On May 19, Della Tarpinian sent FALDP a cryptic message, stating: “I have been charged with UPL in KY. I was charged with the same crime in 2003 and I won in a jury trial. They came after me again in 2010 and found me guilty, without a right to jury trial, behind closed doors at the KY Bar Association. Case is just like Rosemary Furman. Della”
She included a phone number, so I called. We had a long chat. We have corresponded since. The following paragraph is from a newspaper account which explains the Kentucky Bar's supposed reason for accusing Ms. Tarpinian of UPL:
“Court documents say Tarpinian’s lawyer testified to investigators he did not believe Tarpinian was giving legal advice to her clients. But the documents also say a special commissioner who reviewed some of Tarpinian’s work found information contained in the documents that had not been asked about on the questionnaires.
'Given the very simple questions asked in the questionnaire provided by (Tarpinian) and the absence of other questions where provisions are ultimately included in court documents, it is clear (Tarpinian) is interviewing and consulting with her customers regarding these provisions,” the special commissioner wrote. “She is offering counsel and advice on legal matters.'”
'Given the very simple questions asked in the questionnaire provided by (Tarpinian) and the absence of other questions where provisions are ultimately included in court documents, it is clear (Tarpinian) is interviewing and consulting with her customers regarding these provisions,” the special commissioner wrote. “She is offering counsel and advice on legal matters.'”
Apparently, in Kentucky, legal document preparers are not allowed to discuss with their customers any of the information needed to complete their documents. In Florida, providing the forms are Florida Supreme Court approved forms, a legal document preparer may talk to their customers as follows: (we'll talk about free speech, and commercial speech another time)
“Rule 10-2.1(a)(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.”
I beg to ask, how is it that the Special Commissioner has time to peruse Ms. Tarpinian's documents; and how is it that the Special Commissioner has the questionnaires at all? Documents filed in court are public record and easy enough to track down the typist/ legal document preparer/ scrivener. I suspect that in Kentucky, as in Florida, legal document preparers must add their contact information to the end of each form. The court opinion is here: http://caselaw.findlaw.com/ky-supreme-court/1565760.html
As it stands, Ms. Tarpinian has been found guilty of UPL by a Kentucky Bar kangaroo court. She has refused to pay the $5,000. fine ordered by that court, and has filed an appeal in federal court. An article by James Mayse, published on June 12, 2011, in the Owensboro, Kentucky, Messenger-Inquirer, states:
“Tarpinian denied she had ever given legal advice. But the Supreme Court ruled in late April: 'A person who continues to engage in the unauthorized practice of law following a KBA directive to discontinue may be held in contempt of court.' Tarpinian was given 30 days to pay a $5,000 fine or be cited for contempt.
Tarpinian’s filing with federal court says the action against her is an attempt to 'unconstitutionally regulate the occupation of law ... which is a common right.'
Tarpinian said she never received an official 'complaint,' only the letter from the Bar Association. 'How can you find me in contempt when there isn’t a complaint?' Tarpinian said. 'When I took (the petition) to federal court, they said, 'where is the complaint against you?’ There was never a complaint.'
Officials with U.S. District Court said a judge would have to examine Tarpinian’s petition and determine if it was eligible to be heard in federal court.
'(Tarpinian) can always file' a petition, said Vanessa Armstrong, clerk of courts for U.S. District Court in Louisville. 'Whether a case goes forward is up to the judge. It’s not uncommon for people to be unhappy with their (state) decision and file' in federal court, Armstrong said. 'A judge will review it and determine how to proceed.'
Tarpinian’s filing with federal court says the action against her is an attempt to 'unconstitutionally regulate the occupation of law ... which is a common right.'
Tarpinian said she never received an official 'complaint,' only the letter from the Bar Association. 'How can you find me in contempt when there isn’t a complaint?' Tarpinian said. 'When I took (the petition) to federal court, they said, 'where is the complaint against you?’ There was never a complaint.'
Officials with U.S. District Court said a judge would have to examine Tarpinian’s petition and determine if it was eligible to be heard in federal court.
'(Tarpinian) can always file' a petition, said Vanessa Armstrong, clerk of courts for U.S. District Court in Louisville. 'Whether a case goes forward is up to the judge. It’s not uncommon for people to be unhappy with their (state) decision and file' in federal court, Armstrong said. 'A judge will review it and determine how to proceed.'
In a May 31 response to the Supreme Court, Tarpinian wrote she was requesting the matter be moved to federal court within the 30 day period she was given to pay the $5,000 fine. Tarpinian is acting as her own attorney in the matter.
'I contacted a lawyer in Kentucky who said, ‘you’re not going to find a lawyer that’s going to go up against the KBA,' Tarpinian said.
" If the KBA's true concern is the offering of legal advice from someone other than a lawyer, they should have provided evidence and shown which questions on the docs need verification that the answers came from the client. The good old boys club seems to keep hanging on in some circles. Thanks KBA for showing your true colors and embarrassing the whole state. "
In Ms. Tarpinian's complaint she raises several procedural and constitutional defenses including violation of due process; forum shopping; illegal monopoly; and violation of civil rights under color of law or authority.
I want to add another UPL defenses to the list. How about – no victim, no crime? In the states which have criminalized UPL, as it is criminal in Florida and Kentucky, where is the injured party, where is the victim? Oh, I forgot, its the attorneys who are victimized every time a consumer chooses to go pro se.
