On Unauthorized Practice of Law

Citizens and consumers have no idea of the daily struggle we go through to uphold their rights. Legal document preparers serve legal consumers who either choose not to, or cannot afford to hire an attorney. Those who choose not to hire an attorney often feel that, in the past, they did not receive valuable services for their money. Others who can afford to hire an attorney, but who decide not to, that their legal matter is straight forward enough to handle themselves.

Consumers who use legal document preparers because they cannot afford an attorney, are, by far, the largest group to use alternative legal services providers. Pro bono attorney services, and free legal aid services are often unavailable. 

Florida legal document preparers must be careful to avoid even appearing to be engaged in the unauthorized practice of law (UPL). The rules are not clear. And the rules that exist are rules made up and enforced by the Florida Bar and the Florida Supreme Court. In Florida, UPL is a third degree felony, that can include jail time and fines. The Florida Constitution grants to the Supreme Court the power to regulate attorneys, in turn the Supreme Court delegates the investigation, regulation, and enforcement of UPL to the Florida Bar. 

The Florida Bar, of all of the states, has the largest budget for UPL prosecution – over 1.5 million annually. Some of those prosecuted are certainly not only guilty of UPL, but also out and out fraud. There are other criminal laws in place for these prosecutions. Certainly, as in any industry, there are individuals who take money from the unsuspecting and disappear; or pretend to be what they are not.

From my personal knowledge, I know of a man who pretended to be an orthopedic surgeon. He operated on my former husband – twice. We only discovered the doctor was fake, by watching a TV investigative report. I once worked at a career college, which trained people to be massage therapists. Only when the director of that college was fired, did it come out that he had been lying the whole time about himself. He never had a massage therapy license. Today, I know of an individual who works for a commercial property management company and claims to be a licensed contractor. She's not. I looked it up. Some of these fraudsters masquerading as something they are not cause harm – or could cause harm. Likewise, people who pretend to be attorneys and are not, can cause harm.

But, let's be clear. There are laws against pretending to hold a professional license. Most Florida legal document preparers (LDP's) try to make it perfectly clear that they are not attorneys. Most LDP's display in all of their advertising that: they are not attorneys; they do not offer legal advice; and they cannot represent someone in court.

I know of several Florida Bar UPL investigations:

In 2008, Katie Vickers, was investigated for UPL after helping a member of her church pursue his worker's compensation claim. The attorney for Ms. Vickers' friend's employer initiated the UPL investigation. The friend was illiterate and indigent, and Ms. Vickers was helping him for free.

A member of The Florida Association of Legal Document Preparers was recently investigated after preparing a motion for civil contempt/ enforcement for family court upon the instructions of her customer. The attorney for the defendant filed a motion to dismiss; and cried UPL. Among other allegations, the attorney claimed that the motion for contempt was a “nullity” because it was prepared by a nonlawyer.

Another LDP received a notice letter from the Florida Bar, UPL investigation committee, stating that she may not display on her website the fact that she earned a Bachelor's Degree in Legal Studies.

Yet another LDP was admonished by the Florida Bar for writing a consumer complaint letter on behalf of a customer. The letter writing was deemed “legal representation” by the UPL committee.

The poster child for UPL in Florida is Rosemary Furman. Her case dates back to the 1970's, when she prepared divorce documents for women who were victims of domestic violence. The women could not receive any police protection from their battering husbands, while still married, so Ms. Furman prepared divorce petitions for them.

None of these incidents caused harm to consumers. The only harm caused was to attorneys, as legal document preparers are perceived to be invaders of attorneys' sacred turf. The Florida Bar has also been known to be so over vigilant as to troll craigslist searching for legal document preparers that make a mistake in their advertising. Florida legal document preparers as per the Florida Bar rules are not allowed to refer to themselves as independent paralegals; paralegals; or legal assistants. Some legal document preparers do so by mistake, and to their peril. The letters from the Florida Bar arrive, demanding that their advertising be removed; stating that the LDP “may be” engaging in UPL; and requesting that the LDP sign a letter acknowledging their mistake. Sometimes the letters escalate into threats of fines and jail. Give it a rest, Florida Bar.

I have a suggestion. The Florida Bar should refrain from investigating and prosecuting allegations of unauthorized practice of law aimed at legal document preparers until definitions are clear. Since there is notoriously no definition for “the practice of law”, then there also cannot be a concise definition of the unauthorized practice of law.

Defining the Practice of Law

Practitioners in every industry, except for the legal profession, can clearly state a definition of their profession. Doctors to ditch diggers; kings to carpenters; only the legal profession is unable or unwilling to clearly define their services. Apparently preferring to remain cloaked in mystery, the definition of the practice of law is either so broad as to be meaningless or so obscure as to be incomprehensible.

According to the American Bar Association, Florida's definition of the practice of law is based on the following case:

State ex rel. The Florida Bar v. Sperry, 140 So.2d 587, 591 (1962)

Many courts have attempted to set forth a broad definition of the practice of law. Being of the

view that such is nigh onto impossible and may injuriously affect the rights of others not here

involved, we will not attempt to do so here. Rather we will do so only to the extent required to

settle the issues of this case.

It is generally understood that the performance of services in representing another before the

courts is the practice of law. But the practice of law also includes the giving of legal advice and

counsel to others as to their rights and obligations under the law and the preparation of legal

instruments, including contracts, by which legal rights are either obtained, secured or given away,

although such matters may not then or ever be the subject of proceedings in a court.

We think that in determining whether the giving of advice and counsel and the performance of

services in legal matters for compensation constitute the practice of law it is safe to follow the

rule that 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.

After reading, rereading, and parsing the above, I am no closer to grasping a clear definition of the practice of law.

In a 2002 article, “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW”, Catherine J. Lanctot, states:

“Indeed, when confronted with the daunting task of giving meaning to this phrase,[the unauthorized practice of law versus the practice of law] most courts also have taken an ad hoc approach, sometimes asserting confidently that, while the phrase is incapable of definition, the particular activities before it nevertheless can be said to meet any such definition.

One wonders whether such judicial default is motivated by Justice Potter Stewart’s most famous utterance about another ineffable legal concept—pornography—and that now- clichéd dictum: 'I know it when I see it.'”

If lawyers, judges, and the legal profession cannot clearly define the practice of law; how can they define the “unauthorized” practice of law? If we don't know what “it” is; then we cannot say what of “it” is unauthorized.

Florida Bar Rules Proposal Restricts Citizens Right to Court Access

America, like other democracies is based on a social contract. We agree, at least in theory, to trade some of our freedoms for an orderly society. In short, we agree to the idea of having laws to govern us. And, although, we much rather that the laws govern others, we, in theory, agree that the laws govern us as well. We are bound to follow laws of which we have no knowledge. Ignorance of the law is no excuse, yet it is impossible to know all the laws.

Our lawmakers pass laws at a dizzying rate. We have laws to govern the minutiae of our lives. Some of the laws are bewildering, others simply strange. Some of Florida's peculiar laws are: The state constitution allows for freedom of speech, a trial by jury, and pregnant pigs to not be confined in cages. Women may be fined for falling asleep under a hair dryer, as can the salon owner. Florida deals with its prostitution problem by giving prostitutes spending money, a five-year banishment, and a bus ticket out of town.

Although there are many laws and many lawyers, there is precious little low cost legal assistance for middle Americans. Non-profit legal aid societies can only assist some of the citizens who request help. Bound by their by-laws and funding most of the non-profit legal aid centers are overwhelmed, and cannot serve many citizens who qualify simply because the centers do not have the staff. Most legal aid centers are also limited to the types of cases which they accept. And their income guidelines are almost always tied to federal poverty guidelines.

Attorney fees are at an all time high, an anomaly considering the fact that the number of practicing attorneys is also at an all time high. A Florida divorce can easily cost each party between $5,000 to $10,000 in attorney fees; and more if there are many issues in dispute. A conservative estimate of average attorney fees is $200. per hour; and can be as much as $400. 

Median income in Florida hovers around $40,000. per year, which works out to around $770. per week gross income. So, someone earning Florida's median income could spend over a week's gross pay on about four hours of average priced attorney fees. “Median” income means that half of the population earns more than the median ($40,000); and half earns less. The very lowest earners, and the indigent (those with little or no income) likely qualify for free legal services. The federal poverty income level for a single individual is around $10,000. per year or less. 

 

So, what do all those moderate income Florida citizens do? How do all the people who earn more than nothing, and less than the median, pursue their legal rights, solve a legal issue, or settle a dispute? They have two choices: give up; or do it themselves.

Sadly, many consumers do give up. Many see no way to pursue their rights, so they don't. Others, who have the time and the education, teach themselves how to navigate the court system. They find the correct forms, do their own research, and go it alone. Many consumers, who have the ability to educate themselves about their own legal issues, combine their acquired knowledge with document preparation assistance. Other legal consumers, who need nothing more than assistance in completing forms, also seek out legal document preparers to help them.

The services of a legal document preparer are not a substitute for attorney services. But, the services of an attorney are so far beyond the financial means of many citizens, they have no choice. For self-represented litigants who need nothing more than the correct form, filled out correctly, and filed in the proper way, legal document preparation services are ideal. These citizens, confident of and knowledgeable about their legal rights, need nothing more. These citizens are sophisticated enough to be able to stand up in front of a judge and state their case, with confidence and conviction.

Other citizens, who are neither confident nor knowledgeable about their legal rights and issues, also use the services of legal document preparers. They have no choice. Often their legal issues involve custody of their children; child support; or divorce. Important family issues – private matters that must be sorted out in court.

There are but a few bright line rules that govern the conduct of legal document preparers in Florida. Legal document preparers must not give legal advice. Legal document preparers must not hold themselves out to be attorneys. The Florida Constitution, Article V, Section 15 grants the Florida Supreme Court power and jurisdiction to regulate attorneys:

“ Attorneys; admission and discipline.–The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”

Rules that govern “nonlawyer” legal document preparers are in Rule 10 of the Florida Bar Rules. The authority for the Florida Bar to investigate and prosecute cases of the unlicensed practice of law (UPL), are within a series of Supreme Court opinions; Florida Bar Advisory opinions; and the Florida Bar Rules.

In a 1989 U.S. 11^th Circuit court case, Serena Dunn vs. The Florida Bar, 889 F. 2d 1010 (1989), Serena Dunn, who is illiterate, and a class of similarly situated individuals, filed a complaint for declaratory and injunctive relief against the Florida Bar and the Florida Supreme Court based on the plaintiffs difficulty in accessing the Florida court system. The plaintiffs stated that they were unable to afford the services of attorneys to assist them; and that they were unable to proceed on their own because of various disabilities including blindness, illiteracy, or lack of English language skills. 

 

The constitutional question was never resolved. Serena Dunn, et al, voluntarily dismissed their lawsuit when the Florida Bar voluntarily agreed to change the rules governing nonlawyers and the unlicensed practice of law. This rule came into effect:

Florida SC 70.502, July 9, 1987

(b) Definition of UPL. The unlicensed practice of law, as prohibited by statute, court rule, and case law of the state of Florida. For purposes of this chapter, it shall not constitute the unlicensed practice of law for nonlawyers to engage in limited oral communications to assist individuals in the completion of legal forms approved by the Supreme Court of Florida. Oral communications by nonlawyers are restricted to those communications reasonably necessary to elicit factual information to complete the form(s) and inform the individual how to file such form(s).

The Serena Dunn Circuit court case and the Florida Supreme Court Opinion both include language further defining and broadening the duties nonlawyers are allowed to perform. Alan B. Morrison, attorney for Serena Dunn, asked the court to make clear, “... that nonlawyers may tell the individuals, for example, how many copies must be filed, what the filing fees are, what is the proper method of payment, how long the typical period is before a hearing will be scheduled, and other matters of a routine administrative nature ...” Similar language was included in the Supreme Court ruling. The only language in the Bar rule that is apparently derived from that specific request is: “...and inform the individual how to file such form(s)”.

The Circuit Court case was brought in the aftermath of the Rosemary Furman debacle. Furman owned Northside Secretarial Services in Jacksonville where she prepared divorce documents for victims of domestic violence. The Florida Bar charged Furman with the unlicensed practice of law; found her guilty of indirect contempt of court; ordered her to close her business; and sentenced her to 60 days in Duval County jail. No consumer ever complained about Ms. Furman's business. In fact, the Florida Bar hired a former FBI agent to track down over 100 of Furman's customers, who all refused to testify against her.

The Florida Bar continued their prosecution of Ms. Furman. She was spared serving jail time only through an eleventh hour pardon signed by Governor Bob Graham. The Governor took action because of the public outcry. Letters poured into Tallahassee, and the media was in a frenzy, because the Florida Bar was going to lock up in jail a 60 year old woman for doing no more than assisting people with their court paperwork. The Florida Bar was unwilling to go through yet another barrage of adverse publicity so they settled with the attorneys for Serena Dunn, et al, in Circuit Court. But, the Circuit Court never resolved the constitutional question that the Serena Dunn case posed. 

 

The Florida Bar rules surrounding the unlicensed practice of law were mostly unchanged for many years. As of April 2011, the following is posted on the Florida Bar's website, www.floridabar.org :

1. It shall not constitute the unlicensed practice of law for a nonlawyer to engage in limited oral communications to assist a person in the completion of blanks on a legal form approved by the Supreme Court of Florida. Oral communications by nonlawyers are restricted to those communications reasonably necessary to elicit factual information to complete the blanks on the form and inform the person how to file the form. Legal forms approved by the Supreme Court of Florida which may be completed as set forth herein shall only include and are limited to forms approved by the Supreme Court of Florida pursuant to rule 10-2.1(a) [formerly rule 10-1.1(b)] of the Rules Regulating The Florida Bar, the Family Law Forms contained in the Florida Family Law Rules of Procedure, and the Florida Supreme Court Approved Family Law Forms contained in the Florida Family Law Rules of Procedure.

The following is the proposed (amended and expanded) rule as of April 2011. The language in bold in this version of the rule, is nearly identical to the language in the 1987 rule. The bold face type is similar to the language of the existing rule -- the underlined portions are especially troublesome.

(a) Supreme Court Approved Forms. It shall not constitute the unlicensed practice of law for a nonlawyer to engage in limited oral communication to assist a self-represented person in the completion of blanks on a Supreme Court Approved Form. In assisting in the completion of the form, oral communication by nonlawyers is restricted to those communications reasonably necessary to elicit factual information to complete the blanks on the form and inform the self-represented person how to file the form. The nonlawyer may not give legal advice or give advice on remedies or courses of action. Legal forms approved by the Supreme Court of Florida which may be completed as set forth herein shall only include and are limited to the following forms, and any other legal form whether promulgated or approved by the Supreme Court is not a Supreme Court Approved Form for the purposes of this rule:

1. forms which have been approved by the Supreme Court of Florida specifically pursuant to the authority of rule 10-2.1(a) [formerly rule 10-1.1(b)] of the Rules Regulating The Florida Bar;
   
2. the Family Law Forms contained in the Florida Family Law Rules of Procedure; and
   
3. the Florida Supreme Court Approved Family Law Forms contained in the Florida Family Law Rules of Procedure.
   

(b) Forms Which Have Not Been Approved by the Supreme Court of Florida.

1. It shall not constitute the unlicensed practice of law for a nonlawyer to sell legal forms and kits and engage in a secretarial service, typing forms for self-represented persons by copying information given in writing by the self-represented person into the blanks on the form. The nonlawyer must transcribe the information exactly as provided in writing by the self-represented person without addition, deletion, correction, or editorial comment. The nonlawyer may not engage in oral communication with the self-represented person to discuss the form or assist the self-represented person in completing the form.
   
2. It shall constitute the unlicensed practice of law for a nonlawyer to give legal advice, to give advice on remedies or courses of action, or to draft a legal document for a particular self-represented person. It also constitutes the unlicensed practice of law for a nonlawyer to offer to provide legal services directly to the public.
   

The following language from the proposed rule is troublesome.

Legal forms approved by the Supreme Court of Florida which may be completed as set forth herein shall only include and are limited to the following forms, and any other legal form whether promulgated or approved by the Supreme Court is not a Supreme Court Approved Form for the purposes of this rule.

Does this mean that when a self-represented consumer uses forms which have not been approved by the Florida Supreme Court, the self-represented consumer may not seek any assistance from a legal document preparer? And what if, the form that the consumer needs is not on the Supreme Court approved list, and the consumer needs help? 

 

There are many instances when a consumer might need a form which is not on the Supreme Court's approved list. There are very few motion forms --- no motion for telephonic hearing, no motion for continuance, no motion for hearing, no motion to compel, no motion to dismiss. Likewise, there are answers that are not on the approved list – no answer to petition to relocate with children; and, no answer to petition for child support. What if a consumer cannot afford an attorney; and cannot do it himself? Does he go without? Has that consumer just been denied access to the court?

The following language, which refers to unapproved forms, is also troublesome.

The nonlawyer must transcribe the information exactly as provided in writing by the self-represented person without addition, deletion, correction, or editorial comment. The nonlawyer may not engage in oral communication with the self-represented person to discuss the form or assist the self-represented person in completing the form. 
 

This language is a direct contradiction to a rule clarification posted on the Florida Bar site, dated June 1, 2007, which states: 

 

“Bar clarifies policy on nonlawyer help in filling out forms

Spelling and grammar checking immigration forms is OK; giving legal advice is still prohibited

'The Florida Bar will not prosecute a nonlawyer for the unlicensed practice of law for the use of computer software spell-checking, grammar-checking, or proofreading utilities to correct spelling or grammatical errors where the spelling or grammatical error is so obvious that the correction does not require discussions with the customer. This policy does not prohibit The Florida Bar from investigating the activities of a nonlawyer to determine what services are being provided.'” 

 

So is the Florida Bar, in its proposed rule, trying to undo that clarification made four years ago?Does it serve the smooth operation of the court system to support pro se litigants spelling and grammar errors?

According to the Adult Literacy League, as posted on their website:

“One in every five Central Florida adults reads at or below the 5th grade level. For them, simple everyday tasks present real problems. Reading product labels, following street signs or filling out job applications can be difficult and frustrating.” And the average reading level for adults throughout the country is between 8^th and 9^th grade level.

The instructions for the Florida Supreme Court approved forms are written at around a twelfth grade level. Florida has traditionally lagged behind the national average in adult literacy. I suspect there are many present day Serena Dunns. Although Serena Dunn was illiterate, her co-plaintiffs, Wiggs and Evans, were literate.

Attorneys in the Serena Dunn case relied on precedent, including Boddie v Connecticut, which addresses the right of indigent people to access the court system, when the court filing fees are unaffordable. And, Serena Dunn's attorneys, also relied on Johnson v Avery, which addresses the rights of prison inmates to assist other inmates in preparing documents to be filed in court, specifically writs of habeas corpus. 

 

Among other claims, the Serena Dunn case stated the reasons for bringing the suit on behalf of a class of plaintiffs including Dunn, Wiggs and Evans; and other similarly situated individuals, consisting of all present and future residents of the Fourth Judicial Circuit of Florida; and who:

“... presently desire, or in the future may desire, to exercise their fundamental right to obtain a dissolution of marriage;

… are unable to do so without the assistance of another person because they lack the skills, knowledge, familiarity with the court system, self-confidence, and other abilities required to appear pro se;

… are unable to obtain the services of a lawyer because they cannot afford to pay the charges of a lawyer and because no lawyers are available to serve them on a pro bono or reduced fee basis;

… are able to afford the services of persons who, although not members of the Bar, are able to provide them the assistance they need to obtain a dissolution of their marriage and for which they charge members of the plaintiff class an amount which the class members can afford; but who are unable to utilize the services of such lay assistants because of the instructions against lay assistants providing such services which are enforced by defendants.”

Florida legal document preparers often must tread a careful line between providing their services to consumers who want and need their services; and avoiding accusations of violating the laws surrounding the unlicensed practice of law. A conviction for the unlicensed practice of law in Florida is a third degree felony; sentences may include fines and incarceration. 

 

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.

For more information on citizens rights to access the court system; and other similar subjects, please visit The Florida Association of Legal Document Preparers, www.faldp.org . And, remember:

“Bad laws are the worst form of tyranny.”
Edmund Burke

Boddie v Connecticut, 401 US. 371, 91 S. Ct. 780, 28 L. Ed. 2D 113 (1971),

Johnson v Avery, 393 U.S. 483, 89 S. Ct. 757 21 L. Ed. 2D 718 (1969)