................................................... 1

SUMMARY OF ARGUMENT ...................................................................... 7

ARGUMENT .................................................................................................. 8

I. THE OFFICE OF THE ATTORNEY GENERAL DOES NOT

HA VE AUTHORITY UNDER FLORIDA'S DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT TO ISSUE AN
INVESTIGATIVE SUBPOENA TO SHAPIRO & FISHMAN ................ 8

II. ABSOLUTE IMMUNITY IS AFFORDED TO ANY ACT

OCCURRING DURING THE COURSE OF, OR NECESSARILY
PRELIMINARY TO, THE COURSE OF A JUDICIAL
PROCEEDING .......................................................................................... 19

III. THE FLORIDA BAR HAS SOLE AND EXCLUSIVE

JURISDICTION OVER THE CONDUCT AND DISCIPLINE OF
LAWYERS AND, BY NECESSARY IMPLICATION, THE FIRMS
WITH WHICH THOSE ATTORNEYS PRACTICE ............................... 26

CONCLUSION ............................................................................................. 29

CERTIFICATE OF SERVICE ..................................................................... 29

CERTIFICATE OF COMPLIANCE ............................................................ 30

RICHMAN GREER, P.A.

Miami- West Palm Bead!
 TABLE OF AUTHORITIES

Cases
American National Title & Escrow of Florida, Inc. v. Guarantee Title &
Trust Co.,
748 So.2d 1054 (Fla. 4th DCA 1999) ................................................. 23, 24

Begelfer v. Najarian,
381 Mass. 177,409 N.E.2d 167, 169-70 (SupJud.Ct.Mass. July 18,1980)
................................................................................................................... 14

Benvenuti Oil Co. v. Foss Consultants, Inc.,

2006 WL 328678 (Conn.Super.Ct. Jan. 25, 2006) ....................... 14, 15, 16

Boca Investors Group, Inc. v. Potash,

835 So. 2d 273 (Fla. 3d DCA 2002) ................................................... 24, 25

Burton v. Salzberg,
725 So. 2d 450, 451 (Fla. 3rd DCA 1999) ................................................ 25

Dalesandro v. Longs Drug Stores Cal., Inc.,

383 F.Supp.2d 1244, 1250-51 (D. Hawaii 2005) ...................................... 14

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole,

950 So. 2d 380, 383-84 (Fla. 2007) ............................................... 19, 20, 22

Florida Evergreen Foliage v. E.l. Du Pont De Nemours & Co.,

135 F. Supp. 2d 1271 (S.D. Fla. 2001) ............................................... 22, 23

Fridovich v. Fridovich,
598 So. 2d 65 (Fla. 1992) .......................................................................... 20

Jamgochian v. Prousalis,
2000 WL 1610750 (Del. Super. Aug. 31,2009) ................................. 17, 18

Kelly v. Palmer, Reifler & Assoc., P.A.,

681 F.Supp.2d 1356 (S.D.Fla. 2010) ...................................... 12, 13, 14, 15

RICHMAN GREER. P.A.

Miami- West Palm Bead!

ii.
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United
States Fire Ins. Co.,
639 So. 2d 606 (Fla. 1994) ................................................................. passim

Ponzoli & Walsenburg, P.A. v. Zuckerman,

545 So. 2d 309 (Fla. 3d DCA 1989) ......................................................... 24

Rushing v. Bosse,
652 So. 2d 869 (Fla. 4th DCA 1995) ........................................................ 25

Sailboat Key, Inc. v. Gardner,

378 So. 2d 47,48 (Fla. 3rd DCA 1980) .................................................... 25

Sweringen v. New York State Dispute Resolution Annn. (NYSDRA),

2006 WL 2811825 (N.D.N. Y. Sept. 28, 2006) ......................................... 13

Trent v. Mortgage Electronic Registration Systems, Inc.,

618 F .Supp.2d 1356, 1357 (M.D.Fla. 2007) ....................................... 11, 12

Wright v. Yurko,
446 So.2d 1162 (Fla. 5th DCA 1984) ....................................................... 20

Statutes
Fla. Stats. §50 1.203(8) .............................................................................. 9, 12

Fla. Stats. §501.209 ....................................................................................... 27

Florida Statutes §50 1.206 ................................................................................ 7

Rules
Florida Rule of Judicial Administration 2.060(d) ......................................... 25

RICHMAN GREER, P.A.

Mlamt • West Palm Beach

iii
 State oj'J . 'ida, Office of The Attorney General v apiro & Fishman LLP
4th DCA Case No.: 4010-4526

INTRODUCTION
On or about August 6, 2010, the Office of the Attorney General

("OAG") issued an investigative subpoena duces tecum to Shapiro &

Fishman, LLP ("S&F") under the authority of Florida's Deceptive and

Unfair Trade Practices Act ("FDUTPA") for the stated "general purpose and

scope" of investigating "possible unfair and deceptive trade practices which

involve the advertising and marketing practices" of S&F. On October 4,

2010, the trial court, Hon. Jack S. Cox, issued an order quashing the

subpoena, and finding, in part, that FDUTPA does not confer jurisdiction on

the OAG to investigate the conduct of the law firm that was the stated

subject of the investigation. The trial court's ruling was correct and the

Petition of the OAG must be denied.

STATEMENT OF THE FACTS

Shapiro & Fishman ("S&F") is a law firm that represents mortgage

servicing companies and provides legal services to its clients in foreclosure

matters throughout the State of Florida and has done so for over 20 years.

RICHMAN GREER, P.A.

Miami. Wac Pillm Beach
1
 State 011 ,'ida, Office 01 The Attorney General v...apiro & Fishman LLP
4th DCA Case No.: 4D 10-4526

Exh. 3, p. 1. I As lawyers, the Shapiro Firm has a duty to its clients, a duty to

the judiciary and a duty to the Florida Bar to act in accordance with the rules

established regarding attorney conduct, which duties they have maintained at

all times. Id.

On August 6, 2010, the Office of the Attorney General ("OAG")

issued an investigative subpoena duces tecum (the "Subpoena") upon S&F.

Exh. 2. On its face, the Subpoena states that the OAG relied exclusively

upon its investigative powers conferred to it pursuant to Florida's Deceptive

and Unfair Trade Practices Act ("FDUTPA"). Id. The Petition makes clear

that FDUTPA is the sole basis for the ~AG's purported authority in issuing

the Subpoena. Petition, 1. The subpoena states that, "The general purpose

and scope of this investigation extends to possible unfair and deceptive trade

practices which involve the advertising and marketing practices of [S&F]."

(Emphasis added). Exh. 2. Just four days later, the OAG issued a press

release announcing its investigation of three law firms handling foreclosure

lawsuits on behalf of lenders; S&F was specifically mentioned by name as a

target of the investigation. Exh. 3 at Exh. B. Specifically, the press release

announced that the OAG,

I Citations to "Exh." herein reference the exhibits to the ~AG's Petition.

RICHMAN GREER. P.A.

Miami. West Palm Bach

2
 State of I /'ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

launched three new investigations into allegations

of unfair and deceptive actions by Florida law
firms handling foreclosure cases. The Attorney
General's Economic Crimes Division is
investigating whether improper documentatIon
may have been created and filed with Florida
courts to speed up the foreclosure processes,
potentially without the knowledge or consent of
the homeowners involved.

* * *
Because many mortgages have been bought and
sold by different institutions multiple times, key
paperwork involved in the process to obtain
foreclosure judgments is often missing. On
numerous occasions, allegedly fabricated
documents have been presented to the courts in
foreclosure actions to obtain final judgments
against homeowners. Thousands of final
judgments of foreclosure against Florida
homeowners may have been the result of the
allegedly improper actions of the la", firms under
investigation.

Id.

The Subpoena commanded the production of thirteen categories of

documents related to S&F's legal representation of lending institutions in

foreclosure matters as well as the internal operations of the firm. Exh. I, p.

2; Exh. 2, pp.6-8. Despite the clearly expressed purpose and scope of the

investigation, the Subpoena does not seek any evidence whatsoever related

to S&F's "advertising and marketing practices." Id.

RICHMAN GREER, P.A.

Mblml. West PlIlm Brllch

3
 State of.l 'ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4D 10-4526

On August 20, 2010, S&F filed a petition to quash the ~AG's

investigative subpoena ("Petition to Quash"). Exh. 3. The Petition to Quash

cited three primary bases on which to quash the Subpoena: (1) the OAG

lacks authority under FDUTPA to investigate claims against a law firm

based on its practice of law and its conduct of litigation during and

incidental to a judicial proceeding, (2) the subpoena sought to investigate

conduct of the firm and its employees that is protected pursuant to Florida's

absolute litigation privilege, and (3) the subpoena was overbroad and unduly

burdensome. 2 Exh. p.8-IO.

The OAG filed its response to the Petition to Quash on September 23,

2010. In that response, the OAG emphasized the scope of the investigation

as almounced in the press release, but not in its subpoena; specifically, that

it

received complaints from consumers and attorneys

representing consumers that [S&F] or lawyers
association with [S&F] have been fabricating and
presenting false and misleading documents which

2 The OAG states that its Petition "seeks review of only that part of the
circuit court's order holding that it lacks the authority to require S&F to
respond to the subpoena." Petition, p.8. Accordingly, S&F's Response
addresses only the authority of the OAG under FDUTPA and does not
address the overbreadth and unduly burdensome arguments raised below
which are overwhelmingly supported by the record.

RICHMAN GREER; P.A.

Mluml. Wesl Palm Beach
4
 State of1 • 'ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

are then used on behalf of [S&F] ,s clients in

foreclosure cases. These documents, often
assignments of security interests in real estate
mortgages, have been used to establish the right to
foreclose on mortgages in favor of [S&F] ,s clients.
These documents have been presented in court and
have been recorded in the public records of the
county where the property is located; yet later they
have been shown to be legally inadequate and/or
insufficient. The [OAG] has reason to believe that
such documents are being presented in thousands
of foreclosures per month in a scheme that has
gone on at least since 2005. [S&F] litigates
foreclosures in the state on behalf of loan servicing
companies and the [OAG] has received complains
that documents filed on behalf of [S&F]' s clients
have been fabricated.

Exh. 4, p.2.

On September 30,2010, the Hon. Jack S. Cox conducted a hearing on

S&F's Petition to Quash. At that hearing, counsel for the OAG told the

court that "[t]he front of the subpoena does mis-state the purpose of the

investigation," and that the language that mentions its investigation of S&F's

advertising practices was a "mistake." Exh. 5, p.ll. The OAG further argued

to the court that the investigation "doesn't necessarily [sic] that the law firm

is the bad apple. They're simply the source of the information. As if they

were a witness who nright have information about the bad apples somewhere

else." Exh. 5, p.14. The court noted, and the OAG agreed, that the subpoena

RICHMAN GREER. P.A.

Miami- West Palm Buch

5
 State of I . ida, Office of The Attorney General v.. ..zpiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

was not being used for the investigation of a crime. Id. at p. 16. The court

noted that the subpoena did not mention anywhere that it was looking for

"information about some bad actor." Id. at p.17.

At the hearing, S&F's counsel advised the court that it agreed to

voluntarily cooperate with the investigation of the OAG, but maintained that

the OAG lacked jurisdiction to conlpel the production of the requested

information. Exh. 5, pp. 5-10. The OAG never withdrew the August 6, 2010

subpoena, nor has an amended subpoena been issued and served upon S&F.

Exh. 5, pp.5-8, 23-24.

Following the hearing, on October 4, 2010, the trial court issued its

order quashing the ~AG's investigative subpoena. In its order, the trial court

noted that the Florida Constitution confers exclusive jurisdiction to regulate

and discipline attorneys to the Florida Supreme Court. Exh. 1, p. 2-3. The

conduct referenced by the OAG as the stated basis of its investigation -

advertising and marketing - is expressly regulated by The Florida Bar as an

arm of the supreme court. Id. Based on the cited authorities, the court

concluded that the OAG did not have "constitutional authority to travel

under FDUTPA in order to investigate and/or discipline [S&F)'s alleged

misfeasance in its practice of law." Id. In rejecting the arguments made by

RICHMAN GREER, P.A.

Miami- West Palm Beach
6
 State of1 ida, Office of The Attorney General v. ·.apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

the OAG that the subpoena may reveal actionable conduct by others and not

necessarily the lawyers at S&F, the court noted that it "is confined to the

four comers of the Subpoena itself, which does not include any limiting

language to that effect." Exh. 1, p. 5. The court concluded by finding that

"even if the conduct of [S&F] is subject to FDUTPA, the terms of the

Subpoena are overbroad, vague, inconsistent and unduly burdensome in light

of the investigation's suggested purpose." Id.

S~YOFARGUMENT

While Florida Statutes §501.206 confers upon the OAG broad

investigatory authority arising from violations of FDUTP A, such authority

has limits. The applicable limit here is that the conduct sought to be

investigated must relate or pertain to "trade or commerce." The alleged

wrongful conduct of S&F and its clients does not constitute "trade or

commerce" within the meaning of FDUTPA. Accordingly, the trial court

was correct in quashing the investigative subpoena.

Additionally, the alleged wrongful conduct of S&F and its clients -

"fabricating and presenting false and misleading documents which are then

used on behalf of the [firm's] clients in foreclosure cases" - are actions

arising in the context of civil litigation. Such actions are protected by

RICHMAN GREER, P.A.

Miami- Wat Palm Beach
7
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State of J .• ida, Office of The Attorney General v. apiro & Fishman LLP
. 4th DCA Case No.: 4DIO-4526

Florida's absolute litigation privilege that affords absolute immunity to any

act occurring during, or necessarily preliminary to, a judicial proceeding, so

long as the act has some relation to the proceeding.

Finally, the OAG argues that it and not The Florida Bar is the proper

agency to police the actions of attorneys undertaken on behalf of their

clients. The Florida Constitution confers upon the Supreme Court of Florida

the exclusive jurisdiction to regulate and discipline attorneys. The Florida

Bar, as an official arm of the Supreme Court of Florida, regulates the

conduct of law firms and law firm staff by regulating and disciplining the

attorneys in the firm and those with supervisory authority over non-lawyer

staff.

ARGUMENT

I. THE OFFICE OF THE ATTORNEY GENERAL DOES NOT

HAVE AUTHORITY UNDER FLORIDA'S DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT TO ISSUE AN
INVESTIGATIVE SUBPOENA TO SHAPIRO & FISHMAN

The genesis of the OAG's Petition is the false premise that the

purported conduct of S&F and its clients - if true - constitutes violations of

FDUTPA. However, because the complained of practices do not fall within

FDUTPA's prohibitions, the trial court was correct in quashing the OAG's

investigatory SUbpoena.

RICHMAN GREER. P.A.

Mlallll· West Palm Bud!

8
 State 011 ..ida, Office 01 The Attorney General v. apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

Florida's Deceptive and Unfair Trade Practices Act was designed "to

protect the consuming public and legitimate business enterprises from those

who engage in unfair methods of competition, or unconscionable, deceptive,

or unfair acts or practices in the conduct of any trade or commerce." Fla.

Stats. §50 1.203(8). As defined by the Act, "trade or commerce" means,

the advertising, soliciting, providing, offering, or

distributing, whether by sale, rental, or otherwise,
of any good or service, or any property, whether
tangible or intangible, or any other article,
commodity, or thing of value, wherever situated.
'Trade or commerce' shall include the conduct of
any trade or commerce, however denominated,
including any nonprofit or not-for-profit person or
activity.

Fla. Stats. §50 1.203(8). Thus, the threshold question is whether the alleged

wrongful practices of S&F and its clients fall within the statutory definition

of "trade or commerce."

The ~AG's announced purpose of its investigation centers around its

assertion that S&F and its clients are or have been "fabricating and

presenting false and misleading documents which are then used on behalf of

the [firm's] clients in foreclosure cases" and that "such documents are being

presented in thousands of foreclosures per month in a scheme that has gone

on since at least 2005. S&F litigates foreclosures in the state on behalf of

RJCHMAN GREER. P.A.

Mlllmi • \Vesl Pabn Beach

9
 State of J I 'ida, Office of The Attorney General v. apiro & Fishman LLP
4th DCA Case No.: 4010-4526

loan servIcIng companIes and the OAG has received complaints that

documents filed on behalf of the fim1's clients have been fabricated.")

Petition, p. 2-3. While the face of the subpoena stated it was issued pursuant

to FDUTPA, it further identified the purpose and scope of the subpoena as

extending to "possible unfair and deceptive trade practices which involve the

advertising and marketing practices of [S&F].,,4 The arguments raised by

the OAG at the hearing and in its Petition attempted to change the clear and

unambiguous scope and purpose that is clearly set forth on the face of the

subpoena. There is nothing in the record by way of evidence or testimony -

other than the ~AG's press release - to support the ~AG's attempt to ignore

) This language tracks the language contained in the ~AG's August 10,2010
press release. Exh. 3, at Exh. B. The very issuance of that press release may
very well violate Rule 4-3.6(a) which instructs that a "lawyer shall not make
an extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication if the lawyer knows or
reasonably should know that it will have a substantial likelihood of
materially prejudicing an adjudicative proceeding due to its creation of an
imminent and substantial detrimental effect on that proceeding."

4 It is important to note that the Petitioner disclaimed as a "mistake" the

stated scope of the subpoena in its Petition and at the hearing below. Exh. 5,
at p.ll. As will be made clear below, the only way the subpoena could
arguably be valid and authorized under FDUTPA is if it were investigating
alleged violations in "trade or commerce" such as unfair or deceptive
"advertising and marketing practices" - which the OAG now admits it was
not!

RICHMAN GREER, P.A.

Mlllmle Wesc Palm Bead!

10
 State of 1 • 'ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4DI0-4526

the plain language contained within the four comers of its subpoena. Exh. 2.

As explained below, though FDUTPA has and is intended to have broad

application, its protections do not extend to the types of conduct complained

of by the OAG.

Trent v. Mortgage Electronic Registration Systems, Inc., 618

F.Supp.2d 1356, 1357 (M.D.Fla. 2007) was a putative class action filed

against MERS based on its actions in foreclosing upon mortgages in Florida.

The plaintiffs sought relief under both Florida's Consumer Collection

Practices Act (FCCPA) and FDUTPA. Plaintiffs alleged that MERS violated

FDUTPA by engaging in the unlicensed practice of law and using deceptive

means to collect debts on residential mortgage loans. Id. at 1358. The

allegations of the plaintiffs included claims that MERS' presuit demand

letters and representations violated FDUTP A and FCCPA. :NIERS raised

mUltiple grounds on which the complaint should be dismissed, including that

MERS did not engage in "trade or commerce" under FDUTPA. Id.

In determining that the alleged conduct of MERS did not constitute

deceptive acts or unfair trade practices, the court analyzed the meaning and

intent of "trade or commerce" as defined under the Act: "[A]dverti sing,

soliciting, providing, offering, or distributing, whether by sale, rental, or

RICHMAN GREER, P.A.

Mbunla West Palm Bead!

11
 State of1 ""ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

otherwise, of any good or service, or any property, whether tangible or

intangible, or any other article, commodity, or thing of value, wherever

situated." Id. at 1365. n.12 (quoting F.S. 501.203(8)). The court found that

under the plain language of the Act, MERS did not "advertise, solicit,

provide, or distribute" anything. [d. All MERS did was obtain a legal

interest in a note from third party lenders and proceed to foreclose on that

note. Thus, none of MERS' presuit communications with the putative

plaintiffs fell within the purview of "trade or commerce". [d.

In Kelly v. Palmer, Reifler & Assoc., P.A., 681 F.Supp.2d 1356

(S.D.Fla. 2010), relied on by the trial court below in quashing the ~AG's

subpoena, the court granted a law firm's motion for summary judgment on

FDUTPA claims asserted against it which arose from the firm's sending of

civil theft demand letters which, inter alia, threatened the filing of a lawsuit

if the demanded payments were not made. The court ruled in favor of the

law firm on two principle grounds: one, that the presuit demand letters were

absolutely privileged under Florida's litigation privilege;5 and two, that

5 Florida's absolute litigation privilege is addressed infra, at Point II.

RICHMAN GREER, P.A.

MllIml. Wat Paw Beach

12
 State of 1. • 'ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4D 10-4526

attorney conduct does not give rise to claims under FDUTPA. Id. at 1367-

71.

In addressing the FDUTPA claims, the court held that presuit demand

letters in which payment was demanded did not fall within the Act's

definition of "trade or commerce." [d. 1375-75. The Kelly plaintiffs

attempted to "bootstrap" their FDUTPA claims against the law firm by

alleging that the releases offered in exchange for payment of the alleged debt

constituted "'a thing of value' in exchange for money." Id. 1374. The court

rejected this argument and plaintiffs' reliance on Sweringen v. New York

State Dispute Resolution Annn. (NYSDRA), 2006 WL 2811825 (N.D.N.Y.

Sept. 28, 2006). In arriving at its conclusion, the court analyzed the stated

purpose of FDUTPA to "protect the consuming public and legitimate

business enterprises" from "unconscionable, deceptive, or unfair acts or

practices in the conduct of any trade or commerce." Id. at 1375 (emphasis in

original). The acts of the law firm which occurred during its exercise of a

legal remedy had "zero connection whatsoever to any 'trade or commerce.'"

Id.

Kelly is further instructive as to the scope of FDUTP A in its analysis

of the law of other jurisdictions with consumer protection statutes with

RICHMAN GREER, P.A.

MllIml • West Palm Beach
13
 State ofl . 'ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4D 10-4526

language very similar to that contained in the Act. See Dalesandro v. Longs

Drug Stores Cal., Inc., 383 F.Supp.2d 1244, 1250-51 (D. Hawaii

2005)(conduct in context of settlement and preparation for litigation is

distinct from "business context" and therefore defendant is not engaged in

"trade or commerce" within meaning of statute); Begelfer v. Najarian, 381

Mass. 177, 409 N.E.2d 167, 169-70 (SupJud.Ct.Mass. July 18,

1980)(lender's written demand for payment under promissory note that

allegedly violated usury law did not constitute unfair and deceptive act

entitling plaintiff to damages; exercise of contractual or legal remedies does

not constitute trade or commerce); Benvenuti Oil Co. v. Foss Consultants,

Inc., 2006 WL 328678 (Conn.Super.Ct. Jan. 25, 2006)(isolated act of

forgery to further claims in lawsuit did not take place in "business context"

and thus did not relate to the conduct of the business to bring it within the

scope of consumer protection act).

Based on the court's review of cases from other jurisdictions, Kelly

concluded that conduct undertaken in pursuit of legal remedies does not

constitute "trade or commerce" under the unfair trade practices acts of the

respective states. In Benvenuti, relied on in Kelly, the plaintiff asserted a

claim under the Connecticut Unfair Trade Practices Act. The alleged

RICHMAN GREER. P.A.

Miami- West Palm Bach

14
 State ofl . 'ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4D1 0-4526

wrongful conduct included defendant's forging of a signature onto an

agreement and then presenting that forged document in court to further its

claims. 2006 WL 328678 at *9. There, the relevant inquiry was not whether

the forgery or fraud could constitute an unfair or deceptive practice, but,

rather, whether the complained of act or practice occurred "in the conduct of

any trade or commerce." Id. The court noted that despite the stated intent

that the Act have broad application, it is nonetheless limited by the

requirement that the complained of conduct occur in the conduct of trade or

commerce.

In determining that the forgery did not occur in "trade or commerce",

the Benvenuti court considered the following facts:

the forgery and resulting fraud in this case took

place years after the plaintiff was induced into
enter into a business relationship with
[defendants]. The forged document was concocted
[not] 6 to entice the plaintiff corporation into
establishing a business relationship; it was an
attempt to lead a trial court to accept the
defendant's characterization of a business
relationship that had already been entered into and
was in fact terminated. Thus the courts and

6The undersigned believes that the word "not" must have been omitted from
the written opinion as the preceding sentence indicates that the forged
document was created after the business relationship was established and not
to induce the relationship.

RICHMAN GREER, P.A.

MllIml- West Palm Bach

15
 State of1 ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

plaintiff were misled in court proceedings not by

an act involving the initiation or carrying on of an
ongoing business relationship and directly
involved in such matters." (emphasis in original)

Id. at *10.

Benvenuti is particularly instructive as it relates to the OAG's claim

that S&F and its clients were engaged in "fabricating and presenting false

and misleading documents which are then used on behalf of the [firm's]

clients in foreclosure cases." Here, the OAG complains of alleged conduct

by S&F and its clients of the precise nature found not to constitute "trade or

commerce" by Benvenuti. Specifically, the OAG does not allege that

borrowers were defrauded into taking out mortgages or entering into lending

relationships through the use of false or fabricated documents; rather the

stated purpose of its investigation is its belief that that false and fabricated

documents were used to bolster the lenders' claims in connection with

foreclosure lawsuits commenced and prosecuted by S&F. Clearly, under no

interpretation of "trade or commerce" accepted by Florida's courts or in any

of the above noted jurisdictions, could the alleged fabrication of documents

which were then purportedly used to gain an unfair or even unlawful

advantage in a foreclosure proceeding fall within the ambit of "trade or

commerce" .

RICHMAN GREER. P.A.

MbmJ • West Palm Beach

16
 State of I ida, Office of The Attorney General v. apiro & Fishman LLP
4th DCA Case No.: 4D 10-4526

Finally, the trial court cited to Jamgochian v. Pro us alis, 2000 WL

1610750 (Del. Super. Aug. 31,2009) as persuasive authority that FDUTPA

does not extend to conduct of law firms, since that conduct is already subject

to regulation by the Supreme Court of Florida.

the very nature of the Act itself weighs heavily

against any inference that the General Assembly
intended it to apply to the conduct of attorneys in
their practice. The Consumer Fraud Act, while
nominally a "protective" enactment for the benefit
of consumers, has the effect of being a "punitive"
statute. This alone would not necessarily preclude
application to lawyers. After all, lawyers are
subject to the criminal code. However, the
disciplinary nature of this Act is specifically
targeted toward the conduct of a business
enterprise. The business of an attorney is his or her
practice.

The grant of authority to the Supreme Court calls

for attorneys to "behave themselves justly and
faithfully in their practice, and if they misbehave
themselves therein, they shall be subject to such
disciplinary measures as the Supreme Court, in its
discretion, may determine." 10 Del. C. § 1906
(Emphasis added.) In light of this language, it is
clear to this Court that lawyers, engaged in the
practice of law, are subject to discipline only by
the Supreme Court. Since the Supreme Court holds
at least a statutory monopoly over the discipline of
attorneys, had the General Assembly wished to
include attorney conduct under the Act's purview,
that body would have specifically inserted such

RICHMAN GREER. P.A.

Mll1ml. West PAlm Buch
17
«

State of1 • 'ida, Office of The Attorney General v.. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

language to override the provisions of 10 Del. C. §

1906. 7

Id. at *6.

In ordering the Subpoena quashed, the circuit court below ruled that it

would be a "constitutional absurdity" to conclude that the OAG has the

power to control attorneys under the guise of FDUTPA when that power is

unambiguously and exclusively granted to the Florida Supreme Court

pursuant to Article V of the Florida Constitution. Exh. 1, p.3. The court

further found that it was "confined to the four comers of the subpoena"

which stated that it was issued pursuant to authority granted by FDUTPA

and intended to investigate "unfair and deceptive practice which involve the

advertising and marketing practices of [S&F]." Exh. 1, p.S.

Accordingly, the OAG has no authority under FDUTPA to investigate

complaints against attorneys or law firms of alleged fabrication or use of

false documents in foreclosure proceedings as set forth in its Petition.

7 Regulates the admission of attorneys in Delaware.

RICHMAN GREER. P.A.

Milllnl- Wtst Pllim Beach

18
 State Ofl ida, Office of The Attorney General v. Jpiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

II. ABSOLUTE IMMUNITY IS AFFORDED TO ANY ACT

OCClTRRING DURING THE COURSE OF, OR
NECESSARIL Y PRELIMINARY TO, THE COURSE OF A
JUDICIAL PROCEEDING

As recently reaffinned by the Supreme Court of Florida in

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380,

383-84 (Fla. 2007), Florida's absolute litigation immunity is afforded to any

act occurring during, or necessarily preliminary to, a judicial proceeding, so

long as the act has some relation to the proceeding. Because the expressly

alleged misconduct sought to be investigated by the OAG was undertaken in

connection with a judicial proceeding, to wit, the alleged fabrication and

presentation of false and misleading docU111ents in foreclosure proceedings,

such acts are cloaked in absolute immunity.

In Echevarria, plaintiffs were property owners who defaulted on their

mortgages and sought class action status to pursue claims against law finns

engaged by their lenders to initiate foreclosure proceedings. [d. at 381.

Plaintiffs' claims included alleged violations of FCCPA and FDUTPA.

"The essence of the complaint was that the defendants acted unlawfully by

asserting a claim for a debt that was in excess of the actual costs their-clients

incurred during the foreclosure proceedings." [d. While the specific holding

RICHMAN GREER, P.A.

Miami. \Vest Palm Beach
19
• I •

State of1 ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

in Echevarria had the effect of confinning that the absolute litigation

privilege extended "across the board" to both common law and statutory

causes of action, the discussion of the privilege is applicable to the instant

Petition. Id. at 384.

The Echevarria court's analysis of the litigation privilege included a

review of the court's prior decision in Levin, Middlebrooks, Mabie, Thomas,

Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606 (Fla.

1994). The Levin court noted that Florida's absolute litigation privilege

originally extended to those defamatory statements made during the course

of a judicial proceeding. Levin, 639 So. 2d at 607, citing Fridovich v.

Fridovich, 598 So. 2d 65 (Fla. 1992). Thus the "torts of perjury, libel,

slander, defamation and similar proceedings that are based on statements

made in connection with a judicial proceeding are not actionable." Id. at

608, citing Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). This

immunity protects not only the parties to a judicial proceeding, but extends

to judges, witnesses and counsel. Id.

In Levin, the Supreme Court of Florida extended the "absolute

litigation privilege" to include those actions occurring during the course of a

judicial proceeding that might otherwise give rise to a claim for injury, such

RICHMAN GREER, P.A.

Miami- Wac Palm Bud!

20
, . ..
State of1 ida, Office of The Attorney General v. apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

as a claim for tortious interference with a business relationship. In the Levin

case, a plaintiff law firm alleged that the defendant had intentionally

interfered with the law firm's relationship with its client in bad faith by

maliciously taking steps to disqualify tIJ.e firm from representing its client in

pending litigation. Id. at 607. The court acknowledged that defamatory

statements made in the course of judicial proceedings, no matter how false

or malicious, have been traditionally deemed to be absolutely privileged. Id.

at 607. The Levin court further explained that the absolute protection

afforded to statements made during the course of a judicial proceeding is not

limited to defamation or tortious interference, but extends to any alleged

tortious conduct that relates to litigation:

In balancing pol.icy considerations, we find that

absolute immunity must be afforded to any act
occurring during the course of a judicial
proceeding, regardless of whether the act involves
a defamatory statement or other tortious behavior
such as the alleged misconduct at issue, so long as
the act has some relation to the proceeding. The
rationale behind the immunity afforded to
defamatory statements is equally applicable to
other misconduct occurring during the course of a
judicial proceeding~ Just as participants in
litigation must be free to engage in unhindered
communication, so too must those participants be
free to use their best judgment in prosecuting or
defending a lawsuit without fear of having to

RICHMAN GREER, P.A.

Miami. WISt him Beach
21
 State of1 ida, Office of The Attorney General v. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

defend their actions in a subsequent civil action for

misconduct.
[d. at 608 (emphasis added).

The Echevarria court expressly noted that it concluded its pnor

decision in Levin "by noting that adequate remedies still exist for

misconduct in a judicial proceeding, most notably the trial court's contempt

power as well as the disciplinary measures of the state court system and bar

association." Id. at 384.

Since Levin, Florida's courts have applied absolute immunity to

dismiss or grant judgments 011 the pleadings in many contexts. For example,

in Florida Evergreen Foliage v. E.!. Du Pont De Nemours & Co., 135 F.

Supp. 2d 1271 (S.D. Fla. 2001), the United States District Court for the

Southern District of Florida granted a motion for judgment on the pleadings

against claims of conspiracy, abuse of process, infliction of emotional

distress, tortious interference, and violations of FDUTPA. One of the claims

asserted by the Florida Evergreen plaintiffs was that the defendant "made

false statements in implementation of a scheme to defraud" the plaintiffs.

Jd. at 1276. There, the court granted the defendant's motion for judgment

on the pleadings and held that, "the acts allegedly committed by [defendant],

although perhaps egregious and damaging to Plaintiffs, are definitely related

RICHMAN GREER, P.A.

Miami- WesC Palm Beach
22
, ...

State of1 , ida. Office of The Attorney General v.. ..apiro & Fishman LLP
4th DCA Case No.: 4010-4526

to other judicial proceedings, and that [defendant] is therefore immune from

civil IiabiIity for its actions." Id. at 1283. In considering the Levin opinion

when arriving at its decision, the court in Florida Evergreen articulated that

the absolute litigation immunity "results from a balancing between the right

of an individual to enjoy a reputation unimpaired by defamatory attacks

versus the right of the public to a free and fuII disclosure of the facts in the

conduct of judicial proceedings, and the general finding that fear of chilling

the actions of participants in judicial proceedings and hampering the

adversary system outweighs the inability of some genuinely and injured

parties to seek relief." Id. at1279.

Similarly, in American National Title & Escrow of Florida, Inc. v.

Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 1999), this

Court affirmed a summary judgnlent entered against a plaintiff who sued an

attorney for abuse of process and extortion. The attorney's aIIeged

misconduct included prosecuting a claim for injunctive relief and procuring

the appointment of a receiver for the improper purpose of coercing the

payment of money. Id. at 1055. The plaintiff argued that the litigation

privilege extended only to publications or communications made during

litigation. Id. This Court rejected that argument and held that all acts taken

RICHMAN GREER, P.A.

MiamI. West Pllim Beach

23
 State ofJ • 'ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

during pending litigation that relate to the litigation, not merely to

statements made in the litigation, are afforded absolute immunity. Id.

at 1056. See also Ponzoli & Walsenburg, P.A. v. Zuckerman, 545 So. 2d

309 (Fla. 3d DCA 1989) (tortious claim of extortion based upon alleged

fraud and delaying tactics of counsel in course of litigation was improper

because conduct at issue was committed during course of judicial

proceeding and was therefore immune from civil liability).

More recently, in Boca Investors Group, Inc. v. Potash, 835 So. 2d

273 (Fla. 3d DCA 2002), the plaintiff complained that it was injured by the

defendants filing of several lawsuits that disrupted plaintiff s efforts to close

on the purchase of property. Id. at 274. The trial court granted judgment on

the pleadings to the defendants based on the absolute litigation privilege

articulated in Levin. Boca Investors made clear that even the filing of the

lawsuit is protected by the absolute litigation privilege and does not give rise

to a cause of action for any purported injury resulting therefrom.

While Levin addressed a claim for tortious interference as a result of

the filing of a lawsuit, its principle and privilege extends to any and all

harm purportedly caused by the filing of a lawsuit or any conduct

occurring during the course of that lawsuit. Levin held that:

RICHMAN GREER. P.A.

Miami- Wtst,Pabn Bead!
24
 State of1 ,'ida, Office of The Attorney General v.. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

Absolute immunity must be afforded to any act

occurring during the course of a judicial
proceeding, regardless of whether the act involves
a defamatory statement, or other tortious behavior
such as the alleged misconduct at issue, so long as
the act has some relation to the proceeding.

Boca Investors, 835 So. 2d at 274 (quoting Levin, 639 So. 2d at 608). This

"privilege arises upon the doing of any act necessarily preliminary to judicial

proceedings." Id. at 275 (quoting Burton v. Salzberg, 725 So. 2d 450, 451

(Fla. 3rd DCA 1999); Sailboat Key, Inc. v. Gardner, 378 So. 2d 47, 48 (Fla.

3rd DCA 1980)("Statements and allegations in pleadings are absolutely

privileged and cannot form the basis of a disparagement or slander of title

suit.")

In Rushing v. Bosse, 652 So. 2d 869 (Fla. 4th DCA 1995) this Court

affirmed the dismissal of a civil conspiracy count founded upon the alleged

violations of Florida Rule of Judicial Administration 2.060(d) that requires

the execution of pleadings. In addition to finding that the complained of

conduct did not provide the required independent wrong on which to base a

claim for civil conspiracy, this court held that the claim was also barred by

the absolute immunity established in Levin. The Rushing court held:

Additionally, absolute immunity would be

afforded to any conduct by defendants occurring
during the course of the adoption proceedings,

RICHMAN GREER, P.A.

Miami. West Palm Beu.h
25
 State of1 dda, Office of The Attorney General v..... tapiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

regardless of whether the conduct involved a

defamatory statement or other tortious behavior,
including a violation of rule 2.060(d) because
signing the petition for adoption and subsequent
documents required for the proceeding has some
relation to the adoption proceeding.

Id. at 876 (citing Levin).

Accordingly, to the extent that the OAG has commenced an

investigation under the purported authority of FDUTPA to determine if S&F

or its clients have fabricated and utilized false and misleading documents in

the course of a judicial foreclosure proceeding, those alleged acts are

absolutely privileged and not actionable. The only remedies available to

persons who claim to have been injured by such acts - if true - are claims

for malicious prosecution, or the initiation of complaints against the

offending lawyers and law firms with The Florida Bar. Based on the

foregoing, the Petition should be denied.

III. THE FLORIDA BAR HAS SOLE AND EXCLUSIVE

JURISDICTION OVER THE CONDUCT AND DISCIPLINE OF
LAWYERS AND, BY NECESSARY IMPLICATION, THE
FIRMS WITH WHICH THOSE ATTORNEYS PRACTICE

In its final point, the OAG maintains that The Florida Bar has no

jurisdiction to regulate or discipline law firms. Petition, p. 20. While in the

most technical sense this may be true, The Florida Bar is an official ann of

RICHMAN GREER, P.A.

Mlnml. West Palm Beadl

26
· ." ..
State of1 I 'ida, Office of The Attorney General v..... "apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

the Supreme Court of Florida and is charged with the duty of enforcing rules

regarding, inter alia, lawyer trust accounts, (Chapter 3), the unlicensed

practice of law (Chapter 10), and lawyer advertising (Chapter 15). The

Florida Bar regulates and disciplines law firms through the enforcement of

these rules against admitted lawyers, which necessarily includes disciplining

those lawyers for acts committed by the firm generally (such as a firm

advertisement that violates bar rules) or the acts of non-lawyers (such as

paralegals, secretaries, and other non-lawyer staff).

In quashing the ~AG's subpoena, the trial court specifically cited Fla.

Stats. §50 1.209, which specifically provides that,

If the enforcing authority receives a complaint or

other information relating to noncompliance with
this act by a person who is subject to other
supervision in this state, the enforcing authority
shall infom1 the official or agency having that
supervIsIon.

The Florida Constitution grants "exclusive jurisdiction" to the Florida

Supreme Court "to regulate the admission of persons to the practice of law

and the discipline of persons admitted." See Art. V, § 15, Fla. Const.

RICHMAN GREER, P.A.

Miami- West Paw Bach
27
 State of.. 'ida, Office of The Attorney General v. ,apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

Accordingly, and based upon the foregoing authorities, if the OAG

believes that S&F violated FDUTPA8, the Florida Supreme Court has the

exclusive jurisdiction to regulate and discipline attorneys in connection with

their provision of legal services, and The Florida Bar is charged with

investigating such complaints.

8 Assuming, arguendo, that the complained of actions even fall within

FDUTPA's definition of "trade or commerce." For the reasons stated above,
they do not.

RICHMAN GREER, P.A.

Miami- Wat P.lm Beach

28
.,
·...
• '!::'

State 0/1 . 'ida, Office 0/ The Attorney General v.. .apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

CONCLUSION

Based on the foregoing, Respondent respectfully requests that the

Petition be denied in all respects.

Respectfully submitted,

RICHMAN GREER, P.A.

Counsel for Respondent
250 Australian Avenue, South
One Clearlake Centre, Suite 1504
West Palm Beach, FL 33401-5016
Telephone: (561) 803-3500
Facsimile: (561) 820:~

BY:«1f.K~ -
GERALD F. RICHMAN
- '*

Florida Bar No. 066457

MICHAEL J. NAPOLEONE
Florida Bar No. 0147524
LEORA FREIRE
Florida Bar No. 013488

CERTIFICATE OF SERVICE
I HEREB Y CERTIFY that. a true and correct copy of the foregoing

Response to Petition for Certiorari was served via Facsimile and U.S. Mail
I?2r~
thi5U day of December, 2010 to Jason Vail, Assistant Attorney General,

Office of the Attorney General, PL-01, The Capitol, Tallahassee, FL 32399.

RICHMAN GREER, P.A.

Mlaml e West Pllim Beach

29
.....
-

State off·. _/ida, Office of The Attorney General v. .... •apiro & Fishman LLP
4th DCA Case No.: 4DIO-4526

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this motion has been printed in Times New

Roman 14-point proportionate type.

B~~ ICHAEL . NAPOLEQNE'

RICHMAN GREER, P.A.

Mlamle Wat Palm Belich

30