IN THE SUPREME COURT OF FLORIDA (Before a Referee)

Transcription

1 THE FLORIDA BAR, IN THE SUPREME COURT OF FLORIDA (Before a Referee) Petitioner, v. CASE NO.: SC The Florida Bar File No.: (04) LIDYA N. GOLDSTEIN, Individually and d/b/a/ ADVOCARE LEGAL FIRM, Respondent. / REPORT OF THE REFEREE I. SUMMARY OF PROCEEDINGS Pursuant to the undersigned being duly appointed as Referee to conduct proceedings herein according to Rule (b)(6), Rules Regulating The Florida Bar, the following proceedings occurred: On October 15, 2008, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against Respondent Lidya N. Goldstein Individually and d/b/a Advocare Legal Firm. On October 15, 2008, the Supreme Court of Florida entered an Order to Show Cause directing Respondent to file an Answer to the Petition. Respondent filed an Answer to Petition, Affirmative Defenses and Request for Dismissal of Petition on December 11,

2 On February 5, 2009, Petitioner filed a Response to Respondent s Affirmative Defenses and Request for Dismissal of Petition. Petitioner further requested the appointment of a referee. On February 24, 2009, Petitioner filed a Motion for Summary Judgment. On May 29, 2009, the Supreme Court ordered the Chief Judge of the Fourth Judicial Circuit of Florida to appoint a Referee to conduct the case. The Chief Judge of this Court appointed the undersigned on June 9, On July 8, 2009, the undersigned Referee issued an Order setting a telephonic case management conference for July 24, The undersigned Referee held a telephonic Case Management Conference on July 24, Respondent did not appear. Based on the findings of the Bar Staff Investigator and Bar Counsel, Petitioner advised the Court that Respondent had temporarily relocated to an address in Miami, Florida. On July 27, 2009, Referee rescheduled the Case Management Conference for August 19, Respondent was properly noticed and/or served with Order Re-Setting Telephonic Case Management Conference, but again failed to appear. On August 19, 2009, the undersigned Referee set trial for September 16, 2009, at the Duval County Courthouse. 2

3 The trial was held on September 16, 2009, as scheduled. Monica Armster Rainge, Esquire, appeared for The Florida Bar, and Respondent Lidya Goldstein did not appear. The undersigned Referee considered all of the aforementioned pleadings, attachments thereto, Respondent s sworn statement, supporting affidavits from The Florida Bar Membership Records Custodian, Willie Mae Shepherd and Stephen Silkowski and other exhibits received in evidence. At the conclusion of the evidence presented by the Petitioner, the Referee requested that the Petitioner submit a proposed Report of Referee. The Referee has received and carefully considered the proposed report. All of the aforementioned pleadings and attachments constitute the record in this case and are being forwarded to the Supreme Court of Florida. II. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. Jurisdictional Statement: Respondent, at all times material herein, was not and is not a member of The Florida Bar, and was not therefore licensed to engage in the practice of law in the State of Florida. B. Narrative Summary of Case: Petitioner s complaint contains one count of unlicensed practice of law. Count I asserts that Respondent, Lidya N. Goldstein, held herself out as 3

4 capable of providing legal services through Advocare Legal Firm. In or about November 2007, Respondent Goldstein learned of several verbal incidents involving her friend, June Sanderson and Phillip Rosenfeld, an employee at a Burger King in Miami, Florida. Respondent offered to provide legal services by assisting Ms. Sanderson in resolving the matter. On December 13, 2007, Respondent Goldstein sent a demand letter on behalf of June Sanderson to Sheila M. Cesarano, Counsel for the Burger King Corporation. Respondent Goldstein s letter stated that Ms. Sanderson was a client of the Advocare Legal Firm and demanded that the Burger King Corporation resolve the issues or face the possibility of a class action lawsuit. Respondent Goldstein signed the demand letter as a legal practitioner on behalf of Stephen E. Silkowski, a Florida attorney. Ms. Cesarano contacted Mr. Silkowski and determined that he was completely unaware of Respondent s use of his name in connection with the matter. Mr. Silkowski stated that he hired Respondent Goldstein to work as a contract paralegal in or about During this time, Respondent Goldstein worked as a freelance paralegal with several attorneys. The work arrangement did not work out and Mr. Silkowski subsequently terminated the relationship after a few months. 4

5 Mr. Silkowski further stated that he met June Sanderson in or about 2005 through Respondent Goldstein. Ms. Sanderson needed an attorney to represent her in the purchase of a condo. Mr. Silkowski represented Ms. Sanderson in the negotiations. The deal subsequently fell through and Ms. Sanderson terminated his service. Mr. Silkowski has not represented Ms. Sanderson in any legal matter or spoken to her since Mr. Silkowski asserted that he had no knowledge of the business activities of Respondent or Advocare Legal Firm and he has not supervised any activities of Respondent since C. Findings of Fact and Conclusions of Law: In regard to the count described above, the Referee makes the following findings of fact and conclusions of law: COUNT I The Referee finds that Respondent Goldstein held herself out as capable of providing legal services through Advocare Legal Firm. Respondent Goldstein provided legal representation to June Sanderson in a legal matter and attempted to settle a dispute on behalf of Ms. Sanderson. In Respondent s sworn statement dated April 30, 2008, and Answer to The Florida Bar s Petition dated December 27, 2008, Respondent admitted that 5

6 she had prepared and sent a letter to counsel for the Burger King Corporation on behalf of June Sanderson. Respondent s letter stated that Respondent s firm, Advocare Legal Firm, represented Ms. Sanderson in a claim regarding an alleged employee of the Burger King Corporation. Respondent s letter threatened legal action if her client s claims were not resolved. Respondent signed the letter using the title legal practitioner. The clear intent of Respondent s letter was to assert and enforce legal rights of June Sanderson. Respondent admits that she was asserting Ms. Sanderson s legal rights under the Elder Abuse and Dependent Adult Civil Protection Act. Respondent further admits that the purpose of the letter was to stay the aggressive behavior of the employee. The Supreme Court of Florida has held that it is the unlicensed practice of law for a nonlawyer to induce a client to rely on the nonlawyer to properly handle a legal matter. The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla. 1978). Florida law is clear that any activity that involves an important legal right of another is the practice of law. In The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963), the Supreme Court developed the following test to determine whether an activity is the practice of law: 6

7 ...if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law. Settlement negotiations clearly meet the standards set forth in Sperry as the outcome affected the important legal rights of the parties. In The Florida Bar v. Warren, 655 So.2d 1131 (Fla. 1995), the Supreme Court held that corresponding with either parties or the attorneys for parties as the representative of a client relative to a legal matter constituted the practice of law. The giving of advice and assisting others in the preservation of their rights and interests in matters under the law have universally been held to be the practice of law. The Florida Bar v. Arango, 461 So. 2d 932, 934 (Fla. 1985); State v. Sperry, 140 So. 2d 587 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963). The Referee therefore finds that Respondent Goldstein s representation of June Sanderson in a legal matter constituted the unlicensed practice of law. The evidence shows that Respondent Goldstein was not working under the supervision or instruction of Florida attorney Stephen Silkowski when she prepared a demand letter on behalf of June Sanderson. The 7

8 affidavit of Stephen Silkowski shows that Mr. Silkowski was completely unaware of Respondent s use of his name in connection with the matter. Respondent Goldstein was not working under the supervision of Stephen Silkowski or any member of The Florida Bar, nor performing specifically delegated substantive legal work for which a member of The Florida Bar was responsible, and therefore, neither meets the definition of a paralegal under Rule (b), Rules Regulating The Florida Bar. Respondent Goldstein s use of the title, Legal Practitioner and the business name, Advocare Legal Firm constitutes the unlicensed practice of law under Rule (a)(2). The aforementioned actions of the Respondent have violated the letter and spirit of this Court's decision in The Florida Bar v. Martin, 432 So. 2d 54 (Fla. 1983); The Florida Bar v. We The People, 883 So. 2d 1280 (Fla. 2004); The Florida Bar v. Warren, 655 So. 2d 1131 (Fla. 1995); The Florida Bar v. Davide, 702 So. 2d 184 (Fla. 1997); The Florida Bar v. Miravalle, 761 So. 2d 1049 (Fla. 2000); The Florida Bar v. Cartarcio, 709 So. 2d 96 (Fla. 1998); and Rule (a)(2) and Rule (b), Rules Regulating The Florida Bar. III. RECOMENDATIONS 8

9 The recommendations of the undersigned Referee are as follows: A. That Respondent be found to have engaged in the unlicensed practice of law in the State of Florida. B. That Respondent Lidya N. Goldstein, Individually and d/b/a Advocare Legal Firm be enjoined from the unlicensed practice of law in the following activities: (1) Holding herself out as capable of providing legal services and/or qualified to handle a legal matter; (2) Corresponding with either parties or the attorneys for parties as the representative of a client in a legal matter; (3) Giving legal advice and having direct consultation on legal matters; (4) Rendering legal assistance to individuals; (5) Offering to assist an individual with a legal problem; (6) Inducing another to rely on you to handle a legal matter; (7) Using the title paralegal, legal assistant or other similar term unless she is working under the direction and supervision of a member of The Florida Bar; 9

10 (8) Operating a business with Legal in the business name unless the business is providing services to members of The Florida Bar; (9) Providing legal services directly to the public; (10) Using the title, Legal Practitioner and the business name, Advocare Legal Firm ; and (11) From otherwise engaging in the practice of law in the State of Florida until such time as Respondent is duly licensed to practice law in this state. C. That this Court assesses a monetary penalty of $1,000, which is equal to $1,000 per incident of unlicensed practice of law. D. That the costs of this proceeding be taxed against Respondent. E. That this Court grant such other and further relief as it may deem proper. IV. STATEMENT OF COSTS AND MANNER IN WHICH COSTS SHOULD BE TAXED The Referee finds the following costs were reasonably incurred by The Florida Bar. 1. Investigative Costs $ Court Reporter Fees $

11 3. Travel Expenses of Bar Counsel $ TOTAL $ It is recommended that such costs be charged to Respondent and that interest at the statutory rate shall accrue and be payable beginning 30 days after the judgement in this case becomes final. Dated this day of, E. McRae Mathis Referee 11

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original of the foregoing Report of Referee has been mailed to Honorable Thomas D. Hall, Clerk, Supreme Court of Florida, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida ; and that copies were mailed by regular U.S. Mail to Lori Holcomb, UPL Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida , and Lidya N. Goldstein, Respondent, at 520 Brickell Key Drive, Apt. A2011, Miami FL this day of, E. McRae Mathis Referee 12