Unauthorized Practice of Law - Another Point of View

I have an idea for illustrating the absurdity of the current tenor of enforcement against the “unauthorized practice of law” in Florida. It will probably never convince the Florida Bar to let up on the persecution of legal document preparers, but it might make some people realize just how hypocritical the Florida Bar is.

As I learned firsthand from a recent lawsuit against me, law is a complicated field. It has many specialties. When I needed to hire an attorney in another state to help me with that lawsuit, the first law office I called directed me to the local “expert” attorney in that particular specialty field of law. In that small jurisdiction, he qualified as the local expert in that specialty area because he had successfully prosecuted a case all the way to that state’s Supreme Court. It makes some sense: If you have an auto accident, you would probably do better if you had an attorney who specialized in auto accident cases. (To further illustrate my point, I’ll refer to the tort I was sued for generically, as “Tort X.”)

When my plaintiff lost in his home state and sued me in Florida, he tried to bolster his case with references to another Tort X lawsuit that had certain parties I’ll call Jones vs. Mackey. Something that happened in that case is instructive. The Plaintiff, Jones, didn’t hire an attorney who was a specialist in Tort X. He hired an attorney who had spent his career on cases involving real estate foreclosures.


Why? I don’t know. I’m guessing no attorney who specialized in Tort X would take what was obviously a lousy case. But I’d like to argue that, if UPL is going to be so strongly prosecuted, then UPL should be expanded to include attorneys like Jones’ who practice a type of law outside their range of expertise and experience.

And why shouldn’t such an attorney be prosecuted just as violently as the Florida Bar prosecutes legal document preparers? By practicing outside their expertise, attorneys like Jones’ are exposing their clients to exactly the same risks that the Bar claims legal document preparers are exposing their customers to. Would you see an ear, nose and throat doctor for an ingrown toenail? Of course not. A wise ENT, except in emergency, would give you a referral to a podiatrist. An attorney who did not do the same should be prosecuted for it.

Maybe what the Florida Bar needs is a taste of its own medicine.

Guest Blog, published with permission from the author, Jim Holding

The Pro Se Challenge - Accessing the Court System

As a pro se litigant, I recently experienced a frustrating (and expensive) example of the sort of barriers a pro se litigant can encounter. I discovered that court systems are not designed to aid the pro se litigant in filing their paperwork, and a clerk of court’s staff are often far from helpful.

In 2015, I was sued by someone in a state on the other side of the country. Other attorneys in his area referred to him as a vexatious litigant, and he filed all his lawsuits pro se and in forma pauperis. He had never won a lawsuit.

My background is in research, and I once managed a law library. So, I was able to defend myself, and I prepared a defense based on lack of personal jurisdiction.

Unfortunately, the court system this man lived under was still in the 1990s technologically. There were many obscure rules, and many forms for filing documents that were unique to that court. Half the time I called the clerk of court to ask a question, and either the person I needed to speak to was “out of the office,” or the person I spoke to had no idea how to help me. To make matters worse, this court system just happened to be implementing new scheduling software, which caused even more problems as members of the clerk of court’s staff became unavailable because they were “in training.” I left messages, and did not receive calls back until literally the last minute I had to do my paperwork.

There was also no system set up for full electronic filing. I could send a copy to the clerk’s office electronically, provided I went through an obscure registration process. However, I was still required to “snail mail” copies to the judge. Barney Fife obviously served as clerk of court in this county!

I filed a motion to dismiss, only to discover that I had filled out a form incorrectly, and my dismissal hearing was not properly scheduled. I became so concerned about not being able to communicate with the clerk’s staff that I hired an attorney in the other state. In the end, because of various actions by the plaintiff, it cost me $21,000. It could have cost more. Thankfully, the attorney I hired recognized that I was competent at legal research and allowed me to do research for him on personal jurisdiction. That saved me $1500. (The judge, by the way, awarded me those attorney fees after everything else was over with.)

The attorney used the same arguments I used in my motion to dismiss, only adding a few points from that state’s case law. Had the court system in the Plaintiff’s state been more accessible, I could easily have handled these matters myself. The end of this affair proves it: After the Plaintiff lost to me in his home state, he tried to sue me in Florida – and I defeated him for no more than the cost of postage and copies..along with a small payment to a helpful legal document preparer!

Guest Blog - published with permission from the author, Jim Holding.