December 25, 2005
Is the Florida Attorney General a Spammer?
By Eric Goldman
"Charlie Crist was a staunch defender of a tough anti-spam law passed by the state legislature last year [but] Crist, a Republican gubernatorial candidate, had annoyed some residents of the state by sending them unwanted e-mails promoting his candidacy and soliciting campaign donations."
Crist's spokesperson stated: "This is not spam. This is truthful, it's straight forward. We're honest. To be spam it has to be, under Florida law, defined as being deceptive."
I love this legal double-speak textualist response. Deceptive email is spam, but unsolicited email to constituents is good politics. It's good that Crist is savvy enough about his constituents' attitudes towards spam to know the difference.
Posted by Eric at December 25, 2005 11:37 PM | Spam
Obviously the Florida A-G is a spammer. Every lawyer knows that words are to be treated according to their ordinary English meaning unless in a document that defines otherwise or where the context requires some other meaning. The ordinary English meaning of "spam" is "an electronic message (usually email) that is sent in bulk to people who have not requested it."
Of course his claim that his email is truthful and straight-forward is, like any claim in a political context, to be treated with suspicion.
Now it might be true to say that "To be spam under Florida Law it has to be deceptive", but what he said was "To be spam it has to be, under Florida law, defined as being deceptive" - an entirely nonsensical proposition. Firstly, I doubt there is any Florida law that regulates the ordinary English meaning of spam, and failing the establishment of an Orwellian state there is unlikely to be any such law. Secondly I would surprised to find any law that defines particular messages as being "deceptive" - deception is a conclusion drawn from the facts. Finally, such a law would be unlikely to bind anybody outside of Florida since there is it seems unlikely Florida could show any jurisdictional nexus.
Yes, I did spend the last paragraph picking apart his sloppy use of the language, but a competent lawyer always endeavours to use language precisely. If, as an A-G, he lacks this basic skill required of lawyers, it seems unrealistic to expect him to be competent in any other high office.
(By the way, as a law blog, it would be nice if comments allowed some level of markup or at least basic formatting tools so that we can be as precise as we ought to).
TALLAHASSEE, FLA---Florida Attorney General Charlie Crist was elected Florida's first Republican Attorney General in 2002 and is currently a gubernatorial candidate for 2006. Crist has been asked for his views on what appears to be his office's selective enforcement of Florida's Deceptive and Unfair Trade Practices Act where politically well-connected law firms are concerned.
A Jan. 24, 2006 article on theledger.com reports that the Office of Florida Attorney General Crist recently sued a Florida corporation and its officers for improperly selling confidential cell phone and telephone records through its Internet sites. The lawsuit reportedly accuses the corporation of providing customers with confidential telephone calling records of unsuspecting consumers in violation of Florida's Unfair and Deceptive Practices Act and civil conspiracy laws.
Crist previously announced on Dec. 6, 2005 that his office sued two Palm Beach County men for unfair and deceptive trade practices stemming from allegations that their cabinet and countertop business took customers' deposits but failed to provide the requested items. Crist's complaint alleges the two men never delivered promised services. Affidavits from consumers reportedly reflect that victims were cheated out of more than $175,000 in deposits. Crist's office reportedly maintains the two Palm Beach County men are being sued under Florida's Deceptive and Unfair Trade Practices Act, which allows a penalty of $10,000 per violation, or $15,000 if the victim is a senior citizen or disabled adult.
In sharp contrast, Crist’s office failed to even investigate reports of a well-connected law firm's widescale misappropriation of its clients' funds. Attorney Jeffrey R. Hill was employed by the Jacksonville law firm FARAH, FARAH & ABBOTT, P.A. (a/k/a The Law Offices of Eddie Farah) in 2004 when he discovered, “The firm was frequently 'padding' costs charged to personal injury clients by $300 or more per case and had been doing so for several years. It overcharged hundreds of unsuspecting clients … and the combined misappropriated funds are estimated at several hundred thousand dollars.”
The law firm practiced as a professional association ("P.A."), an authorized business entity under The Rules Regulating The Florida Bar. Florida Bar Rule 4-8.6(a) specifically provides, "Authorized Business Entities. Lawyers may practice law in the form of professional service corporations, professional limited liability companies, sole proprietorships, general partnerships, or limited liability partnerships organized or qualified under applicable law. Such forms of practice are authorized business entities under these rules."
According to Hill, "There are many reasons attorneys choose to form professional associations for their legal practices. The owners of a professional association are called shareholders and ordinarily do not have personal liability for liabilities that arise in the ordinary course of business or from the malpractice of other attorneys at the law firm. This is one of the major benefits of operating a law practice as a professional association."
Hill's Jan. 10, 2005 letter to Crist’s office reported the law firm’s repeated acts of consumer theft/fraud in the years 2002 through 2004. That letter included supporting documentation from ten cases in which the firm grossly overcharged clients. Hill’s letter emphasized, “Given the frequency and duration of [the firm’s] overcharging practice, many clients and considerable sums of money are involved in these matters." Crist’s office responded by letter dated Jan. 24, 2005, simply identifying The Florida Bar as the agency responsible for reviewing grievances against Florida lawyers.
Hill knows of no legal authority exempting law firms operating as professional associations from being investigated and, if appropriate, prosecuted under Florida's Deceptive and Unfair Trade Practices Act. He had already reported his concerns over the firm's illicit overcharging practices to The Florida Bar by letter dated Sept. 28, 2004 to Donald M. Spangler, Esq., Chief Branch Discipline Counsel. That letter also included documentation of The Law Offices of Eddie Farah's overcharging practices.
To Hill's surprise, a full year went by with no contact from any representatives of The Florida Bar to investigate his report of widescale fraud and misappropriation of clients' funds by The Law Offices of Eddie Farah. Not a single inquiry from The Florida Bar by letter, email or telephone.
When Hill followed up with The Florida Bar in late 2005, he received a rather succinct Oct. 27, 2005 email from Spangler stating, "The file to which you refer was closed. The grievance committee considered the matter after investigation and an audit by the Bar Staff Auditor, and found there was no probable cause to pursue disciplinary proceedings. They did elect to send a letter of advice to the firm."
According to The Florida Bar's web site, "The Florida Bar has an important role in the regulation of lawyer misconduct. A complaint of unprofessional conduct against a Florida Bar member is a serious matter. The processing and investigation of inquiries and complaints are a basic responsibility of the Bar as mandated by the Florida Supreme Court. The Bar seeks to protect the public from unethical lawyers."
Hill finds it difficult to fathom how The Florida Bar's grievance committee could reach an informed decision concerning probable cause to pursue disciplinary proceedings without ever even contacting him as part of its 'investigation'. Despite the egregiousness of the reported misconduct, he received no inquiries whatsoever from any Bar investigators by letter, telephone or email.
Questioning the thoroughness of the grievance committee's investigation and audit by the staff auditor, Hill sent a public records request to The Florida Bar for its complete file. It was only after repeated follow up requests that the Bar finally complied and produced the records. Unfortunately, the records produced offer no clues as to the basis for the grievance committee's seemingly unsupported finding of no probable cause for disciplinary proceedings. There are no indications of Bar investigators contacting any of the witnesses identified by Hill. Even the grievance committee's Nov. 8, 2005 Notice of No Probable Cause and Letter of Advice fails to explain the basis for its finding.
It is undisputed The Law Offices of Eddie Farah overcharged clients by substantial sums. Attorney John A. Weiss, Esq. of Tallahassee represented the firm's principals, attorneys and brothers Eddie and Chuck Farah, before the Bar. Weiss admitted the firm's overcharges in a Sept. 22, 2005 letter to The Bar stating,
"As an aside, I would advise you that the firm has refunded in excess of $120,000.00 ... to those clients who were inadvertently overcharged for costs. Approximately $10,000.00 remains undisbursed because the firm, and the private investigator it subsequently hired, could not find the individuals."
Hill observes, "That certainly sounds like a lot of money to be 'inadvertently' overcharged. The firm would have to overcharge 400 clients by $300 each to reach $120,000."
Even The Florida Bar's own audit of the firm's trust account confirmed $130,000 in overcharges and a lack of substantial compliance with Bar rules governing trust acounts in the years 2002 through 2004.
According to a Jan. 6, 2006 letter Hill received from Spangler, "The Florida Bar cannot impose disciplinary action against a law firm, only against individual lawyers."
Hill emphasizes, "This is just one case demonstrating the dangerous loophole unscrupulous legal practitioners can exploit to the public’s detriment. If law firms aren't subject to disciplinary action by The Florida Bar, why won't Attorney General Crist investigate a professional assocation's documented overcharging practices under Florida's Deceptive and Unfair Trade Practices Act? Is it because the professional association in question just happens to be a politically well-connected law firm rather than some other business?"
Hill's often asked whether cronyism explains the conundrum. "While I'd prefer to believe cronyism did not play a role," he says, "I've seen nothing suggesting any other logical explanations."
It's been over a year since Hill reported The Law Offices of Eddie Farah's overcharging practices to The Florida Bar and Attorney General Charlie Crist. Someone must be responsible for protecting clients defrauded by law firms and the public needs to know who that is. If it's not The Florida Bar or Attorney General Crist, who the heck is it?"
Selective enforcement of Florida's Deceptive and Unfair Trade Practices Act when well-connected law firms are involved is gaining increasing attention this election year. By email dated Jan. 28, 2006, Hill asked Crist to explain for voters what his office's position is concerning this issue.
Posted by: Jeff Hill at February 1, 2006 04:17 PM