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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5579" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2021/12/Timeshare-300x200.jpg" alt="" width="300" height="200">Can violating a legal ethics rule qualify as an unfair trade practice under a state&rsquo;s consumer protection statute?&nbsp; A Florida district court recently said &ldquo;Yes.&rdquo; The question arose in motion practice over the admissibility of expert testimony in a timeshare-exit case.
And then there was one
A group of entities connected to Wyndham Vacation Resorts sued several defendants for inducing and assisting timeshare owners to get out of their contracts with Wyndham &ndash; including the lawyer the defendants used to review documents and send letters on behalf of timeshare owners who wanted out of their obligations. &nbsp;All the claims settled except the ones against the lawyer, including claims that he had conspired to interfere with the timeshare owners&rsquo; contracts with Wyndham, and that he violated the Sunshine State&rsquo;s <a href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&amp;Search_String=&amp;URL=0500-0599/0501/0501PARTIIContentsIndex.html">unfair trade practices Act</a>.&nbsp; According to the court&rsquo;s <a href="https://filehost.thompsonhine.com/uploads/Sussman_order_on_expert_admission_6a13.pdf">opinion</a>, the lawyer was licensed in California, not Florida.
Wyndham sought to have a legal ethics expert testify on issues supporting its unfair trade practices claim&mdash;specifically that the lawyer&rsquo;s violation of several ethics rules met the definition of unfair and deceptive trade practices under Florida law. The expert&rsquo;s opinion centered on the lawyer&rsquo;s noncompliance with the rules of professional conduct, including Florida&rsquo;s versions of the Model Rules on <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer/">fee sharing practices</a>, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_4_professional_independence_of_a_lawyer/">interference by non-lawyers with the professional judgment of lawyers</a>, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibilities_regarding_nonlawyer_assistant/">supervision of non-lawyers</a> and the <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law/">unauthorized practice of law</a>.
The lawyer moved to exclude Wyndham&rsquo;s expert&rsquo;s opinions, arguing that any supposed violation of Florida&rsquo;s professional conduct rules was irrelevant to the claims against him, particularly the unfair trade practices act claim, and that ethical misconduct could not support such a claim.
Ethics and trade practices
The district court rejected the lawyer&rsquo;s motion to exclude the expert&rsquo;s opinions and held that &ldquo;a violation of a legal ethics rule can potentially qualify as a deceptive act or unfair trade practice&rdquo; under Florida&rsquo;s act.&nbsp; The court noted the statute&rsquo;s liberal construction, and that under it a claim could be based on any rule or regulation that &ldquo;proscribes ... deceptive or unconscionable acts or practices.&rdquo;
Further, the court said, while the preamble to the Florida rules notes that they don&rsquo;t give rise to an independent cause of action against a lawyer, they do establish &ldquo;standards of conduct by lawyers [; therefore] a lawyer&rsquo;s violation of a rule may be evidence of a breach of the applicable standard of conduct.&rdquo;&nbsp; The Model Rules of Professional Conduct express the same idea in the <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope/">Preamble</a> at [20].
Here, said the court, Wyndham was not trying to assert a claim for violating the ethics rules, but to use evidence that the lawyer had committed ethical misconduct to support the unfair trade practices claim.&nbsp; That was legitimate, the court held.
Time to share
While the court cited a <a href="https://case-law.vlex.com/vid/699-2d-964-conn-633441797">Connecticut</a> supreme court case as support for its holding,&nbsp;<a href="https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=&amp;httpsredir=1&amp;article=1380&amp;context=mulr">commentators</a> have noted that the states have taken a variety of positions on whether and how deceptive trade practice and consumer protection acts apply to lawyer conduct. &nbsp; Ultimately, the court <a href="https://filehost.thompsonhine.com/uploads/Wyndham_dismissal_order_4aee.pdf">dismissed</a> the case with prejudice on November 23, following a settlement. &nbsp;However, the take-home here is that the ethics rules can supply the standard of conduct for tort and statutory claims even outside the lawyer discipline rubric.&nbsp; All jurisdictions now have some version of the Model Rules of Professional Conduct, and therefore your rules likely contain language to this effect.&nbsp; Thus, your future noncompliance with the Rules of Professional Conduct may not only be scrutinized by discipline authorities, but by a jury as well.

core/freeform

Ethics

Assistant Counsel

Amy G. McClurg

Legal Ethics, Professional Responsibility and the Business of Law

Ethics rule violation relevant to trade practice claim against lawyer, FL district court rules