Florida Bar's Advanced Registered Paralegal Program

In December the Florida Bar News published an article about proposed rules under consideration - "Access Commission Looks at Several Legal Access Initiatives".  Among those initiatives is a proposal for the creation of a new tier of paralegals - an Advanced Registered Paralegal. Regarding that initiative, the linked Florida Bar News article states:

ADVANCED FLORIDA REGISTERED PARALEGALS

The commission’s Referral and Assistance Committee voted favorably and forwarded its proposal to create the “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program created by Chapter 20 of the Rules Regulating The Florida Bar to the commission’s Executive Committee for review. The Executive Committee chair forwarded the proposal informally to the Bar Board of Governors for input. The proposal is on the Bar Board of Governors January 31 agenda.

Advanced paralegals would have extra education and work experience requirements than is currently required for Florida Registered Paralegal status. Advanced paralegals would have to be aware of “lawyer’s protocols” in performing authorized services, and the proposed rule would allow those paralegals to engage in the limited practice of law under a lawyer’s supervision in “family law, landlord tenant law, guardianship law, wills, advance directives, or debt collection defense.”

The rule also sets out a licensing and disciplinary process, and provides that duties may not require “independent professional legal judgment” and that the Advanced Florida Registered Paralegals must be supervised by a lawyer who “maintains a direct relationship with the client and maintains control of all client matters.”

The following is an excerpt from the proposed of Florida's Advanced Florida Registered Paralegal initiative.

RULE 20-6.3 ADVANCED FLORIDA REGISTERED PARALEGAL

(a) An Advanced Florida Registered Paralegal may perform the following services when

assisting a limited representation client in matter involving an authorized area of law:

Selection, Completion, and Filing Forms.

1. An Advanced Florida Registered Paralegal may assist a limited representation client in selecting a form and assist a limited representation client in completing, filing and serving the form. This includes conducting intake to obtain relevant information from a limited representation client. The form must include the name, law firm, address and telephone number of the Advanced Florida Registered Paralegal who assisted in preparing the form. If other documents are necessary to the matter and ancillary to the form, an Advanced Florida Registered Paralegal may assist a limited representation client in obtaining, preparing, gathering, and organizing those documents, as well as filing and serving those documents.

2. Providing Information. When assisting a limited representation client with selecting

and completing a form an Advanced Florida Registered Paralegal may:

(A) give general information about how to complete the form;

(B) explain the form and supporting documents and provide information on how

to gather or find the documents;

(C) give general information about the anticipated course of the proceedings and

legal process, deadlines, documents that must be filed, and the applicable procedure for filing

and service;

(D) explain the other party’s documents;

(E) advise a limited representation client as to other documents that may be

necessary to the limited represented client’s case, and explain how such additional documents or pleadings may affect the limited represented client’s case;

(F) obtain relevant facts, and explain the relevancy of such information to a

limited representation client;

(G) explain how a court order affects a limited representation client’s rights and

obligations;

and

(H) provide general information about legal rights, procedures or legal options.

(b) Mandatory Disclosures. When an Advanced Florida Registered Paralegal provides

any of the services set forth in subdivision (a) of this rule, a limited representation client must

give informed consent to the provision of legal services by the Advanced Florida Registered

Paralegal in a written agreement that discloses the limited scope of services the Advanced

Florida Registered Paralegal may provide and meets any other requirement of rule 4-1.2(c). The agreement must be signed by the limited representation client, the Advanced Florida Registered Paralegal, and the supervising or employing lawyer. If the Advanced Florida Registered Paralegal knows or reasonably should know that a limited representation client requires services outside of those permitted by this rule, the Advanced Florida Registered Paralegal must advise the limited representation client to seek legal advice from a lawyer and may refer the limited representation client to the Advanced Florida Registered Paralegal’s supervising or employing lawyer.

       

(c) Prohibited Activities. When providing services pursuant to this rule, Advanced Florida Registered Paralegals may not hold themselves out as representing, speaking for, or advocating on behalf of a limited representation client and may not represent a limited representation client in court, in depositions, or in appeals. This prohibition includes addressing the court or judge as the representative of a limited representation client or on behalf of a limited representation client.
                                           
                                                                                                             

(d)Advertising. Advanced Florida Registered Paralegals may not independently advertise their services. A lawyer may advertise the availability of the Advanced Florida

Registered Paralegal and the services the Advanced Florida Registered Paralegal may provide in compliance with all rules regulating information about a lawyer’s services in subchapter 4-7.

(e) Limitation of Practice Areas. An Advanced Florida Registered Paralegal may only provide the services set forth in subdivision (a) of this rule in an authorized area of law. If a limited representation client has a legal issue outside of an authorized area of law, the Advanced Florida Registered Paralegal may not provide the services. However, nothing in this rule prevents an Advanced Florida Registered Paralegal from providing the services a Florida

Registered Paralegal may provide.

(f) Responsibilities of Employing or Supervising Lawyer. The employing or

supervising lawyer for an Advanced Florida Registered Paralegal remains professionally

responsible for all services provided on behalf of a limited representation client and assumes full professional responsibility for the work product, including any actions taken or not taken by the Advanced Florida Registered Paralegal in connection with the services. The services performed by the Advanced Florida Registered Paralegal supplement, merge with, and become the lawyer's work product.

COMMENT

Studies have shown that there is an unmet need in Florida for access to civil justice.

Litigants often cannot afford to hire a lawyer or do not know that their legal issue requires a lawyer. This rule addresses the access issue by authorizing Advanced Florida Registered Paralegals to provide services to a limited representation client while providing protection to the public through the Advanced Florida Registered Paralegal’s and lawyer’s ethical responsibilities.

This rule sets forth the services a Florida Registered Paralegal may provide and the

services an Advanced Florida Registered Paralegal may provide. A Florida Registered Paralegal

may provide services that do not require the exercise of independent professional judgment,

require direct oversight by the lawyer, and are performed for a client of the lawyer. In contrast,

in addition to the services that may be performed by a Florida Registered Paralegal, an Advanced Florida Registered Paralegal may also provide services that involve the limited exercise of independent professional judgment, do not require lawyer oversight, and are performed for a client who is provided limited representation. These services are not open-ended but are limited to the services set forth in this rule.

The Code of Ethics and Responsibility in this chapter and the Rules of Professional

Conduct set forth elsewhere in these rules apply and provide a level of protection that would not be present if the services were provided outside of the direction and supervision of a lawyer. The lawyer remains responsible for the Advanced Florida Registered Paralegal at all times and must make reasonable efforts to ensure that the Advanced Florida Registered Paralegal’s conduct is compatible with the professional obligations of the lawyer.

A level of protection is also provided by limiting the services to assistance with Supreme

Court Approved Forms and forms that have been prepared or are customarily used by the

Advanced Florida Registered Paralegal’s employing or supervising lawyer in the ordinary course of the lawyer’s practice. The services are also limited to certain authorized areas of law where limited representation is common and assistance is needed.

Protection is also provided by requiring the Advanced Florida Registered Paralegal to

disclose their status and scope of services in writing. The limited representation client will be

fully informed about the limitations at the beginning of the matter and can choose to hire the

lawyer instead. If it becomes apparent during the matter that a lawyer’s services are needed, the

Advanced Florida Registered Paralegal is required to advise the limited representation client to

seek the services of a lawyer.

This rule is silent on the fees the law firm may charge for the Advanced Florida

Registered Paralegal’s services. As noted in the purpose of this chapter, the rules do not create or change any legal requirements regarding charging or awarding fees for services performed by a nonlawyer. While the fees charged should be based on the Advanced Florida Registered Paralegal’s experience and services, they should not be the same as or exceed the fees charged by the lawyer--as that would do little to increase access to civil justice. Improper fee splitting is not implicated as the limited representation client is hiring an employee of a lawyer and fees would go to the lawyer with the Advanced Florida Registered Paralegal being compensated accordingly.

A client may choose full representation by a lawyer. As with any other representation,

the lawyer may delegate tasks to the Advanced Florida Registered Paralegal that are properly delegable, while maintaining responsibility for the representation. In that circumstance, although the Advanced Florida Registered Paralegal holds the title of Advanced Florida Registered Paralegal, the Advanced Florida Registered Paralegal is acting as any other paralegal in performing the delegated tasks.

Nothing in this chapter prevents an Advanced Florida Registered Paralegal from

providing services a Florida Registered Paralegal may provide. In other words, if the employing or supervising lawyer assigns a task that is outside the scope of the services set forth in subsection 20-6.3, but which may be performed by a Florida Registered Paralegal, the Advanced Florida Registered Paralegal may perform the services and provide the assistance to the lawyer.

RULE 20-7.2 ADVANCED FLORIDA REGISTERED PARALEGAL

An Advanced Florida Registered Paralegal must meet the continuing education

requirement for a Florida Registered Paralegal. At least 11 hours of the 33 hour minimum

requirement must include courses in an authorized area of law, litigation, or general civil law.

The courses in an authorized area of law, litigation, or general civil law must be courses

approved by The Florida Bar.

(e) Performance of Services. A Florida Registered Paralegal must act prudently in

determining the extent to which a client may be assisted without the presence of an attorney. A Florida Registered Paralegal may perform services for an attorney in the representation of a client, provided:

(1) the services performed by the paralegal do not require the exercise of independent

professional legal judgment;

(2) the attorney is responsible for the client, maintains a direct relationship with the

client, and maintains control of all client matters;

(3) the attorney supervises the paralegal;

(4) the attorney remains professionally responsible for all work on behalf of the client

and assumes full professional responsibility for the work product, including any actions taken or not taken by the paralegal in connection therewith; and

(5) the services performed supplement, merge with, and become the attorney's work

product.

20-2. DEFINITIONS

RULE 20-2.1 GENERALLY 

(l) Direction and supervision. Direction and supervision of:

(1) A paralegal or Florida Registered Paralegal means that the employing or supervising

lawyer directly supervises the work product of the paralegal or Florida Registered Paralegal.

(2) An Advanced Florida Registered Paralegal means that the employing or supervising

lawyer:

(A) ensures that the Advanced Florida Registered Paralegal is aware of the lawyer’s protocols for the performance of services authorized by rule 20-6.3; and

(B) provides guidance to the Advanced Florida Registered Paralegal relating to

the performance of services authorized by rule 20-6.3 upon request by the Advanced

Florida Registered Paralegal.

(o) Authorized Area of Law. An authorized area of law for an Advanced Florida

Registered Paralegal is family law, landlord tenant law, guardianship law, wills, advance

directives, or debt collection defense.

My questions and concerns:

Does this help or hinder consumers' access to justice?

Is this initiative even necessary?

Why did they single out those practice areas? [family law, landlord tenant law, guardianship law, wills, advance directives, or debt collection defense]. Why not all or nothing?

As always I appreciate your comments and insights.

Investigation or Harassment?

When does protecting consumers become harassment? Even without any consumer complaint about any damage done the Florida Bar has the right to initiate an unauthorized practice of law investigation on their own; for the “potential” harm that could occur. Even though no one has complained of any harm, damages, error, or mistake caused or done by a document preparer, the Florida Bar can and does investigate document preparers on the slimmest excuse. Considering that there is no required consumer complainant, all document preparers are subject to being investigated at any time at the whim of the Bar.

The Florida Bar can and does initiate unauthorized practice of law complaints against document preparers for stating in their advertising things like:

• Using the word "legal" in their business name;
• Using the word "legal" on their website;
• Using the phrase "legal services" in their business name or website;
• Offering free consultations;
• Stating their years of prior experience as a paralegal;
• Referring to herself/ himself as a paralegal or legal asssistant;
• Stating their education, degrees earned;
• Stating that document services are a low cost alternative to the high cost of attorney fees;
• Using words such as "help", "assistance", and "solutions" to describe their services.

The Florida Constitution authorizes the Florida Supreme Court to regulate and govern the practice of law:

Florida Statute 454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate.—

(2) The Supreme Court of Florida, being the highest court of said state, is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.


The Florida Supreme Court has exclusive jurisdiction regulation of the Florida Bar, regulation of admissions to the Bar, and creating and amending the Florida Rules of Court, The Florida Supreme Court, in turn delegates the authority to investigate unauthorized practice of law to the Florida Bar. The Florida Bar, as an official arm of the court, is charged with the duty of considering, investigating, and seeking the prohibition of matters pertaining to the unlicensed practice of law and the prosecution of alleged offenders.

Florida Bar UPL Rules state:


10-2. DEFINITIONS RULE 10-2.1 GENERALLY

(a) Unlicensed Practice of Law. The unlicensed practice of law shall mean the practice of law, as prohibited by statute, court rule, and case law of the state of Florida.

10-5. COMPLAINT PROCESSING AND INITIAL INVESTIGATORY PROCEDURES RULE 10-5.1 COMPLAINT PROCESSING

(b) Review by Bar Counsel. Bar counsel shall review the complaint and determine whether the alleged conduct, if proven, would constitute a violation of the prohibition against engaging in the unlicensed practice of law. Bar counsel may conduct a preliminary, informal investigation to aid in this determination and, if necessary, may employ a Florida bar staff investigator to aid in the preliminary investigation. If bar counsel determines that the facts, if proven, would not constitute a violation, bar counsel may decline to pursue the complaint. A decision by bar counsel not to pursue a complaint shall not preclude further action or review under the Rules Regulating The Florida Bar. The complainant shall be notified of a decision not to pursue a complaint and shall be given the reasons therefor.