Posted on Monday, October 18, 2010
Commentary by Andrew Berman
Daily Business Review
When he quashed a subpoena Florida Attorney General Bill McCollum issued against a law firm, effectively blocking an investigation into its foreclosure practices. In doing so, he called this effort to usurp the Florida Supreme Court's exclusive function to regulate and discipline lawyers a "constitutional absurdity."
Judge Cox is right.
To the untrained eye, the result may seem absurd, particularly in the wake of the recent downfalls of several once-prominent but now notorious South Florida lawyers who engaged in blatant criminal activity. It confirms many popular but ill-informed perceptions about how judges — who, in Florida, are lawyers — protect lawyers. Yet this case involves far more than a legal technicality. It is a constitutional issue and a matter of principle. The attorney general attempted an end run around the separation of power doctrine by investigating the lawyers and the Boca Raton firm of Shapiro & Fishman on a pretext of violations of Florida's Deceptive and Unfair Trade Practices Act, a civil consumer protection statute. The attorney general was investigating whether the law firm was speeding up foreclosures on behalf of lenders based upon fabricated or fraudulent documents. No charges have been filed against Shapiro & Fishman or any of the other firms involved in the probe.
From the outset, the attorney general misidentified the consumer of legal services. As Shapiro & Fishman pointed out in its motion, the consumer in this case is the law firm's client (the lender), not the homeowner in a foreclosure action. Thus, the attorney general was attempting to investigate — for the protection of the law firm's own clients — the firm's handling of litigation, which can only be performed by licensed attorneys. And he sought to do so under the guise of consumer protection provisions that contain no criminal penalties, but only civil remedies. That was his error.
The Florida Constitution provides the Florida Supreme Court with exclusive jurisdiction over the admission and discipline of lawyers. That does not mean that state and U.S. attorneys have no authority to investigate and prosecute criminal conduct of lawyers. They do and have indicted and convicted many lawyers for criminal misconduct in the practice of law and will continue to do so even after Judge Cox's decision. In fact, it is not uncommon for The Florida Bar to refer matters concerning lawyers under investigation pursuant to the Supreme Court's exclusive jurisdiction to criminal investigative authorities. Further, judges in individual cases have complete authority to sanction lawyer misconduct.
But there is a stark difference between investigating and prosecuting criminal conduct and investigating what amounts to misconduct in the practice of law, no matter how egregious, under a consumer protection statute that affords only civil remedies. Nothing is stopping the attorney general from formulating another pretext for his investigation that would not run afoul of the separation of powers.
Simply put, the attorney general overstepped his constitutional boundaries by initiating what amounts to a civil investigation of lawyers. That is for the Supreme Court and The Florida Bar. Despite frequent derision by uninformed legislators and commentators, both by and large do a much better job regulating and disciplining lawyers than does the Florida Department of Business and Professional Regulation in governing conduct of other professionals.
Other states have, on occasion, permitted attorneys general to investigate and regulate lawyer conduct under consumer protection statutes, but typically limit even that oversight to what they call "the entrepreneurial aspects of the practice of law," such as lawyer advertising and overbilling. Rarely, if ever, would a court in a state with a constitutional separation-of-powers provision similar to Florida's sanction an investigation of the very essence of the practice of law — as contrasted with the business aspects — under a consumer protection statute.
In short, no one should be concerned that these lawyers will get away with deliberate or reckless misconduct in connection with their handling of foreclosures, if so determined, because of Judge Cox's decision. If the lawyers engaged in misconduct, The Florida Bar, pursuant to powers granted it by the Supreme Court, judges in individual cases, and criminal authorities clearly have the power and incentive to investigate, prosecute and sanction or discipline the behavior. However, since we are a nation of laws, no branch of government is permitted to act without power. The attorney general's actions, no matter how well-intentioned, appear to have exceeded his office's power.
The core issue at work is whether the separation of powers doctrine should be scrapped. The attorney general obviously thinks so. The law as it now exists — and always should exist — says it should not. In calling the attorney general's gambit in trying to eliminate the doctrine a "constitutional absurdity," Judge Cox remained true to the rule of law. It is comforting that there are judges across the state, like Judge Cox, who are willing to reel in even the highest-ranking lawyer when he oversteps his bounds.
The system works.
Andrew Berman, a shareholder in the Miami office of the law firm Young Berman Karpf & Gonzalez, focuses his practice on complex litigation, appeals, legal ethics and professional responsibility, and health-care law.