What do legal document preparers and teeth whitening technicians have in common?

More than you might think.

The U.S. Supreme Court released an opinion on February 25, 2015 - NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, PETITIONER v. FEDERAL TRADE COMMISSION - 574 U. S. ____ (2015) ruling in favor of non-dentists and against dentists and their coercive tactics to restrict trade.

North Carolina dentists took exception to upstart Teeth Whitening Services offering teeth whitening to consumers at a lower cost than offered by dentists. North Carolina dentists are regulated by the Board of Dental Examiners, which is made up of - you guessed it - mostly dentists. Are you starting to see the correlation? The Florida Bar regulates attorneys and is made up of Florida attorneys. Anyway, the dentists took to sending the Teeth Whitening Services threatening letters, including cease and desist letters, and threats of criminal punishment for their teeth whitening activities. Sound absurd? It is, and we live it.

We, as Florida legal document preparers, live under the constant threat of coercive threats from the Florida Bar UPL Committees targeting document preparers with unsupported allegations of the unlicensed practice of law (UPL). And although, the Florida Bar UPL Committees try their best to frame their investigations as protective of potential consumer harm - no dice. Members of the Florida Bar UPL Committees and some Florida attorneys would just as soon document preparers would all disappear and go away forever. Since that is unlikely to happen, instead, they "investigate" the potential harm that document preparers pose. The telling point is that there doesn't need to be any allegation of consumer harm to trigger an investigation. And there is no definition of the practice of law to begin with. So how can anyone be accused of the unauthorized practice of law, when the practice has never been defined. A UPL investigation can cost a document preparer thousands in legal fees; threats of jail; curtailment of freedom of speech (by the way commercial speech is protected as free speech); and administrative fines imposed as a stipulated settlement when the UPL Committee finally drops their investigation.

And above all, these UPL witch hunts damage consumers. Florida legal document preparers are harassed, sometimes to the point of closing their businesses, due to the unfounded investigations and threats of fines and jail time. Document preparers provide a valuable service to consumers who either cannot afford; or do not choose to afford attorney fees. Without document preparers, many consumers would go without any legal help as financially out of reach. Without document preparers many consumers would not be able to divorce; modify their child support; sue in small claims; or any number of things that document preparers can help with.

Following are excerpts from the Supreme Court opinion:

"Starting in 2006, the Board issued at least 47 cease-and desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers. Many of those letters directed the recipient to cease “all activity constituting the practice of dentistry”; warned that the unlicensed practice of dentistry is a crime; and strongly implied (or expressly stated) that teeth whitening constitutes “the practice of dentistry.” App. 13, 15. In early 2007, the Board persuaded the North Carolina Board of Cosmetic Art Examiners to warn cosmetologists against providing teeth whitening services. Later that year, the Board sent letters to mall operators, stating that kiosk teeth whiteners were violating the Dental Practice Act and advising that the malls consider expelling violators from their premises...."

and:

"...[T]he ALJ [Administrative Law Judge] conducted a hearing on the merits and determined the Board had unreasonably restrained trade in violation of antitrust law. On appeal, the FTC again sustained the ALJ. The FTC rejected the Board’s public safety justification, noting, inter alia, “a wealth of evidence . . . suggesting that non-dentist provided teeth whitening is a safe cosmetic procedure.” ..."

and

"...When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest...."

and

"...By statute, North Carolina delegates control over the practice of dentistry to the Board. The Act, however, says nothing about teeth whitening, a practice that did not exist when it was passed. After receiving complaints from other dentists about the nondentists’ cheaper services, the Board’s dentist members—some of whom offered whitening services—acted to expel the dentists’ competitors from the market. In so doing the Board relied upon cease-and desist letters threatening criminal liability, rather than any of the powers at its disposal that would invoke oversight by a politically accountable official.... "

"...The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies...."

You can read the full opinion here.

Comments?

Net Neutrality - VICTORY!

Sent from MoveOn:

Dear MoveOn member,

It's time to jump for joy! We just made history. Together, we literally just saved the Internet from a corporate takeover.

The Federal Communications Commission just stood up to Comcast and Verizon and voted for real Net Neutrality—no fast lanes for the rich and slow lanes for the poor.¹

This unlikely victory has been ten years in the making, at least. How did we get here? In a word (okay, in two words)—people power.

MoveOn members joined a remarkable array of allies to do what many considered politically impossible. We took on one of the most powerful lobbies in Washington—the cable industry—and through organizing, creativity, and persistence, we won. 

We made a thank-you card for the FCC commissioners who stood with Internet users everywhere and voted for real Net Neutrality today. 

Will you add your name to the thank-you card, and then invite your friends to add their names too? 

This card is for you, too—the MoveOn community that for a decade has fought for common sense and equality on the Internet. 

So here's what just happened: In a party-line vote, the FCC voted to use the simplest, clearest, most legally sound tool to preserve Net Neutrality. It's called Title II, and it allows the FCC to treat the Internet like a public utility, protecting it for all users.

Experts have long agreed that Title II reclassification is the commonsense way to go, but the extreme opposition of the wealthy telecom industry—who hoped to profit from charging for fast lanes—made the clear solution seem politically impossible to many even a year ago.

But grassroots leaders raised their voices for the commonsense solution and built a movement that brought together millions of Americans of all political stripes and proved too powerful for even the seemingly all-powerful telecom lobby.

It's worth taking a brief look back a little farther to appreciate how we got to today.

In 2005, President Bush's FCC unsurprisingly sided with the big cable companies to begin unraveling one of the founding principles of the Internet—that all content would be treated equally. When Congress tried to permanently change the rules to favor the telecom industry, the Save the Internet Coalition formed, bringing together unlikely allies such as MoveOn.org and the Christian Coalition.² (For a bit of history, check out this 2006 MoveOn petition—MoveOn's first on the issue.) Together we stopped Congress from doing permanent damage then.

As a presidential candidate, Barack Obama supported net neutrality. After he was elected, the FCC commissioners he appointed passed new open Internet rules meant to protect Net Neutrality—but they failed to reclassify the Internet as a public good, and in 2010, the order was struck down in court (in a case called, not surprisingly, Comcast v. FCC).³ In January 2014, an appeals court confirmed that ruling. We were back to square one, with Verizon and Comcast on offense.

When President Obama's next FCC chair, Tom Wheeler, introduced new rules in April 2014 that would have made things even worse, we were ready. 

Over the past year, Americans like you submitted four million comments to the FCC and made tens of thousands of phone calls to Congress and to individual phone lines at the FCC. Allies occupied the FCC's front lawn and blocked the FCC chairman's driveway. Civil rights organizers shaped public opinion by telling personal stories, not relying on corporate media. 

We rallied outside FCC field offices that never hear from the public. We shared our stories—of artists, entrepreneurs, teachers, parents who rely on an equal playing field online for our livelihoods and to make a difference in the world. We called on President Obama to fulfill his promise to protect Net Neutrality—and he did. 

President Obama sided with us for reclassification. Now the FCC is siding with us. We've won.

Congress will try to undo this, but we'll keep fighting, and we'll keep winning.

Net Neutrality is fundamental to the ability of grassroots activists to create their own media when mainstream corporate media ignores our stories. When our community wins something like this, it's important to take a moment to celebrate. And when government agencies and politicians stand with us, it's important to thank them. 

Click here to add your name to the thank-you card to the FCC, and share the victory with your friends online—on the open Internet. 

This victory is ours. Let's savor it, and then let's keep defending the Internet.

Thanks for all you do.

–Maria, Victoria, Jadzia, Milan, and the rest of the team

Sources:

1. "In Net Neutrality Victory, F.C.C. Classifies Broadband Internet Service as a Public Utility," The New York Times, February 26, 2015 http://www.moveon.org/r/?r=303188&id=109060-19434813-wW9ZiKx&t=7 

2. "How the Christian Coalition and MoveOn Helped Save Net Neutrality: A Buried Story of a Powerful Coalition," The Huffington Post, February 25, 2015 http://www.moveon.org/r/?r=303182&id=109060-19434813-wW9ZiKx&t=8 

3. "The Net Neutrality Battle Has Been Lost. But now we can finally win the war," Slate, January 14, 2014 
http://www.moveon.org/r/?r=303183&id=109060-19434813-wW9ZiKx&t=10 

Want to support our work? We're entirely funded by our 8 million members—no corporate contributions, no big checks from CEOs. And our tiny staff ensures that small contributions go a long way. Start a monthly donation here or chip in a one-time donation here.

Access to Civil Justice Commission - Administrative Order

The following order was signed by Florida Supreme Court Chief Justice Jorge Labarga on November 24, 2014.

WHEREAS, the American and Florida judicial systems are founded upon the fundamental principle that justice should be accessible to all persons, the advancement of which is of profound interest to the Supreme Court of Florida; and

WHEREAS, access to civil justice for lower income and disadvantaged persons is a critical challenge for the legal system, especially in difficult economic times; and

WHEREAS, the number of self-represented litigants has increased significantly over the past decade with the majority of family law matters in most states now including at least one unrepresented party, some of whom are unable to prepare court documents and effectively present their positions in court proceedings; and

WHEREAS, the population that is eligible for Legal Services Corporationfunded legal services has grown dramatically in recent years while at the same time federal funding for the Legal Services Corporation declined approximately seventeen percent from 2010 to 2012; and

WHEREAS, the Florida Interest on Trust Accounts Program also provides funds in support of legal assistance for the poor but is experiencing severely reduced revenue as a result of historic low interest rates; and

WHEREAS, the Florida state courts have diligently endeavored since the 1990’s to develop forms, instructions, and other self-help resources in order to afford fair and timely resolution of cases involving self-represented family law litigants; and

WHEREAS, other entities in the Florida justice system have likewise endeavored within their respective scope of authority to improve the availability and delivery of judicial and legal services to lower income, disadvantaged, and self-represented individuals; and

WHEREAS, despite these noteworthy and substantial efforts, Floridians continue to encounter barriers when seeking meaningful and informed access to the civil justice system; and

WHEREAS, the Supreme Court of Florida recognizes the importance of responding to the unmet legal needs of low and moderate income Floridians, the increasing complexity of civil legal services delivery, the importance of access to civil justice in the proper functioning of our democracy, and the need for leadership and effective coordination of access to civil justice efforts in Florida; and

WHEREAS, approximately thirty states and the District of Columbia have established access to justice commissions for the general purpose of collectively identifying and removing barriers to civil justice for low-income and disadvantaged persons; and

WHEREAS, many organizations throughout the state share a commitment to improving access to justice and, as the head of the judicial branch, the Supreme Court of Florida is the logical entity to create a commission to study access and serve as the umbrella organization for efforts to enhance access to civil justice in Florida.

NOW, THEREFORE, the Florida Commission on Access to Civil Justice is hereby established to study the remaining unmet civil legal needs of disadvantaged, low income, and moderate income Floridians. In conducting its work the Commission should consider Florida’s legal assistance delivery system as a whole, including but not limited to staffed legal aid programs, resources and support for self-represented litigants, limited scope representation, pro bono services, innovative technology solutions, and other models and potential innovations. The Commission should encompass the viewpoints of multiple constituencies and stakeholders and not be limited to those of any one particular institution.

During its term, the Commission shall perform the following tasks:

1. Provide a forum for discussion among the judicial branch, legislative branch, executive branch, the civil legal services and pro bono community, Bar leaders, funders, the business community, and other interested stakeholders, about issues affecting access to civil justice for disadvantaged, low income, and moderate income Floridians.

2. Identify and examine barriers that impede access to civil justice for disadvantaged, low income, and moderate income Floridians.

3. Determine how to promote coordination of legal services delivery to low income Floridians, for optimum efficiency and effectiveness.

4. Consider and evaluate components of a continuum of services for the unrepresented, taking into account consumer needs and preferences. Such components might include interactive forms; unbundled legal services; the involvement of court, law, and public libraries; and other innovations and alternatives.

5. Examine ways to leverage technology in expanding access to civil justice for disadvantaged, low income, and moderate income Floridians.

6. Identify and build partnerships among the courts, members of the private bar, providers of legal services, and other stakeholders who are engaged or interested in expanding access to civil justice for disadvantaged, low income, and moderate income Floridians.

7. Examine how available resources might be maximized and identify how additional resources might be procured in order to provide stable funding in support of services that enhance access to civil justice for disadvantaged, low income, and moderate income Floridians.

The Florida Commission on Access to Civil Justice shall submit an interim report to the Court no later than October 1, 2015, and a final report and recommendations to the Court no later than June 30, 2016. Copies of the interim and final reports should also be provided to the Governor of Florida, the President of the Florida Senate, and the Speaker of the Florida House of Representatives. In its final report, the Commission should include recommendations on the need for the establishment of a permanent access to justice commission in Florida.

Members have been selected based upon their experience within the Florida justice system and their anticipated commitment. These individuals offer a diversity of perspectives and expertise that will enable the Commission to meet its overall mission and specific objectives. The following persons are hereby appointed to the Commission for terms that expire on June 30, 2016:

The Honorable Jorge Labarga, Chair
Chief Justice, Supreme Court of Florida

Unbridled Pursuit of Liberty (UPL)

Consumers and pro se litigants -- this affects you. If document preparers are harassed by Florida Bar UPL Committees with unfounded allegations of "potential harm" document preparers may cease to exist. Florida legal document preparers represent a low cost alternative for legal services. Not a substitute for an attorney -- an alternative. Some consumers cannot manage to pay attorney's fees, and lacking some sort of assistance, typically go without taking any action at all. The results can be devastating to them, their finances, and their families.

We owe it to ourselves and our children to continue to expect, no not only "expect" -- demand, that we live in a free society. To expect and demand that our freedoms are not unreasonably curtailed by our government. America is the land of the free, albeit with plenty of warts and wrinkles, we are still the greatest country on the planet. So far so good - we can travel when and where we want, with few exceptions; we can marry as we please; divorce as we please; have as many children as we can afford; work wherever we can get hired; start a business; get an education; say what we want to whom; worship as we please; and bear arms.

Consider the reasons colonists came to America ... they were poor, oppressed, thrown out of debtors prison onto the streets. They came across the ocean to the new world for a new beginning, a chance for a new life and for freedom. Besides the Indians, who were here first, these colonists are our forefathers and our examples. Their spirits are imprinted on our collective DNA. Consider the mentality--"one door shuts and another one opens"; "this branch in the road is a dead end, so let's chop a new one through the jungle"--is characteristically American. We are rugged individualists, fiercely independent, watchful of the government, and endlessly resourceful.

So why would we be accepting of the government's paternalistic stance claiming that they know better than us, as to how we might be harmed? There is possible harm in everyday life, from crossing the street to eating a peach. You can drown in a tea spoon of water and be electrocuted turning on a light. Yet, the government allows us and expects us to navigate life and make our own decisions based on the potential risks. And rightly so. But, when it comes to the possible harm that could be done by a non-lawyer document preparer, our government is there to [ostensibly] protect consumers from potential possible harm.

Absent any consumer complaint; and despite no evidence of harm -- the very fact that there may be potential harm is cause enough for the Florida Bar to unleash their power against document preparers. And their power is considerable. According to the "2012 Survey of Unlicensed Practice of Law Committees" the Florida Bar has the largest annual budget of any state for prosecution and investigation of the unauthorized practice of law (UPL) -- an astounding 1.6 million.

An inadvertent mistake of language in advertising, a document preparer referring to himself as a paralegal, can trigger an investigation. The letter from the Florida Bar typically begins - you may be engaging in the unauthorized practice of law ... and continues to explain that UPL is a third degree felony with fines up to $5000 per incident and up to five years in prison. Intimidating and frightening to a document preparer whose only crime was to call himself a paralegal.

Without a case filed in circuit or criminal court, the Florida Bar UPL Committee can and often does initiate an investigation and prosecution against a document preparer. No consumer complaint required.

In addition, attorneys have standing to initiate a UPL case against a document preparer. The UPL Committees are apparently given the right to prosecute UPL cases through the Florida Supreme Court despite the criminalization of UPL. At the investigation stage, there is no court case filed, instead the case is assigned a TFB case number, which stands for - The Florida Bar. Hearings are held by the Florida Bar UPL Committee where the document preparer is questioned under oath behind closed doors at the courthouse; and typically, the document preparer is not advised of the nature of the hearing and often appears pro se. Yet another intimidating tactic employed by the UPL committee under the auspices of investigation and prevention of potential consumer harm; is to subpoena a document preparer's records to include all documents prepared for their customers within a specified time period. The specified time period is often months or even years.

Although the document preparers, many of whom specialize in family law document preparation, acknowledge their preparation on each form prepared at the time of preparation by including their information on each form; and the documents prepared are usually public record, having been filed in the courts anyway; the prospect of having to produce all documents for the UPL Committee is chilling. The intrusive nature of the requests amount to an overreaching fishing expedition; and undermine the trust between the document preparer and their customers. The further prospect of someone from the UPL Committee contacting a document preparer's customers to ask them whether they received legal advice is deep freeze. Many consumers and apparently many UPL Committee members don't distinguish well between legal advice and legal information.

I titled this essay - The Unbridled Pursuit of Liberty (UPL) for the sole purpose of retooling the acronym. There is actual consumer harm resulting from unauthorized practice of law investigations and that harm is done to consumers by the UPL Committees. The foxes overseeing the hen house. In intimidating document preparers out of business, consumers lose.

Consider the soon to be divorced wife with small children whose powerful philandering husband refuses to pay the bills during divorce proceedings to starve her out in an ill advised effort to force her to take him back. The wife, in this scenario, having depended on her husband financially has no means to afford an attorney, and also does not qualify for legal aid if there is no domestic violence and she has more than $500 to her name -- has no choice but to proceed pro se. A document preparer can help by assisting this woman with procedure, preparing professional documents, and including the requests in the petition or answer that this pro se litigant requests and desperately needs to level the playing field.

Or consider the unwed father left reeling after his first child support hearing before a General Magistrate. The unwed father welcomed the chance to go to court to finally be able to regularly see his child; and voluntarily provided for his child since day one without any court order. But, he quickly learns that the voluntary payments don't count; and the child support hearing has nothing whatsoever to do with child custody. A document preparer could assist this father by preparing documents to have his case heard in circuit court with the outcome that he would be named the legal father with full rights of paternity.

This wife and this unwed father would suffer harm if document preparers cease to exist. These two consumers are minute examples of the sea of consumers that cannot afford to hire an attorney, but need some sort of legal help. The wife could become homeless with children unless she manages to obtain temporary support pending the final judgment of divorce. The unwed father remains at the mercy of his baby's mama as to when he sees his child -- harming not only the unwed father, but the child as well.

In 1859, John Stuart Mill, wrote in "On Liberty" the following words:

"The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."

— John Stuart Mill, 

Mill, John Stuart (1859). On Liberty (2 ed.). London: John W.Parker & Son.

Time to readjust the sails and head for reality. There is no other option.