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.