Friday, May 14, 2010
The Florida Supreme Court has affirmed the dismissal of two class actions brought against Merrill Lynch Credit Corporation that sought return of document preparation fees on a theory that the corporation had engaged in the unauthorized practice of law. The court majority concluded that it had exclusive authority to regulate the unauthorized practice of law. While Florida statutes allow a private litigant to recover fees for legal services paid to non-lawyers, the plaintiffs here had failed to identify and plead facts sufficient to establish unauthorized practice by Merrill Lynch. This element may be proven by a prior court injunction or controlling opinion that the conduct at issue crossed the line.
Justice Canady dissented: "Neither the majority nor the respondents have identified any precedent in any other area of the law for the assertion of what amounts to exclusive issue-of-first-impression jurisdiction...I would quash the decision [below] and remand for further proceedings on the merits of the plaintiffs' claim of unauthorized practice." (Mike Frisch)