Tuesday, November 22, 2011

In Florida - UPL is a Felony

As of 2004, a charge or conviction for the unauthorized practice of law became a felony. This change sneaked up on many legal document preparers too busy trying to make an honest living to take notice of the Florida Bar's shenanigans. Before the charge was ratcheted up it was a misdemeanor and carried a maximum $1,000. fine. Now, as a felony, the fine is up to $5000.
An article posted on the Florida Bar's website, back in 2004, when this change came about, titled, “UPL now Buys A Felony Charge”, gleefully states: “

“The new law will not mean any changes in the Bar’s UPL or disciplinary operations. The UPL Department will continue to seek cease and desist agreements and Supreme Court injunctions against unlicensed practitioners, and indirect criminal contempt citations for those who violate the injunctions. Lori Holcomb, Bar UPL counsel, said the office also will continue its practice of referring the more egregious cases to state attorneys for prosecution.”

And, stated later in that same article:

“The legislation came about after a meeting in the fall of 1982 between the House Judiciary Committee and immediate past Bar President Miles McGrane, who was then president-elect. Representatives said they had heard complaints from constituents that nonlawyers were charging hefty fees for legal matters, frequently in immigration matters, and they were doing little or no work.”

I suppose that attorneys were resentful that “nonlawyers were charging hefty fees for legal matters, … and they were doing little or no work.” After all, it is the attorneys place to do just that.
A felony on your record can damage your life. In Florida, a criminal charge with no conviction shows up in a background check with the same frequency as a conviction. A felony charge with no conviction is enough to be prohibited from working in many types of employment. Following is a partial list of jobs affected by a felony conviction or plea of no contest:

Private Security
Private Investigator
Repossession Services
Notary Public
Labor Union Business Agent
Horse Racing, Dog Racing, or Jai Alai Fronton Permit Holders and Employees
License and permits for explosive users, manufacturers, distributors, and dealers
Permit for ether distribution, manufacture, purchase,or dealing
Pest Control Operator License
Paramedic
Nurse
Acupuncture License
Anesthesiology Assistant
Athletic Trainer
Certified Social Worker
Chiropractic
Clinical Social Worker
Dentistry
Dietetics and Nutrition License
Electrolysis License
Medical License
Mental Health Counselor
Midwife
Pharmacist
Physical Therapist
Physician Assistant

There are many more types of jobs affected by a felony charge or conviction, and even though many of the rules for each state that a conviction is a prohibition for employment, a charge alone will often prevent someone from being hired or issued a license. It doesn't seem right or even reasonable, but ask anyone who has been charged with a felony and adjudication was withheld. Even though there was no conviction, and no plea of nolo contendre, more often than not, that person will still be denied a job based on failing a background check.
So now that we have established how difficult it is to find work or acquire a license for people charged with or convicted of felonies, exactly what types of crimes are also third degree felonies? Since UPL is considered a felony of the third degree, what other crimes are ranked the same? Ready? Here's the short list:

Grand Theft
Grand Theft Auto
Cocaine Possession
Possession of a Controlled Substance
Burglary of an Occupied Structure
Marijuana – Sales, Delivery, or Manufacture
Uttering a Forged Instrument
Child Neglect

This list is by no means exhaustive. There are many many more third degree felonies that this. The short list is there to give you the idea of how UPL is classified. There are levels and a point system for felonies, in addition to the degree of felony. I could not find the specific crime of the unauthorized practice of law anywhere; and I'm not sure without further research whether UPL is a level one third degree felony or a level six.

As far as I can find, the following is the only Florida Statute that specifically addresses the unauthorized practice of law:

454.23 Penalties.—Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

By now, you may be saying to yourself, that this is fascinating information … but. What is the point? Fish or cut bait. I gave you the background to drive the point home, to make sure that you know, how threatening we are. UPL laws are written for other reasons than to keep us in our place, maybe. UPL laws are also written to keep unethical actors from pretending to be attorneys when they're not. True enough, but we have fraud laws for that, which have much more teeth than this. If I were a state's attorney and received a referral for prosecution of someone posing as an attorney and taking people's money for under false pretenses, I would prosecute for fraud, not UPL.
So never doubt that UPL laws are directed at us. We are the threat. After all, people other than lawyers cannot be allowed to go around charging hefty fees and doing little or no work. Whose job is that?

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