Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

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.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-full wp-image-2600" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/06/Florida-bar.jpg" alt="Florida bar" width="259" height="250">In a somewhat puzzling <a href="http://filehost.thompsonhine.com/uploads/Hydentra_v._Constantin_7be8.pdf">ruling </a>handed down on May 25, a Florida district court judge held that&nbsp;the court lacked jurisdiction to address whether&nbsp;a Massachusetts lawyer who appeared on behalf of his defendant client at a Florida mediation was engaging in the unauthorized practice of law.
As <a href="http://www.law360.com/articles/800535/mass-atty-in-porn-cos-ip-fight-dodges-sanctions">reported by Law360 </a>(subs. req.), the plaintiff, which runs an adult subscription service, is suing defendant Sun Social and others&nbsp;for allegedly hosting pirated content on their internet porn sites.
No jurisdiction, no sanctions
At&nbsp;the&nbsp;mediation, Sun Social appeared through its Massachusetts counsel, who had not yet sought pro hac vice admission.&nbsp; Only after the parties reached an impasse did the plaintiff object to the Massachusetts lawyer&rsquo;s participation.&nbsp; The plaintiff charged the lawyer with unauthorized practice and sought&nbsp;sanctions, including disqualification.
The district court held that it could not address whether the lawyer&rsquo;s conduct was UPL, because the Florida Constitution vests the state supreme court &ldquo;with exclusive jurisdiction over ... the prohibition of practice&nbsp;by persons not members of the Florida Bar,&rdquo; and case law interpreting the provision delegates the determination of UPL solely &ldquo;to the Florida Bar.&rdquo;
The federal court judge denied the sanctions motion, ruling that &ldquo;only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law,&rdquo; and&nbsp;noting that the lawyer had since sought and obtained pro hac vice admission.
Really without teeth?
The court seems to have reached the right outcome here, but for the wrong reason &mdash; and in&nbsp;holding that it was required to be agnostic on the&nbsp;issue of UPL, the court took a too-narrow view of its power to remedy future conduct that it might be presented with.
First, Rule 4-5.5 of the Florida Rules of Professional Conduct, like its <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_5_unauthorized_practice_of_law_multijurisdictional_practice_of_law.html">Model Rule </a>analog,&nbsp;creates some limited circumstances permitting&nbsp;lawyers admitted elsewhere to practice temporarily in Florida &mdash; including&nbsp;in &ldquo;pending or potential&rdquo; ADR proceedings like&nbsp;mediations (if the services arise out of or are reasonably related to the lawyer&rsquo;s practice in his or her home jurisdiction).&nbsp;&nbsp;And second, the Southern District of Florida&rsquo;s own <a href="https://www.flsd.uscourts.gov/sites/flsd/files/2019LocalRulesEffective12-2-2019-FINAL.pdf">Local Rule 11.1</a> incorporates the Rules of Professional Conduct as&nbsp;standards and provides that for violating those rules, &ldquo;attorneys may be subject to appropriate disciplinary action,&rdquo; including under the court&rsquo;s own Rules Governing Attorney Discipline.
If the district court lacks authority to sanction lawyers who sail outside the limited safe harbor of Rule 5.5&rsquo;s temporary-practice provision, that limitation does not appear in the court&rsquo;s local rules.&nbsp; Indeed, it would appear to run counter to the court&rsquo;s power to manage the proceedings before it.
&ldquo;Immature and unprofessional mudslinging&rdquo;
It is possible that the court was reflecting its impatience with the parties, which, the judge wrote, had engaged in &ldquo;immature and unprofessional mudslinging.&rdquo;&nbsp; And after all, the Massachusetts lawyer had (after &ldquo;blatantly drag[ging] his feet&rdquo;) finally obtained the court&rsquo;s permission to appear.&nbsp; But in any event, the implication that the district court would be hamstrung in dealing with ethical misconduct constituting the unauthorized practice of law is unfortunate.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Florida district court rules it lacks jurisdiction to determine unauthorized practice charge