As the Director of the Florida Association of Legal Document Preparers (www.FALDP.org) I make every effort to educate members about the rules surrounding the unauthorized practice of law (UPL). When I notice a member advertising in a way that may mislead the public or trigger a UPL investigation, I contact the member and tell them. Upon joining our association each member is required to acknowledge and agree to our FALDP Pledge which states:
As a Member of the FALDP, I agree:
We offer an online course called “Introduction to Preparing Florida Legal Documents”, which is primarily a compliance course. The course is meant to educate document preparers about the rules surrounding UPL, and also includes information about doing business as a Florida Legal Document Preparer. Some of the UPL rules are clearly posted on the Florida Bar's website, other rules are scattered about in various court cases. The Intro Course is not required unless the document preparer is relocating to Florida from another state or is starting a document preparation business for the first time. I suggest to some experienced paralegals who submit membership applications that they should take the Intro Course, because working under the supervision of an attorney and working for self-represented litigants are two very different activities.
There are things which are considered UPL that no one could imagine, but there they are. You don't know until you know. For example, Florida legal document preparers are not allowed to advertise “free consultations” as this is something that attorneys offer. Florida legal document preparers are not allowed to draft property deeds. It remains unclear whether document preparers can prepare a property deed using a standard template. Document preparers are likewise prohibited from sending a document to a consumer with the word “draft” in the title. We suppose that “draft” in the Florida Bar's reasoning means creating or authoring; but according to multiple dictionaries I checked, “draft” means a preliminary version of a writing.
It is not clear whether document preparers may assist pro se litigants in efiling their documents. . Other document preparers have been told by the Florida Bar that they may not use the word “legal” anywhere on their website or as part of their email address. Document preparers have also been reprimanded for using the words “professional” and “experienced” on their sites or in their advertising when referring to themselves. In addition, document preparers have been told not to mention that they have law firm experience, are a member (or former member) of NALA, and to refrain from mentioning any academic credentials or achievements. For example, document preparers (according to the Florida Bar) are not allowed to state in their advertising that they have a Paralegal Certificate or a BA in Legal Studies – even though these are true facts. All of these things, according to the Florida Bar, mislead the public. And I suppose, mislead the public into somehow thinking that the document preparer is an attorney, even though document preparers make clear in their advertising that they are not attorneys and do not offer legal advice or representation.
In support of their position, the Florida Bar frequently relies on FLORIDA BAR v. BRUMBAUGH 355 So.2d 1186 (1978) and Sperry v. Florida 373 U.S. 379 (1963). Sperry states:
“... if the giving of such advice and performance of such 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.”
The above paragraph is circular reasoning at best. And obfuscation at worst. Please notice the dates on the citations – 1963 and 1978. I am certain the world has changed in the past 39 or 54 years.
It is clear in the Florida Bar rules that legal document preparers may not refer to themselves as “paralegals” or “legal assistants”. However, some legal document preparers persist in using those monikers anyway, and that use in itself has sometimes been enough to trigger a UPL investigation. A quick look through craigslist will reveal many legal document preparers blithely referring to themselves as paralegals, while others are investigated for UPL for referring to themselves as paralegals. Including phrases like “legal services”, and “legal clinic” in a business name is an invitation to investigation.
I am aware of legal document preparers who have not only been told to refrain from using the word “legal” in their business name, but also to refrain from using the word “legal” anywhere on their website AND to refrain from using the word “legal” in their email address.
I think most of this is over kill. I think most of this is about lawyers and the Florida Bar protecting their turf. If lawyers and the Florida Bar could only understand that document preparers are not trying to steal their business. We don't want their business, we just want to conduct our business. If lawyers went to three years of law school so that they could prepare legal forms, I don't know what to say to them. Document preparers do not want the responsibility of giving legal advice, we leave the choices up to the consumer. And/ or we suggest that the consumer consult with a lawyer every time they have a legal question. Legal document prepaers are often serving people who could not possibly afford an attorney, and without a document preparer would be unlikely to pursue their rights at all.
In the long run, I believe consumers are harmed by the Florida Bar's insistence on persecuting legal document preparers. Many consumers cannot possibly afford an attorney and will go without any sort of legal assistance, if document preparers are not available. The courts benefit when consumers use the services of legal document preparers, because even though the consumer may be unrepresented, the documents are clear and correct.
The Florida Bar's infringement on the rights of legal document preparers to earn a living; to enter contracts; and to provide services in the marketplace; is collateral damage. The actual damage in these laws is to the consumer. It is the consumer who would seek assistance in asserting his rights through the court system who suffers. The court system, fraught with jargon, and complicated procedure; can bring dire consequences to people who can find no help at all.