Petition for Writ of Certiorari — Rapoport v. Florida Bar

?™ Supreme Uo

|) FIL 5 US.

03 315 AUG 25 2003

In the

Supreme Court of the United States

ae ee

ALBERT A. RAPOPORT,

~

Petitioner,

THE FLORIDA BAR,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Florida

PETITION FOR A WRIT OF CERTIORARI

4

os |

Joseph R. Giannini

Counsel of Record

925 S. Westgate Ave., #102

Los Angeles, CA 90049

(310) 442 9386

Attorney for Petitioner

CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM

inwe 4

{ ‘

i

QUESTIONS PRESENTED

1. In Sperry v. Florida ex rel. Florida Bar, 373

U.S. 379 (1963), this Court held that a federal statute

and regulation that explicitly authorized practice before

the United States Patent Office pre-empted state law,

and that under federal law Florida may not prohibit

within the State tasks which are incident to the

preparation and prosecution of patent applications.

Likewise, a federal statute and regulation explicitly

authorizes practice before the Securities Exchange

Commission. Can the State of Florida, consistent with

the Supremacy Clause, enjoin within the State of

Florida, federal practice and tasks which are incident to

the preparation and prosecution of federal securities

arbitrations under the Securities Exchange Act?

2. This Court has over and over again held that

under the Federal Arbitration Act contracts requiring

securities law arbitrations, conducted under the Rules

of the National Association of Securities Dealers

(NASD) and the New York Stock Exchange (NYSE) pre-

empts state law, and they must be rigorously enforced

according to the contract terms. Can the State of

Florida, consistent with the Federal Arbitration Act and

the Supremacy Clause, enjoin arbitration practice by

qualified attorneys as defined by arbitration agreements

approved by the NASD and NYSE within the State of

Florida?

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED.........-..-::::sessssesssereereteneestenttntten i

TABLE OF CONTENT .........:::ssessseceesecsrsseennenseenenennsensenennes il

TABLE OF AUTHORITIES .........:::esccssseeeesersretessensennaneees iii

OPINIONS BELOW...........::::sccscessecesrsereeeenesnseseesnsensenseneneess l

JURISDICTION .........0.:cessssrssssrsssserseenssvessersnscssensennonsensenconse ]

RELEVANT PROVISIONG.......::::::c:cesssseseseeseseesesssesnennenenness ]

STATEMENT. ........-:0ceescsecssscscvsscsccssenscseronsesnsennensennssensonscons ]

REASONS FOR GRANTING THE WRIT........-.:::eee 9

CONCLUSION ......:0:-ceecscsscsssssssseccenccnceosnssntssneencssnnconnsenesoes 20

APPENDIX

Supreme Court Order Denying Rehearing .........--+++. la

Supreme Court Decision... 3a

NYSE Constitution and Arbitration Rules.............. 15a

NASD Manual - Code of. Arbitration

PLOCECUIE ....0ccscsccsesescesssssesseseseeessnneesssesoesecessceeasansen sas l6a

NASD Dispute Resolution Arbitration —-

UNIFORM SUBMISSION AGREEMENT ...........-.-+ 17a

iS el Ong MO eae .

ill

TABLE OF AUTHORITIES

CASES

Allied Bruce Terminix v. Dobson, 513 U.S.

Nee eputcbanienton 7, 16

Barnard v. Thorstenn, 489 U.S. 546

EGE SRST EF sor a ae ORO 15

Chambers v. NASCO, Inc., 501 U.S. 278

Niles lsdeeiaces Snastcanawdarcsnjanivesiocevasilavsatinvers 10

Citizens Bank v. Alafabco, Inc. 02-1295,

aaa cate sah pundcundniais smecnanepuns 19

Ex parte Burr, 9 Wheat. 529, 531 (1824) 0 10

Florida Bar re Advisory Opinion on

Nonlawyer Representation in Securities

Arbitration, 696 So.2d 1178 (Fla. 1997)... cece 7

Frazier v. Heebe, 482 U.S. 641 (1987)... cece 12,13

Gibbons v. Ogden, 9 Wheat 1, 211... ec eeeeeeeeeeeee 4

Howsam v. Dean Witter Reynolds, 537

Ce lanbnhinanniniiionnins 16

In Re Desilets, 291 F.3d 925 (6th Cir. 2002) ...... cc. 10

In Re Poole, 222 F.3d 618, 621 (9" Cir.

a cslinpanenesuhiadibanseniesed 11

i

iv ;

Mastronbuono v. Shearson Lehman |

Hatton, Frac., 614 US. GE C1BBG .2.....000c.rrsceesereseressenevserenns 16

Pennsylvania v. Wheeling & B. Bridge

Cer, 1B Bere. GIG, BB issn csnnssenesnrncensissccrnerssvennesernenvenareene 4,9

Perry v. Thomas, 482 U.S. 483 (1987) -.sccssssssssssssssseeeee 16 |

Selling v. Radford, 243 U.S. 46, 49 (1916) «0.2... 10 |

Shearson/American Express Inc. v. i

McMahon, 482 U.S. 220 (1987) ..........ccsccesseseseeeeees 5, 14, 17 |

Sperry v. Florida ex rel. Florida Bar, 373

CRA BE CID cnennscesecncnvisineansntssennconnenennsinnnicvisionninnit 4,5, 10 |

Supreme Court of New Hampshire v. |

Piper, 470 U.S. 274, 285 (1985)) ...........ccscescsrsssseseseenseees 15 |

Theard v. United States, 354 U.S. 278 |

(IT) esncsevesecnssntinnsenninsositiennsinenvensantnnetaenvneatasivakientientavenastates 10 ;

Volt Information Sciences, Inc. v. Board

of Trustees of Leland Stanford

University, 489 U.S. 468, 474 (1989) ........ccccseseseeeteees 16

Constitutional Statutory Provisions & Regulations |

Re A ore ae onctneen 1, 4, 9, 18 )

9 U.S.C. § 1 — 307 (2000), (FAA) ecccssssssssssssssssesssesesesensen 4

Be Oe it ssp vandleiencdnneacdisacibrentesasoensbiaabicnncemtelenaneineetees 7,17

BG EGE. © TE sersesnssnoveitiintnsennesnenasvnnsisinnnannssnentianen 18, 19

SE URE. © TEE wininrcecnccscitvnerinncicesiiiomninsstpnansnnantiitiii 18, 19

.

BE UFC © Fe ae Riv sencicctemsecancacsaccusanonenenscuncenens 6, 17

BG UDA. © FG civsiesecminiconinaraamuinass 6, 17, 19

Bee CEE .. © CR a sretieviceeesnssticsbnicesdleigeasvenamade 18

Serheee- Oley Act OE BIC scsvivinisicessssessesvevsesonssensnesvesseees i)

PF CPOs RE, Bi i wsesasccnsonnssnsnsianccneesncansnans 1,4, 9, 18

BS USC. © TEE 6 CU case erentssnsnscisensnencartuicennicrtnemanneietan 5

ae ULE © Bt Ci iiidtininniscniinnaeeal l

PORES 60 COT scenic vieniesnicnsznccsstionncncaneninmnpent 1, 11

Article I § 8. Commerce Clause .....................6:. pees 1, 5, 20

Article VI, Section 2. Supremacy Clause....................64 l

Pe DI i iicinicicscnncsioesiaemeaad 1, 9, 11, 18, 14, 15

Other Authorities

ABA E-Journal, May 16, 2003 “Out-Of-

State Insecurity, Florida Ruling on

Federal Securities Arbitration Cases Puts

Legs Ct TAGS scccviisonininiciaidammneaann 8

ABA MJP Commission Report, Client

Representation in the 21” Century,

www.abanet.org/cpr/mjp-home. html. .............. eee 8,13

Florida Daily Business Breeze, March 24,

2003, cover story, “Down the chute, The

Florida Supreme Court springs a trap

vl

door on out-of-state attorneys banning

them from securities cases in Set CUNEO.” cissceseres 8, 11, 19

l

Opinions Below

The Florida Supreme Court decision in The State

Bar v. Rapoport SCO01-73 is set forth in the Appendix.

The official report.is listed at 845 So.2d 874 (2003).

Jurisdiction

The decision on which certiorari is requested was

entered on February 20, 2003. Rehearing was denied on

May 6, 2003. Justice Anthony Kennedy granted an

extension to file for certiorari review to August 25, 2003.

The statutory provision for this Court's

jurisdiction is 28 U.S.C. § 1257 (2), which provides for an

appeal from a final judgment of the highest court of a

state when the validity of a challenged state statute is

sustained as not in conflict with federal law.

Relevant Provisions

See Appendix for text:

Preamble to Constitution

Article I § 8. Commerce Clause

Article VI, Section 2. Supremacy Clause

First Amendment

5 U.S.C. § 500. Administrative practice; general

provisions

17 CFR Sec. 201.102 Appearance and practice

before the Commission

Statement

Petitioner Albert A. Rapoport has been a member

in good standing of the Bar of the District of Columbia

for almost 50 years, and a member in good standing of

2

eet cttitantiiie, Maat eatin ates dae

the bar of this Honorable Supreme Court for 44 years.

Petitioner is a veteran of World War II and the Korean

War. Petitioner and his wife reside in Florida. Petitioner

is not a member of the Florida Bar.

adits tenes

tate

Petitioner has vast experience as a stock-broker.

Petitioner has been licensed as a Series 7 broker.’

Petitioner has been certified as an arbitrator and

mediation by the NASD and NYSE. Petitioner because of

his experience working as an attorney, Series 7

broker/dealer, and arbitrator is particularly well

qualified to represent investors in securities arbitrations.

Petitioner limits his practice to federal securities

arbitrations before the NASD and NYSE. |

ee eer. eee

The Florida Bar filed a petition for an injunction

claiming Petitioner was engaged in the unlicensed

practice of law (UPL). This petition was not filed

because any client complained against petitioner. The

petition alleged Petitioner was engaged in the

unlicensed practice of law because he (1) represents

parties in Florida in securities arbitration proceedings

by entities such as the American Arbitration Association,

the National Association of Securities Dealers, and the

New York Stock Exchange; and (2) advertises his

securities arbitration services in the Fort Lauderdale

Sun-Sentinel. The Florida Supreme Court issued an

order to show cause, and referred the matter to a

referee for determination of any questions of fact.

‘

‘The Series #7 General Securities Registered Representative

Examination qualifies an individual to sell any type of security. The

exam is administered by the National Association of Securities

Dealers at test sites throughout the United States. The exam

consists of 250 multiple questions, divided into two three hour

periods. The exam subjects tested are Equity Securities, Debt

Securities, Options, Trading Markets, Customer Accounts, New

~ Issues, Investment Companies, Taxes and Tax Shelters, Regulations,

and Analysis.

ee

*?

et

While representing himself, Petitioner requested

that the referee continue his case since he had

undergone three-vessel coronary artery bypass surgery,

was still suffering from cardiac arrhythmias, and was

under instructions from his doctor to avoid all undue

stress. A copy of his doctor's instructions was attached

to the motion. His request for a continuance was denied.

Petitioner asked that the referee reconsider his decision

and permit him an opportunity to recover from his

surgery so that he could "fully and properly prepare his

response" to the Bar's motion for summary judgment.

Petitioner asserted that there were material issues of

fact in dispute and that he should be available in .

approximately one month. His request was denied. At

no time did the referee provide any hearing. After the

referee denied both requests for a continuance, the

referee requested an extension from the Florida

Supreme Court based on Petitioner’s illness, only to file

his decision. The Florida Supreme Court granted the

request and extended the time to file the referee's report.

The referee in his findings of fact concluded that

(1) Petitioner is a nonlawyer in Florida and cannot

operate a law practice or engage in the general practice

of law in Florida; (2) Petitioner has engaged in the

practice of law by giving legal advice and consultation to

clients, by drafting, signing, and filing securities

arbitration claims for clients, and by representing clients

in securities arbitration proceedings; (3) no federal or

state law authorizes Petitioner as a nonlawyer to

provide legal services and advice in_ securities

arbitration matters; (4) Florida maintains its substantial

interest and authority to prohibit UPL to protect the

public; (5) Petitioner has advertised his availability to

represent parties in securities arbitration proceedings;

and (6) Petitioner has engaged in Unauthorized Practice

of Law (UPL) and is subject to injunction.

4

Petitioner argued to the referee and later to the

Florida Supreme Court that the Federal Arbitration Act,

9 U.S.C. § 1 — 307 (2000), (FAA) preempts state law and

that Florida has no authority to forbid an attorney from

acting in Florida for parties in federal securities matters.

In Sperry v. Florida ex rel. Florida Bar, 373 U.S.

379 (1963) this Honorable Court held that Florida could

not enjoin a nonlawyer registered to practice before the

U.S. Patent Office from preparing and prosecuting

patent applications in Florida because a federal statute

and Patent Office regulations authorized the practice.

This Court held “the law of the State, though enacted in

the exercise of powers not controverted, must yield

when incompatible with federal legislation.” /d. at 384

(citing Gibbons v. Ogden, 9 Wheat 1, 211.) This Court

explained “A State may nct enforce licensing

requirements which though valid in the absence of

federal regulation, give the State’s licensing board a

virtual power of review over the federal determination

that a person or agency is qualified and entitled to

perform certain functions, or which impose upon the

activity sanctioned by federal license additional

conditions not contemplated by Congress.” Jd. at 385.

“No State law can hinder or obstruct the free use of a

license granted under an Act of Congress.” Jbid. (citing

Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518,

566).

As in patent practice, likewise, there is in federal

securities law a statute and regulation that explicitly

authorizes all attorneys in good standing to practice this

federal law. See 5 U.S.C. § 500 (practice before federal

administrative agencies); 17 CFR Sec. 201.102

Appearance and practice before the (SEC) Commission.

2)

The Florida Supreme Court decision incorrectly

holds there is no federal authorization for non-Florida

licensed counsel to appear in federal securities

arbitrations in Florida, and it totally disregards this

Court’s decision in Sperry v. Florida ex rel. Florida Bar,

373 U.S. 379 (1963). Sperry is a mirror image of this case.

The Florida Supreme Court has refused to defer to the

Supremacy Clause and to follow this Court’s precedent.

Additionally, the Federal Arbitration Act (FAA)

rests on the authority of Congress to enact substantive

rules under the Commerce Clause. Petitioner argued

this Honorable Court has again and again held that

under the Federal Arbitration Act, that contracts

requiring securities law arbitrations, conducted under

the National Association of Securities Dealers (NASD)

and the New York Stock Exchange (NYSE) pre-empt

state law, and must be rigorously enforced according to

the contract terms.

Petitioner argued the Florida Supreme Court was

obligated to follow Shearson/American Express Inc. v.

McMahon, 482 U.S. 220 (1987). Shearson presented two

questions regarding the enforceability of predispute

arbitration agreements between brokerage firms and

their customers. The first is whether a claim brought

under § 10(b) of the Securities Exchange Act of 1934

(Exchange Act), 48 Stat. 891, 15 U.S.C. § 78j(b), must be

sent to arbitration in accordance with the terms of an

arbitration agreement. The second is whether a claim

brought under the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1961 et seq., must

be arbitrated in accordance with the terms of such an

agreement. Jd. at 222.

Both of these questions were answered in the

affirmative, and held these questions had to be

6

arbitrated under the terms of the written securities law

arbitration agreements. This Court reasoned,

“Since the 1975 amendments to § 19 of the

Exchange Act, however, the Commission has had

expansive power to ensure the adequacy of the

arbitration procedures employed by the SROs. No

proposed rule change may take effect unless the SEC

finds that the proposed rule is consistent with the

requirements of the Exchange Act, 15 U.S.C. § 78s(b)(2);

and the Commission has the power, on its own initiative,

to "abrogate, add to, and delete from" any SRO rule if it

finds such changes necessary or appropriate to further

the objectives of the Act, 15 U.S.C. § 78s(c). In short, the

Commission has broad authority to oversee and to

regulate the rules adopted by the SROs relating to

customer disputes, including the power to mandate the

adoption of any rules it deems necessary to ensure that

arbitration procedures adequately protect statutory

rights.

In the exercise of its regulatory authority, the

SEC has specifically approved the arbitration

procedures of the New York Stock Exchange, the

American Stock Exchange, and the NASD, the

organizations mentioned in the arbitration agreement at

issue in this case.” Jd. at 234-35.

The arbitration procedures adopted by the NASD

and the NYSE that have been approved by the SEC

permit all sister-state attorneys in good standing to

appear as counsel in disputes between brokerage firms

and their customers. The client/broker arbitration

agreements and the Uniform Submission Agreements

bind the parties to these SEC approved arbitration rules.

There is no restriction that only Florida licensed

attorneys can appear as counsel in the NASD or NYSE

ca Lia egtanradael ee

7

arbitration rules. (Moreover, the vast majority of these

SEC approved arbitration agreements provide New York

as the choice of law.)

Congress in 1990 has enacted legislation

extending, not retracting, the scope of the Federal

Arbitration Act. Allied Bruce Terminix v. Dobson, 513

U.S. 265, 271 (1995) See 9 U.S.C. § 15 (Congress

eliminated the Act of State doctrine as a bar to

arbitration. international arbitrations; 9 U.S.C. §§ 201-

208 (international arbitration).

The Florida Supreme Court rejected Petitioner’s

pre-emption arguments and affirmed the referee. The

Florida Supreme Court without a moment’s analysis

held, “None of the (16 cited Federal Arbitration Act)

cases, however, concerns the authorization of the

practice of law in securities arbitration proceedings.”

Instead, the Court relied upon Florida Bar re

Advisory Opinion on Nonlawyer Representation in

Securities Arbitration, 696 So.2d 1178 (Fla. 1997). In

that case, the Court held that it was the unlicensed

practice of law for non-lawyers in securities arbitration

proceedings to give specific legal advice and perform

the traditional tasks of the lawyer at arbitration

proceedings. That case, however, included a footnote

that it was not meant to include or apply to attorneys

licensed in other states. The Florida Supreme Court, in

essence, took a case applicable to a non-lawyer, never

admitted to practice anywhere and shoe-horned all non-

Florida licensed attorneys in good standing appearing in

federal securities arbitrations into that same non-lawyer

category. |

Two members of the Florida Supreme Court:

dissented holding that Petitioner had been denied his

8

fundamental right to due process, and that he was

entitled to a hearing on his claims.

The Florida Supreme Court’s decision has sent

shockwaves in federal securities arbitrations throughout

the United States. See ABA E-Journal, May 16, 2003

“Out-Of-State Insecurity, Florida Ruling on Federal

Securities Arbitration Cases Puts Lawyers i Limbo.”

See Florida Daily Business Breeze, March 24, 2003,

cover story, “Down the chute, The Florida Supreme

Court springs a trap door on out-of-state attorneys

banning them from securities cases in the state.” This

article goes on to conclude that there are only about 15

licensed attorneys in South Florida specializing in

federal securities arbitrations.

This Florida “trap door” sprung on federal

practice specialists is even more shocking in light of the

ABA amendment’s to the Model Rules of Professional

Conduct. These amendments were the result of the

ABA’s adoption of its MJP Commission Report, Client

Representation in the 21” Century. This report is

available on the ABA’s web page

www.abanet.org/cpr/mj -home.html. These

amendments came after two years of Multijurisdictional

Practice (MJP) hearings conducted nationally by a blue

chip panel of recognized leaders of the bar. The MJP

Commission reviewed testimony and opinions from

virtually every arm of the organized bar. The ABA Model

Rules now call for reciprocal bar admission on motion

for experienced attorneys and reciprocal discipline

enforcement.

Pe ae ee ee Pe

9

Reasons For Granting The Writ

1. The Court Should Grant Certiorari

Because The Florida Supreme Court’s Decision

Totally Disregards This Court’s Decision in Sperry,

and The State of Florida Does Not Have The Right

To Trump Federal Licensing Law

This case wherein the Florida Supreme Court has

adopted a parochial view rather than national presents a

transcending question of federal law in this 21° Century

of increased technology and attorney specialization. The

Securities Exchange Act and the Securities Exchange

Commission were created by Congress. The federal

courts have exclusive jurisdiction of violations of the

Exchange Act and regulations. 15 U.S.C. § 78aa. Just last

year as a result of the Enron and WorldCom scandals,

Congress has responded by passing the Sarbanes-Oxley

Act of 2002 which contains new criminal and reporting

provisions and gives the SEC broad new powers to

regulate the conduct of attorneys who practice before it.

Intertwined with this federal substantive law are the

First Amendment rights to associate with counsel of

choice, and right to petition for redress of grievances.

Consistent with the First Amendment, Congress has

authorized all American attorneys in good standing to

appear before federal administrative agencies. 5 U.S.C §

500. The SEC has adopted 17 CFR Sec. 201.102

Appearance and practice before the Commission that

authorizes all American attorneys in good standing to

practice before the SEC.

Since the founding of our nation, it has been the

law that “No State law can hinder or obstruct the free

use of a license granted under an Act of Congress.”

Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518,

566. See Theard v. United States, 354 US. 278

10

(1957)(state and federal bar are distinct and each has

authority to admit or discipline its members); Chambers

vy. NASCO, Inc., 501 U.S. 278 (1957)(a federal court has

power to control admission to its bar) (citing Ex parte

Burr, 9 Wheat. 529, 531 (1824)). In re Ruffalo, 390 U.S.

544, 547 (1968)(accord). Once federal admission is

secured, a change in circumstances underlying state

admission — such as a shift in domicile — is "wholly

negligible" on the right to practice before a federal court.

See Selling v. Radford, 243 U.S. 46, 49 (1916).

In Sperry v. Florida ex rel. Florida Bar, 373 U.S.

379 (1963) this Honorable Court held that Florida could

not enjoin a nonlawyer registered to practice before the

U.S. Patent Office from preparing and prosecuting

patent applications in Florida because a federal statute

- and Patent Office regulations authorized the practice.

This Court explained “A State may not enforce licensing

requirements which though valid in the absence of

federal regulation, give the State’s licensing board a

virtual power of review over the federal determination

that a person or agency is qualified and entitled to

perform certain functions, or which impose upon the

activity sanctioned by federal license additional

conditions not contemplated by Congress.” Id. at. 385.

Sperry is a mirror image of this case. The State of

Florida in this anneal has disregarded this Court’s

hoiuuis ALL OPVEF TY) ALI A LIEU Hgyetsss Hier A bapyLddigy O46

federal licensing law in favor of its own antiquated

parochial view.

This Court should also reverse the Florida

Supreme Court decision because it is diametrically

opposed to decisions by federal courts that have

followed this Court’s precedent refusing to permit state

law to trunip federal licensing rules. See In Re Desilets,

2991 F.3d 925 (6th Cir. 2002)(held lawyer properly

<li iii a osc pait eisai aims,

11

admitted to federal bar under the applicable rule and not

admitted in the State of Michigan is not required to

disgorge fees); Ix Re Poole, 222 F.3d 618, 621 (9" Cir.

2002) (federal courts have exclusive authority over

members of their bar). |

The decision in this case injures not only

petitioner but also American citizens and commerce

throughout our Union. This Court should not permit, to

quote from a Florida newspaper — “The Florida

Supreme Court [to] spring a trap door on out-of-state

attorneys banning them from securities cases in the

state.” See Florida Daily Business Breeze, supra. The

Preamble of our Constitution states its first purpose,

“We, the people of United States, in order to form a

more perfect union, establish justice...” There can be no

“perfect union” or “justice” when one State compels the

citizens of the other 49 States to hire a Florida attorney

as a condition predicate to obtain justice in a federal

arbitration. To paraphrase Thomas Jefferson, it is

tyrannical to compel a citizen to associate with those he

chooses not. If the other 49 States follow Florida’s

example, the Securities Exchange Commission, the

Federal Arbitration Act, the First Amendment rights, the

establishment of justice, and more perfect union is a

sham. This Court cannot without violating its

constitutional duty permit Florida to aggrandize its

powers — as it has done here — at the expense of its

neighboring States and the vital interests of the People

of cur Union.

If Florida can lawfully act as a virtual review

board for federal administrative agencies and licensing

decisions as it has done here, it follows Florida can

enjoin attorney practice before this Honorable Court

and review this Court’s decisions. If Florida can lawfully

tell American citizens from 49 states who they can

12

associate with as counsel, it would follow Florida could

tell this Honorable Court who it should hire as its law

clerks. It would follow that Florida could tell Congress

what laws it approves, and the President who he should

appoint to his cabinet and to the Supreme Court. The

magnitude of Florida's encroachment on federal law in

and of itself warrants reversal or writ review.

Sixteen years ago in Frazier v. Heebe, 482 US.

641 (1987), this Court recognized, “Rules _ that

discriminate against nonresident attorneys are even

more difficult to justify in the context of federal-court

practice than they are in the area of state-court practice,

where laws and procedures may differ substantially

from State to State. (cites omitted) There is a growing

body of specialized federal law and a more mobile

federal bar, accompanied by an increased Gemand for

specialized legal services regardless of state

boundaries.” Id. at 647-48 fn.7. Frazier invalidated a

local federal district court rule that required its

members to live or maintain an office in Louisiana. This

Court went on to reason that “the location of a lawyer’s

office has nothing what-so-ever to do with his or her

intellectual ability or experience in litigating cases in

Federal District Court.” Jd. at 649. This Court further

held the oppe tunity for pro hac vice admission was

inadequate because it imposes @ financial and

administrative burden. Jd. at 650. Frazver holds the

Federal District Court was not empowered to adopt the

residence and office location home town preferential

rules. It therefore follows, the Florida Supreme Court

decision in this case is clearly erroneous, and Florida is

not empowered to adopt rules preferring its own

attorneys for federal securities arbitrations. As in

Frazier, the opportunity for pro hac vice admission in

federal arbitrations in Florida is inadequate because it

imposes a financial and administrative burden.

13

This Court’s reasoning 16 sixteen years ago in

Frazier that, “There is a growing body of specialized

federal law and a more mobile federal bar, accompanied

by an increased demand for specialized legal services

regardless of state boundaries” Id. at 647-49, can no

longer be ignored. Desktop computers, laptops, palm

pilots, email, electronic law libraries, Bill Gates and

Microsoft were in their infancy when Frazier was

decided. The American Bar Association MJP

Commission’s Report “Client Representation in the 21 “

Century,” Wwww.abanet.org/cpr/mjp-home.html, supra,

provides ample evidence of this epidemic demand for

specialized legal services regardless of state boundaries,

as well as the ethical obligations of the legal profession

to accommodate these needs that are within the ambit

of the First Amendment precious liberties to associate

with counsel of choice, and to petition for redress of

grievances.

This Court should also summarily, reverse the

Florida Supreme Court, or grant certiorari, because the

Florida decision is premised on a glaring and despicable

lie. This falsehood is the “public protection” justification

and presumption that the attorneys licensed in the other

49 states are not competent and they will disserve their

clients. This “public protection” justification and

presumption is that passing the Florida bar exam is the

sole quid pro quo of competence. This badge of inherent

inferiority — this “I am better than you official policy

directed against citizens from other states — has no

rightful place in American law or society.

Here, Florida claims petitioner who has been a

lawyer in good standing for 50 years, a Series 7 licensed

stockbroker, and an NASD and NYSE arbitrator and

mediator is a threat to the public while practicing his

federal securities arbitration specialty, and a 25 year old

14

attorney who passed the Florida bar exam yesterday is

better qualified to appear in a federal arbitration.

Virtually everyone knows that an attorney who just

passed a bar exam knows little about practicing law.

The quality most want in an attorney is experience. This

alleged “public protection” _—_justification for

discrimination injures the public by abridging First

Amendment rights. Public protection is a subterfuge for

local lawyer monopoly protection.

This Florida “public protection” justification, if it

were true would mean the nine members of this

Supreme Court, as well as the vast majority of this

Court’s law clerks, who are not admitted in Florida, are

not competent or qualified to perform its constitutional

duties. This absurd Florida’ presumption of

incompetence directed against other American citizens

contradicts common sense and the factual findings of

the ABA report Client Representation in the si

Century, Recommendation 201G — factual finding that

“lawyers who have been admitted to another state’s bar

and have practiced actively for a significant period of

time without disciplinary sanction are qualified to

establish a law practice in the new state, and that, for

experienced lawyers, the bar examination therefore

serves an unnecessary obstacle to establishing a

practice in the new state.” Approximately 35 states have

already adopted this ABA Model of Professional

Conduct, and a half-dozen more are in the process of

soon adopting it. Florida has rejected it.

This Florida “public protection” presumption of

incompetence illusion further contradicts this Court’s

precedent. See Frazier, 482 U.S. at 647, “We are

unwilling to assume that a nonresident lawyer —

anymore than a resident —would disserve his clients by

failing to familiarize himself [or herself] with the [local]

15

rules.” (quoting Supreme Court of New Hampshire v.

Piper, 470 U.S. 274, 285 (1985)). See Barnard - v.

Thorstenn, 489 U.S. 546 (1989)(held the contention that

the Virgin Islands Bar Association does not have the

resources and personnel for adequate supervision of the

ethics of a nationwide bar membership is not a

sufficient justification for discrimination in bar

admission). This “public protection” justification is

further undermined by the fact that the State of Florida

has approved the ABA’s recommendation of reciprocal

discipline enforcement. Stated differently, if a Florida

citizen filed an ethics complaint against petitioner fer

alleged misconduct, the Florida Bar could discipline him

just like any other attorney and any sanction would be

reciprocally enforced.

Petitioner has been an attorney for almost 50

years, and a member of the bar of this Court for over 44

years. Petitioner has fought for an earned his First

Amendment liberties with his service to our country in

World War II and the Korean War. This case is not about

the misconduct of an unethical attorney. Petitioner has

never been sanctioned, suspended, or disbarred.” This

Florida decision stains petitioner’s reputation and life's

work. This decision injures not only petitioner but

American citizens everywhere. This case is about a

Florida Supreme Court anachronism, in which two

Florida justices have held petitioner was denied his

constitutional right to due process — that dishonors this

Court’s precedent over 200 years that uniformly holds a

state may not alter or modify a federal license. This

*The Florida decision in footnote 2 mentions petitioner earlier

stipulated to an injunction against practicing law unless “authorized

to do so by state or federal law, statute, regulation, or decision.”

That decision apparently was apparently not the result of any client

complaint, and it left open the question the Florida Supreme Court

decided in this case.

16

Court should thus summarily reverse or grant this writ

of certiorari.

2. The Court Should Grant Certiorari

Because The Florida Supreme Court’s Decision

Totally Disregards The Federal Arbitration Act,

and This Court’s Repeated Holding That The

Federal Arbitration Act Pre-Empts Conflicting

State Law

This Court has over and over again held that

under the Federal Arbitration Act contracts requiring

securities law arbitrations, conducted under the Rules

of the National Association of Securities Dealers

(NASD) and the New York Stock Exchange (NYSE) pre-

empts state law, and they must be rigorously enforced

according to the contract ten.s. Howsam v. Dean

Witter Reynods, 537 U.S. 79 (2002)(held an NASD

arbitrator should apply the time limit to the underlying

dispute); Mastronbuono v. Shearson Lehman Hutton,

Inc., 514 U.S. 52 (1995)(held arbitration is governed by

what the NASD contract has to say about the

arbitrability of the punitive damages claim and not state

law); Perry v. Thomas, 482 U.S. 483 (1987)(NASD

arbitration agreement preempts California law).

The basic purpose of the Federal Arbitration Act

is to overcome court’s refusal to enforce agreements to

arbitrate. Allied-Bruce Terminix Cos. V. Dobson, 513

U.S. 265, 270 (1995) (citing Volt Information Sciences,

Inc. v. Board of Trustees of Leland Stanford University,

489 U.S. 468, 474 (1989). The Federal Arbitration Act “is

based upon and confined to the incontestable federal

foundations of “control over interstate commerce.”

Allied-Bruce, 489 U.S. at 271. The Federal Arbitration

Act pre-empts state law, and state courts cannot

invalidate arbitration agreements. Id. at 272 (citing

17

Southland Corp. v Keating, 465 U.S. 1, 15-16 (1984).

“Congress, both before and after Southland, has enacted

legislation extending, not retracting the scope of

arbitration. See, e.g. 9 U.S.C. §15 (eliminating the Act of

State doctrine as a bar to arbitration; 9 U.S.C. § 201-209

(international arbitration.” Allied-Bruce, 489 U.S. at 272.

In Shearson/American Express Inc. v. McMahon,

supra, 482 U.S. 220 (1987), this Court in enforcing

arbitrations under the NASD and NYSE stated:

“Since the 1975 amendments to § 19 of the

Exchange Act, however, the Commission has_ had

expansive power to ensure the adequacy of the

arbitration procedures employed by the SROs. No

proposed rule change may take effect unless the SEC

finds that the proposed rule is consistent with the

requirements of the Exchange Act,15 U.S.C. § 78s(b)(2);

and the Commission has the power, on its own initiative,

to “abrogate, add to, and delete from" any SRO rule if it

finds such changes necessary or appropriate to further

the objectives of the Act, 15 U.S.C. § 78s(c). In short, the

Commission has broad authority to oversee and to

regulate the rules adopted by the SROs relating to

customer disputes, including the power to mandate the

adoption of any rules it deems necessary to ensure that

arbitration procedures adequately protect statutory

rights.

In the exercise of its regulatory authority, the

SEC has_ specifically approved the arbitration

procedures of the New York Stock Exchange, the

American Stock Exchange, and the NASD, the

organizations mentioned in the arbitration agreement at

issue in this case.” Id. at 234-35.

18

The arbitration procedures adopted by the NASD

and the NYSE that have been approved by the SEC

permit all sister-state attorneys in good standing to

appear as counsel in disputes between brokerage firms

and their customers. The client/broker arbitration

agreements and the Uniform Submission Agreements

bind the parties to these SEC approved arbitration rules.

There is no restriction that only Florida licensed

attorneys can appear as counsel in the SEC approved

NASD or NYSE arbitration rules. Such a restriction

would fly in the face of 5 U.S.C. § 500 and 17 CFR Sec.

201.102.

The Florida Supreme Court’s naked without any

analysis, holding in.this case that — “None of the cases,

however, concerns the authorization of the practice of

law in securities arbitration proceedings” (App.5-6) —

misreads this Court’s precedent interpreting the FAA.

Every Federal Arbitration Act case this Court has

decided concerns the practice of law in arbitration

proceedings. As in its refusal ‘to follow Sperry, the

decision appealed simply refuses to take a careful and

close look at the FAA and this Court’s precedent

interpreting it.

This Court should also summarily reverse or

grant certiorari because of the violation of fundamental

notions of due process that are required by the SEC for

adopting or changing securities law arbitrations. The

Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq.

"requires SROs to register with the SEC and to

promulgate rules and by-laws that conform with the

Exchange Act. 15 U.S.C. § 78f(b), 780-3(b). All SRO rules,

policies, practices, and interpretations must be

approved by the SEC prior to their implementation. 15

U.S.C. § 78s(b). Proposed rules are published in the

Federal Register and are subject to public comment. See

19

id. Section 19 of the Exchange Act permits the SEC to

approve SRO rules only if they are consistent with the

requirements of the federal securities laws. /d. In

particular, prior to approval of a proposed SRO rule the

~SEC must find that it is designed "to protect investors

and the public interest." 15 U.S.C. § 78f(b)(5), 780-

3(b)(6). In addition, the SEC "may abrogate, add to, and

delete from" the rules of an SRO as it deems necessary

or appropriate if it does so in a manner consistent with

the requirements of the Exchange Act. 15 U.S.C. § 78s(c).

Each SRO must comply with the provisions of the

Exchange Act as well as its own rules. 15 U.S.C. § 78s(g).

In sharp contrast to the SEC required notice to

the public and opportunity to comment before

amendment of SEC approved arbitration rules, the

Florida decision here provided no prior notice or

opportunity to the public to be heard when it shoe

horned a decision applicable to paralegals onto to all

attorneys and the SROs. See Florida Daily Business

Breeze, supra, “Down the chute, The Florida Supreme

Court springs a trap door on out-of-state attorneys

banning them from securities cases in the state.” Here,

the decision was reached on a vital question of federal

securities law affecting the entire nation in a case where

petitioner had a heart attack and was twice denied a

continuance, and two members of the Florida Court

held violated petitioner’s constitutional right to due

process.

Last term in Citizens Bank v. Alafabco, Inc. 02-

1295, (U.S. 2003) (decided June 3, 2003), this Court in a

Per Curiam decision on Petition for Writ of Certiorari

reversed the Supreme Court of Alabama on a FAA case

similar to this case. The question presented was whether

the parties' debt-restructuring agreement is "a contract

evidencing a transaction involving commerce" within

20

the meaning of the Federal Arbitration Act (FAA). 9

U.S.C. § 2. The Alabama Supreme Court refused to

enforce the arbitration agreement based on a strained

interpretation of the Commerce Clause. This Court

reversed holding there is a sufficient nexus with

interstate commerce to make enforceable, pursuant to

the FAA, an arbitration provision included in that

agreement. Here, likewise, there can be no question

securities law arbitrations carried out under an

extensive federal regulatory scheme involve the

Commerce Clause and should be interpreted and

carried out under the Constitution, By-Laws, Rules,

Regulations, and/or Code of Arbitration Procedure of

the NASD and the NYSE.

Conclusion

Our Constitution was designed to form a more

perfect union and to ensure equal justice throughout the

United States. The theory of our Constitution was to

provide a government of checks and balances. A healthy

foot contributes to the health of a body by being healthy

and by being part of a body. This Florida decision

injures not only petitioner but American citizens

everywhere. This decision does not follow this Court’s

Supremacy Clause decisions in Sperry and under the

FAA. This Florida decision usurps federal law enacted

by Congress. It infringes upon the authority of the SEC.

It tramples the Commerce Clause and the sacred First

Amendment rights to associate with counsel, and

petition for redress of grievances. This decision is a

disease that severs Florida from the rest of the United

States. This disease if not cured will infect the health of

Florida and spread this disease to other parts of the

United States. This Court should grant review because

this Court is the sole check and balance on the decision

appealed. This Court has a constitutional duty to ensure

21

that its precedent as well as the Constitution is followed.

It has not been followed here. Justice requires truth and

each part of our government to perform its

responsibility. It is more worthy of choice for this Court

to perform its duty and grant review rather than to deny

it.

For all of the foregoing reasons, this Court is

respectfully requested to summarily reverse the Florida

Supreme Court or to grant petitioner’s request for writ

of certiorari.

Date: August 25, 2003

Respectfully submitted,

/s/ Joseph-R. Giannini

Joseph R. Giannini, Esq.

National Association for the Advancement of the

Multijurisdictional Right to Counsel

925 S. Westgate Ave., #102

Los Angeles, CA 90049

Phone 310 442 9386

Fax 310 826 7989

/s/ Ainslee R. Ferdie

Ainslee R. Ferdie, Esq.

Law Offices of Ainslee R. Ferdie

717 Ponce DeLeon Blvd. #215

Miami, FL 33134

Phone 305 445 3557

Fax 305 441 6401

For Petitioner

Albert A. Rapoport

la

(Footnotes trail the end of each document)

Case No. SC01-73

Lower Tribunal No.: 199911211 (15B)

Supreme Court of Florida.

THE FLORIDA BAR,

Complainant(s),

VS.

' ALBERT A. RAPOPORT,

Respondent(s).

Tuesday, May 6, 2003

Respondent’s Motion for Rehearing and/or Clarification

is hereby denied.

ANSTEAD, C.J., AND WELLS, PARIENTE, LEWIS,

QUINCE and CANTERO, JJ., concur.

SHAW, Senior Justice, dissents.

A True Copy

Test:

Thomas D. Hall

Clerk, Supreme Court

Bh

Served:

HON. FRED TAYLOR, DIRECTOR

LORI S. HOLCOMB

JANET E. BRADFORD

2a

AINSLEE R. FERDIE

HON. JAMES T. CARLISLE, JUDGE

JOHN ANTHONY BOGGS

BARRY W. RIGBY

R. LEE BENNETT

3a

No. SCO1-73 (Fla. 2003)

Supreme Court of Florida.

THE FLORIDA BAR,

Complainant,

V.

ALBERT A. RAPOPORT,

Respondent.

Opinion filed February 20, 2003.

Original Proceeding — The Florida Bar

-

John F. Harkness, Jr., Executive Director, The Florida

Bar, Tallahassee, Florida; R. Lee Bennett, Chair,

Standing Committee on Unlicensed Practice of Law,

Tallahassee, Florida; Lori S. Holcomb, Unlicensed

Practice of Law Director, The Florida Bar, Tallahassee,

Florida; and Janet Bradford Morgan, Bar Counsel, Fort

Lauderdale, Florida, for Complainant

Ainslee R. Ferdie of the Law Offices of Ainslee R. Ferdie,

Coral Gables, Florida, for Respondent

PER CURIAM.

We have for review a referee's report finding as a matter

of law that respondent, Albert A. Rapoport, engaged in

the unlicensed practice of law. We have jurisdiction.

See art. V, § 15, Fla. Const.

Rapoport is licensed to practice law in Washington, D.C.

He is a member in good standing of the bars of the

4a

Supreme Court of the United Siates and the District of

Columbia Court of Appeals. He is not a member of The

Florida Bar.

The Bar filed its petition for an injunction in January

2001, claiming that Rapoport was engaged in the

unlicensed practice of law (UPL) because he (1)

represents parties in Florida in securities arbitration

proceedings by entities such as the American

Arbitration Association, the National Association of

Securities Dealers, and the New York Stock Exchange;

and (2) advertises his securities arbitration services in

the Fort Lauderdale Sun-Sentinel.[{fn1] The Court issued

an order to show cause on January 29, 2001. Rapoport

responded to the order to show cause. Although it

appeared to the Court at that time that Rapoport

admitted the material allegations in The Florida Bar's

petition, the Court referred the matter to a referee for

determination of any questions of fact. See R.

Regulating Fla. Bar 10-7.1(b)(6).

After discovery was propounded by both parties,

including the Bar's request for admissions, the Bar filed

a motion for summary judgment, alleging that there

were no material facts in dispute.[fn2] The referee

granted summary judgment, making the following

findings of undisputed facts: Rapoport (1) is not a

licensed Florida attorney; (2) operates a law practice in

Florida and represents persons in securities arbitration

matters; (3) advises clients about the legal merits of

their securities arbitration claims; (4) prepares, signs,

and files securities arbitration claims for his clients; (5)

represents his clients in securities arbitration

proceedings; (6) offers advice and representation to

stockbrokers defending claims in securities arbitration;

and (7) has, in the past, advertised in the Sun-Sentinel

va

his availability to represent persons in securities

arbitration proceedings.

Based on these findings of fact, the referee concluded

that (1) Rapoport is a nonlawyer in Florida and cannot

operate a law practice or engage in the general practice

of law in Florida; (2) Rapoport has engaged in the

practice of law by giving legal advice and consultation to

clients, by drafting, signing, and filing securities

arbitration claims for clients, and by representing clients

in securities arbitration proceedings; (3) no federal or

state law authorizes Rapoport as a nonlawyer to provide

legal services and advice in securities arbitration

matters; (4) Florida maintains its substantial interest

and authority to prohibit UPL to protect the public; (5)

Rapoport has advertised his availability to represent

-parties in securities arbitration proceedings; and (6)

Rapoport has engaged in UPL and is subject to

injunction.

Rapoport does not contend that any of these material

facts are in dispute. Rather, Rapoport claims that the

Federal Arbitration Act, 9 U.S.C. § 1 — 307 (2000),

(FAA) preempts state law[fn3] and that Florida has no

authority to forbid an attorney from acting in Florida for

parties in federal securities matters.

In Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379

(1963), the United States Supreme Court, although

acknowledging Florida's substantial interest in

regulating the practice of law within the state, held that

Florida could not enjoin a nonlawyer registered to

practice before the U.S. Patent Office from preparing

and prosecuting patent applications in Florida because a

federal statute and Patent Office regulations authorized

the practice. Rapoport provides a long list of federal

cases concerning securities arbitration that involve

ee

6a

preemption of state law by the FAA.[{fn4] None of the

cases, however, concerns the authorization of the

practice of law in securities arbitration proceedings.

Florida Bar re Advisory Opinion on Nonlawyer

Representation in Securities Arbitration, 696 So.2d 1178

(Fla. 1997), is directly on point. In that case, this Court

held that it was unlicensed practice of law for

nonlawyers in securities arbitration proceedings to give

specific legal advice and perform the traditional tasks of

the lawyer at arbitration proceedings. Rapoport

admittedly has engaged in the traditional tasks of the

lawyer — giving of legal advice, preparing and

submitting claims, representing clients in proceedings,

advertising his ability to represent clients — in

‘securities arbitration proceedings in Florida. He is a

nonlawyer in Florida under Rule Regulating the Florida

Bar 10-2.1(c), which provides in pertinent part:

For purposes of this chapter, a nonlawyer or

nonattorney is an individual who is not a member of The

Florida Bar. This includes, but is not limited to, lawyers

admitted in other jurisdictions, law students, law

graduates, applicants to The Florida Bar, disbarred

lawyers, and lawyers who have resigned from The

Florida Bar.

As a nonlawyer, Rapoport is not authorized to practice

law in Florida.

Although Rapoport does not point to any material issues

that are in dispute, he claims that the referee erred in

entering summary judgment without holding a hearing.

He points to the language of Florida Rule of Civil

Procedure 1.510(c), which provides that a motion for

summary judgment "shall be served at least 20 days

before the time fixed for hearing."

7a

We previously have held that a referee in a UPL case has

the authority to enter summary judgment when there is

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Florida Bar

v. Miravalle, 761 So.2d 1049, 1051 (Fla. 2000).

Furthermore, the standard of review on summary

judgment orders is de novo. See Florida Bar v. Cosnow,

797 So.2d 1255, 1258 (Fla. 2001). Lastly, we are aware

that rule 1.510(c) has been interpreted to require

hearings on motions for summary judgments. See

Kozich v. Hartford Ins. Co. of Midwest, 609 So.2d 147,

148 (Fla. 4th DCA 1992).

We deem it unnecessary to reach the issue of whether

rule 1.510(c) mandates a hearing before summary

judgment may be entered in a civil proceeding if there

has been adequate notice and an opportunity to be

heard, and the party opposing the suremary judgment

has failed to show that there are any material issues in

dispute. Unlike other proceedings, this Court has

original jurisdiction over petitions against the

unlicensed practice of law. See R. Regulating Fla. Bar

10-1.1. The Court does not automatically refer UPL

petitions to referees. Referral to a referee is made only if

the respondent raises issues of disputed fact after we

have issued an order to show cause. See R. Regulating

Fla. Bar 10-7.1(b)(6) ("The court may, upon its motion or

upon motion of any party, enter a judgment on the

pleadings or refer questions of fact to a referee for

determination.").

In this case, as noted above, referral to a referee was

made after a response was filed because it appeared that

Rapoport may have been asserting some disputed issues -

of fact. However, in the proceedings before the referee,

and in the multiple pleadings filed with this Court,

including Rapoport's initial brief and reply brief,

8a

Rapoport has failed to demonstrate the existence of

even a single disputed fact — much less a material one.

Accordingly, Rapoport had no right to even have a

referee hear The Florida Bar's petition against the

unlicensed practice of Jaw unless there were disputed

issues of material fact. Once Rapoport filed his response

to our order to show cause, this Court had the discretion

to enter judgment on the pleadings or to refer questions

of fact to a referee. See R. Regulating Fla. Bar 10-

7.1(b)(6). Because there are no disputed issues of

material fact raised by Rapoport, the referee's decision

not to hold a hearing before entering summary judgment

in this case was proper.|fn5]

Rapoport received both notice and an opportunity to be

heard before this Court. There are no material issues of

disputed fact, and based on Rapuport's admissions that

he is engaged in representing parties in securities

arbitration in this state we conclude that, as a matter of

law, Rapoport is engaged in the unlicensed practice of

law.

Rapoport also objects to the referee's recommended

assessment of costs in the amount of $530.40. Rule

Regulating the Florida Bar 10-7.1(d)(2) gives the referee

discretion to recommend the assessment of costs,

including the investigative costs and court reporter's

fees requested in this. action. Rapoport has

demonstrated no abuse of discretion by the referee.

Therefore, we approve the assessment of costs as

recommended.

Accordingly, respondent, Albert A. Rapoport, is hereby

enjoined from engaging in the practice of law in Florida,

including specifically the representation of parties in

securities arbitration proceedings in this state, until he

is duly licensed to practice law in awn Judgment is

Ya

entered for The Florida Bar, 650 Apalachee Parkway,

Tallahassee, Florida 32399-2300, for recovery of costs

from Albert A. Rapoport, in the amount of $530.40, for

-which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, and

CANTERO, JJ., concur.

SHAW, Senior Justice, dissents with an opinion, in

which QUINCE, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION, AND IF FILED, DETERMINED.

SHAW, Senior Justice, dissenting.

I respectfully dissent because I believe that there was a

violation of Rapoport's constitutional right to due

process. As Florida courts have consistently recognized,

due process entitles a litigant to notice and an

opportunity to be heard.[fn6|

While representing himself, Rapoport requested that the

referee continue his case since he had undergone three-

vessel coronary artery bypass surgery, was still suffering

from cardiac arrhythmias, and was under instructions

from his joctor to avoid all undue stress. A copy of his

doctor's instructions was attached to the motion. When

his request for a continuance was denied, Rapoport

asked that the referee reconsider his decision and

permit him an opportunity to recover from his surgery

so that he could "fully and properly prepare his

response" to the Bar's motion for summary judgment.

He asserted that there were material issues of fact in

dispute and that he should be available in approximately

nna:

10a

one month.[fn7] The referee denied this motion and five

days later issued an order granting summary judgment

in favor of the Bar.[{fn8]

The decision to grant or deny a motion for continuance

is a matter of discretion that will normally not be

disturbed.[fn9] In this instance, however, where it was

asserted that there were material issues of fact to be

resolved and a continuance was requested because of

serious medical problems, I feel that it was an abuse of

discretion to deny the continuance and grant summary

judgment without giving Rapoport a _ meaningful

opportunity to respond. |[fn10]

The majority opinion concludes that Rapoport is not

entitled to relief because he received "both notice and

an opportunity to heard before this Court." I do not

believe that this constitutes a sufficient remedy. As

noted above, Rapoport was not given an opportunity to

submit disputed factual issues before the referee, and

there are no provisions which permit him to present

such disputed factual issues before this Court.

The majority opinion relies heavily on the fact that the

referee's findings of fact were based on Rapoport's own

admissions. A litigant's right to due process is not

forfeited, however, because the most damaging

evidence comes from his own confession or admissions.

The right to be heard is fundamental, and Rapoport has

been denied this right. For the above reasons, I dissent.

QUINCE, J., concurs.

FOOTNOTES

(fnl] The petition also included an allegation that

Rapoport formerly advertised as an attorney in Florida

lla

on the American Association of Retired Persons website.

However, because the Bar did not include that claim in

its motion for summary judgment and the referee made

no findings as to that claim, we deem it abandoned and

have not considered that allegation in our disposition of

this case.

(fn2] As "Appendix A" to its motion, the Bar attached

this Court's unpublished order dated April 15, 1999,

approving a stipulation for permanent injunction in case

no. 94,049, Florida Bar v. Rapoport, 732 So.2d 329 (Fla.

1999). According to the stipulation, Rapoport agreed not

to practice law in Florida unless "authorized to do so by

state or federal law, statute, rule, regulation, or

decision."

(fn3] The Federal Arbitration Act, 9 U.S.C. § 1 — 307

(2000), was enacted in 1925. See Pub.L. No. 68-401, 43

Stat. 883 (1925). "The Act was designed ‘to overrule the

judiciary's longstanding refusal to enforce agreements

to arbitrate,’ and place such agreements ‘upon the same

footing as other contracts.'" Volt Information Sciences,

Inc. v. Board of Trustees, 489 U.S. 468, 474 (1989)

(citations omitted). Securities arbitration agreements

are subject to the Federal Arbitration Act. See

Shearson/American Express, Inc. v. McMahon, 482 U.S.

220 (1987).

(fn4] See Doctor's Associates, Inc. v. Casarotto, 517 U.S.

681 (1996); Southland Corp. v. Keating, 465 US. 1

(1984); Doctor's Associates, Inc. v. Hamilton, 150 F.3d

157 (2d Cir. 1998); Ferro Corp. v. Garrison Indus., Inc.,

142 F.3d 926 (6th Cir. 1998); Olde Discount Corp. v.

Tupman, 1 F.3d 202 (3d Cir. 1993); Saari v. Smith Barney,

Harris Upham & Co., 968 F.2d 877 (9th Cir. 1992); David

L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London),

923 F.2d 245 (2d Cir. 1991); Saturn Distribution Corp. v.

12a

Williams, 905 F.2d 719 (4th Cir. 1990); Securities Indus.

Ass'n v. Connolly, 883 F.2d 1114 (1st Cir. 1989); Cohen v.

Wedbush, Noble, Cooke, Inc., 841 F.2d 282 (9th Cir.

1988), overruled by Ticknor v. Choice Hotels Int'l, Inc.,

265 F.3d 931(9th Cir. 2001); Cent. Jersey Freightliner,

Inc. v. Freightliner Corp., 987 F. Supp. 289 (D.N.J. 1997);

Morrison v. Colo. Permanente Med. Group, P.C., 983 F.

Supp. 937 (D.Colo. 1997); Johnson v. Hubbard Broad.,

Inc., 940 F. Supp. 1447 (D.Minn. 1996); Haluska v. RAF

Fin. Corp., 875 F. Supp. 825 (N.D.Ga. 1994); Medika Int'l,

Inc. v. Scanlan Int'l, Inc., 830 F. Supp. 81 (D.P.R. 1993);

Matter of. Management Recruiters Int'l, Inc. and Nebel,

765 F. Supp. 419 (N.D.Ohio. 1991); Seymour v. Gloria

Jean's Coffee Bean Franchising Corp., 732 F. Supp. 988

(D.Minn. 1990); Reed v. Bear, Stearns & Co., 698 F. Supp.

835 (D.Kan. 1988); Russolillo v. Thomson McKinnon

Securities, Inc., 694 F. Supp. 1042 (D.Conn. 1988); In re

Pate, 198 B.R. 841 (Bankr.S.D.Ga 1996).

[fn5] The dissent asserts that Rapoport's due process

rights were violated when the referee refused to

continue the proceedings, even though Rapoport

recently underwent heart surgery. The dissent further

asserts that there were disputed issues of fact that

Rapoport never had an opportunity to present to the

referee. However, a review of the record demonstrates

that Rapoport had multiple opportunities to raise factual

disputes. The Bar's motion for summary judgment was

served by mail on August 17, 2001. Rapoport's motion to

halt proceedings was signed by him on August 30,

raising his recent heart surgery as a basis for the request.

Despite the fact that the motion for summary judgment

had already been served, he did not raise any:issues of

fact in dispute that would have provided the referee

cause to continue the proceedings. Further, after the

referee denied this motion, Rapoport filed a motion to

reconsider on September 10, 2001, that only made a bare

13a

assertion that there were material issues of fact in

dispute, without naming a single specific fact that was in

dispute to give the referee a basis to reconsider. Perhaps

most significantly, in his numerous pleadings before this

Court Rapoport still does not assert that there are

material issues of fact in dispute that the referee must

resolve. Therefore, Rapoport has had ample opportunity

to be heard. His challenge to the Bar's proceedings is

one that involves issues of law and not disputed issues

of fact. Hence, his due process rights have not been

violated.

[fn6] See, e.g., Florida Bar v. Fredericks, 731 So.2d 1249,

1254 (Fla. 1999) ("Accordingly, because Fredericks was

made aware of the conduct alleged by the Bar to be

unethical and had the opportunity to be heard as to this

conduct, there was no violation of due process.");

Florida Bar v. Rubin, 709 So.2d 1361, 1363 (Fla. 1998)

("Prior to being found guilty of the charges at issue here,

Rubin was' afforded appropriate notice and. a full

opportunity to be heard during the final hearing before

the referee. This was sufficient to satisfy the demands of

due process."); see also Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626, 655 (1985) (holding

that where appellant was put on notice of disciplinary

charges against him and was afforded opportunity to

respond to board's recommendation, demands of due

process were satisfied); In re McKay, 191 So.2d 1, 5 (Ala.

1966) ("An attorney must be accorded due process in...

disciplinary proceedings, and the requirements of due

process are met when the attorney is served with

charges or specifications reasonably informing him of

the charges against him and the attorney is thereafter

accorded a hearing with an opportunity to defend.").

(fn7] The majority opinion seems to suggest that

Rapoport, who was proceeding pro se at the time,

l4da

should have spelled out the disputed issues of fact in his

request for a continuance. I find this reasoning

disingenuous for if Rapoport was able to formulate his

research and submit his issues of disputed fact, then he

would not need a motion for continuance at all.

{fn8] Interestingly, after the referee denied both of

Rapoport's requests for a continuance, the referee

requested an extension from this Court based on

Rapoport's illness. This Court granted the request and

extended the time to file the referee's report until

November 28, 2001.

[fn9] Florida Bar v. Lipman, 497 So.2d 1165, 1167-68 (Fla.

1986) ("It is within the sound discretion of the referee,

assigned by this Court to preside over a disciplinary

proceeding such as this, to grart or deny a motion for

continuance. Such a ruling will not be disturbed by this

Court absent a clear abuse of discretion.").

[fn10] See Greene v. Seigle, 745 So.2d 411 (Fla. 4th DCA

1999) (holding that plaintiff's due process rights were

violated when the trial court granted a summary

judgment motion eight days after it was filed without

providing the plaintiff with a sufficient opportunity to be

heard); Mondestin v. Duval Fed. Sav. & Loan Ass'n, 500

So.2d 580 (Fla. 4" DCA 1986) (holding that a party

against whom a motion for summary judgment is filed is

entitled to notice and a meaningful opportunity to be

heard).

15a

NYSE

The New York Stock Exchange

Department of Arbitration

Article 11

NYSE Constitution and Arbitration Rules

January 1999 :

Rule 614. Representation by Council

All parties shall have the right to representation by

counsel at any stage of the proceedings.

l6a

NASD Manual — Code of Arbitration Procedure

Rule 10316. Representation by Counsel.

All parties to have the right to representation by

counsel at any stage of the proceedings.

17a

NASD Dispute Resolution Arbitration

UNIFORM SUBMISSION AGREEMENT

In the Matter of the Arbitration Between

Name(s) of Claimants

and

Name of Respondents

1. The undersigned parties hereby submit the

present matter in controversy, as set forth in the

attached statement of claim, answers, and all related

counterclaims and/or third-party claims which may be

asserted, to arbitration in accordance with the

Constitution, By-Laws, Rules, Regulations, and/or Code

of Arbitration Procedure of the sponsoring organization.

2. The undersigned parties hereby state that they

have read the procedure and rules of the sponsoring

organization related to arbitration.

3. The undersigned parties agree that in the

event a hearing is necessary, such hearing shall be held

at a time and place.as may be designated by the Director

of Arbitration or the arbitrator(s). The undersigned

parties further agree and understand that the arbitration

will be conducted in accordance with the Constitution,

Bylaws, Rules, Regulations, and/or Code of Arbitration

Procedure of the sponsoring organization.

4. The undersigned parties further agree to abide

by and perform any award(s) pursuant to this

18a

Submission Agreement and further agree that a

judgment and any interest due thereon, may be entered

upon such award(s) and, for these purposes, the

undersigned parties hereby voluntarily consent to

submit to the jurisdiction of any court of competent

jurisdiction which may proceed properly enter such

judgment.

D. The parties hereto have signed and

acknowledged the foregoing Submission to Agreement.

Claimant Name (please print)

Claimant’s Signature Date

Claimant Name (please print)

Claimant’s Signature Date

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