Fla. AG's subpoena quashed by appeals court

By Jessica M. Karmasek | May 2, 2011


WEST PALM BEACH, Fla. (Legal Newsline) - Florida's Fourth District Court of Appeals says a trial court was correct in quashing a civil investigative subpoena issued by the state Attorney General's Office on a Boca Raton-based law firm.

The appeals court wrote Wednesday in its six-page opinion that the trial court "did not err" since the office's investigative subpoena -- issued exclusively under the statutory authority of Florida's Deceptive and Unfair Trade Practices Act -- was issued to investigate actions of the Shapiro & Fishman LLP law firm not covered under the rubric of "trade or commerce" as required by the statute.

Judge Spencer D. Levine wrote the appeals court's opinion.

On Aug. 6, the Attorney General's Office -- at the time occupied by Bill McCollum and now held by Pam Bondi -- issued a civil investigative subpoena to Shapiro & Fishman, a law firm that provides legal services in foreclosure cases.

The subpoena sought production of documents related to 13 different subjects involving the law firm's representation of lending institutions in foreclosure cases.

The subpoena sought information on any corporations, companies, partnerships or associations in which the law firm and the named partners had any interest. It also asked for the names of all servicing companies the firm had represented in the past five years; all non-disclosure agreements the firm executed in the past five years with employees, subcontractors and independent contractors; copies of checks or evidence of other payment from plaintiffs represented in foreclosure cases by the firm; and documents on the amount paid to the firm's employees, subcontractors and independent contractors for completion of foreclosure cases within a certain time period.

It stated, "The general purpose and scope of this investigation extends to possible unfair and deceptive trade practices which involve the advertising and marketing practices of the above named recipient (the Shapiro Firm)."

"Nowhere in the subpoena, however, did the Attorney General include a specific request for information related to the law firm's advertising or marketing practices," the appeals court noted.

The law firm subsequently filed a petition to quash the subpoena. The attorney general filed a response to the motion to quash and alleged that the subpoena was a response to complaints alleging that the law firm had been fabricating or presenting false or misleading documents for utilization in foreclosure cases.

The trial court held a hearing and quashed the subpoena. The Attorney General's Office appealed.

"The Office of the Attorney General's subpoena centers on the law firm's conduct in the processing of foreclosure cases, as opposed to the initial applications for mortgages or the initial lending relationships, which would be more akin to traditional notions of 'trade or commerce' as defined by the FDUTPA statute," the appeals court wrote.

The Attorney General's Office argued at the trial court hearing that this particular subpoena could be utilized since it was merely "gathering evidence."

But the trial court didn't buy the office's argument, and neither did the appeals court.

"Although that is unquestionably true for all investigative subpoenas, there still has to be statutory basis for the issuance of a subpoena that is moored to a particular statute, that being FDUTPA in this case," it wrote.

"We are compelled to require that the subpoena issued pursuant to a specific statute be connected to that particular statute."

Since it found that the attorney general failed to establish that the object of the civil subpoena was connected to trade or commerce, the appeals court said it need not address the other issues raised by the office.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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