2-3 Due Process Considerations

• Jurisdiction: United States

2-3 Due Process Considerations

While it is relatively easy for a legal malpractice plaintiff to bring itself within one of the pigeonholes of Florida's long-arm statute, it also must demonstrate that having the court assert personal jurisdiction over the non-Florida lawyer does not offend due process. This is a much tougher task.

2-3:1 Providing Legal Services Outside Florida

In Rogers & Wells v. Winston,¹⁶ a New York law firm claimed that it was not subject to the jurisdiction of Florida's courts when a dispute arose over payments made to the law firm for services rendered to an estate being probated in Florida. Although acknowledging that the law firm performed all of its services in New York, the court accepted jurisdiction because the estate was located in Florida.¹⁷ Thus, the law firm was on fair notice that it might have to defend itself in Florida.

The ability to sue in Florida individual lawyers affiliated with a New York law firm was the issue in In re Estate of Vernon.¹⁸ Jurisdiction over the law firm itself was conceded. The non-resident partners were found to be subject to suit in Florida because of the partnership's contacts with the state and the fact they had worked on the case knowing it was pending before a Florida court.¹⁹

Similarly, in Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C.,²⁰ although the legal work was done primarily in New York, forming two limited liability corporations for the purpose of acquiring the assets of a Florida corporation was held to establish sufficient minimum contacts for the lawyers to reasonably foresee being haled into a Florida court.²¹

No lawyer sued in Day v. Persels & Associates, LLC²² had any business presence in Florida or was admitted to the Florida bar. The class action complaint accused them of developing and devising "a false, unfair, misleading, deceptive, fraudulent, and despicable scheme to entice financially troubled consumers to enter into so-called 'debt settlement programs.'"²³ Because thousands of Florida residents allegedly were damaged by the lawyers' actions, the court found that "under the circumstances, the exercise of personal jurisdiction over the defendants would not transgress traditional notions of fair play and substantial justice."²⁴

2-3:2 Sending Legal Communications into Florida

Minimum contacts do not exist where an out-of-state law firm merely delivers a legal opinion for use in Florida. A non-final order finding personal jurisdiction over a New York law firm that rendered an opinion regarding a Florida real estate transaction was overturned on appeal in Fleming & Weiss, P.C. v. First American Title Insurance Co.²⁵ According to the Third District Court of Appeal, "To render a nonresident defendant subject to jurisdiction in a Florida court, the statutory requirements of the long-arm statute and the minimum contacts requirement must be met."²⁶

In Wendt v. Horowitz,²⁷ the Florida Supreme Court wrestled with the issue of "whether [sending] telephonic, electronic, or written communications into Florida from outside of the State" can constitute "committing a tortious act."²⁸

Wendt involved a third-party complaint against a Michigan lawyer who prepared loan documents for use in Florida and later corresponded with regulators when they questioned whether the loan documents were securities. It was undisputed that the lawyer never was present in Florida.

The Court's holding expanded jurisdiction significantly:

First, in order to "commit a tortious act" in Florida, a defendant's physical presence is not required. Second, "committing a tortious act" in Florida under section 48.193(1)(b) can occur through the nonresident defendant's telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications.²⁹

In Foster, Pepper & Riviera v. Hansard,³⁰ Florida investors in a limited partnership sued a Seattle, Washington, law firm that had drafted the private placement memorandum they received. The First District Court of Appeal found that the law firm's

sole act of preparing a part of the private placement memorandum, in the absence of any other contacts with Florida or the purchasers of the securities, was insufficient to constitute engaging in business in Florida for purposes of long-arm jurisdiction. Moreover, subjecting Foster[,] Pepper[, and Rivera] to Florida jurisdiction under these circumstances does not satisfy the minimum contacts requirements of due process.³¹

The U.S. Court of Appeals for the Eleventh Circuit found jurisdiction over Michigan lawyers in Robinson v. Giarmarco & Bill, P.C.³² They had been retained by a Florida resident to provide estate planning services. In particular, the lawyers prepared a codicil to a will and two amendments to a trust agreement, all of which were controlled by Florida law, and then mailed the documents to the client in Florida, where they were executed. The court began by describing the steps necessary to determine personal jurisdiction:

The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis. First, we consider the jurisdictional question under the state long-arm statute. If there is a basis for the assertion of personal jurisdiction under the state statute, we next determine whether sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Only if both prongs of the analysis are satisfied may a federal or state court exercise personal jurisdiction over a nonresident defendant.³³

The court found the first prong satisfied because a tortious act had been committed in Florida,³⁴ and cited with approval a non-legal malpractice case styled Sun Bank, N.A. v. E.F. Hutton & Co., Inc.³⁵

Turning to the second prong, the court embarked on a due process analysis centered on whether there would be any offense to "traditional notions of fair play and substantial justice."³⁶ It concluded that the lawyers...