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The Florida Supreme Court has rejected an advisory opinion that had concluded that an out-of-state attorney did not engage in unauthorized practice.

The scenario

Petitioners Scharrer and THMI, and FAS and its in-house counsel, Christine Zack (an attorney not licensed to practice law in Florida), have been, and continue to be, involved in lawsuits in several jurisdictions, with potentially significant sums of money at issue. As is relevant here, Petitioners brought a suit against FAS and Ms. Zack in the United States District Court for the Middle District of Florida. The suit alleged that FAS and Zack provided administrative support services to FAS’s client, THMI, and served as a “litigation liaison” between THMI and the Florida lawyers hired to represent THMI in several wrongful death cases brought against the company in Florida. Petitioners further alleged that FAS’s and Zack’s substantial involvement in the wrongful death cases constituted the tort of the unlicensed practice of law.

The Standing Committee on the Unlicensed Practice of Law had advised

The Standing Committee consolidated these questions into a single issue:

Whether a nonlawyer company engages in the unlicensed practice of law in Florida when the nonlawyer company or its in-house counsel, who is not licensed to practice law in Florida, controls, directs, and manages Florida litigation on behalf of the nonlawyer company’s third-party customers when the control, direction, and management is directed to a member of The Florida Bar who is representing the customer in the litigation?

The proposed advisory opinion answers this question in the negative, finding that, generally speaking, it does not constitute the unlicensed practice of law for a nonlawyer company or its in-house counsel (who is not licensed in Florida) to control, direct, and manage Florida litigation on behalf of the nonlawyer company’s third party customers when the control, direction, and management is directed to a member of The Florida Bar who is representing the customer in litigation. However, the Standing Committee also concluded that, while generally such conduct is not the unlicensed practice of law, there are circumstances where the opposite may be true, and the activity of the nonlawyer company or its in-house counsel could constitute unlicensed practice. The answer would be dependent on the level of involvement of the Florida lawyer versus the level of involvement of the nonlawyer.

The court

In this instance, we conclude that Petitioners’ request for an advisory opinion did not allege the type of specific facts that, if assumed true, the Standing Committee could use to evaluate whether FAS and Zack engaged in the unlicensed practice of law. The Standing Committee then consolidated Petitioners’ six questions into a single and more general question. As a result, we conclude that the proposed advisory opinion does not adhere to the process the Court established in Goldberg, in that it does not offer meaningful guidance as to whether the specified conduct at issue would constitute the unlicensed practice of law. Accordingly, we disapprove the advisory opinion; however, our decision is without prejudice to Petitioners submitting a revised petition for an advisory opinion, and to the Standing Committee conducting further proceedings consistent with our opinion in this case.

Justice Canady dissented

In this proceeding, we are asked to give an advisory opinion concerning a matter that is the subject of litigation. I would dismiss the case on the ground that the Florida Constitution gives this Court no authority to issue such an advisory opinion.

(Mike Frisch)