As
the Director of the Florida Association of Legal Document Preparers
(www.FALDP.org) I make every effort to educate members about the
rules surrounding the unauthorized practice of law (UPL). When I
notice a member advertising in a way that may mislead the public or
trigger a UPL investigation, I contact the member and tell them. Upon
joining our association each member is required to acknowledge and
agree to our FALDP Pledge which states:
As
a Member of the FALDP, I agree:
- To refrain from offering legal advice.
- To direct my customers to information so that they may make informed decisions.
- To provide responsive customer service.
- To comply fully with applicable state and federal laws.
- To ensure clear and truthful advertising.
- To clearly disclose costs and relevant terms.
- To represent myself as a legal document preparer, and not as a paralegal.
- To refer customers to an attorney for legal advice.
- To conduct my business ethically.
- To respect my customers’ privacy.
- To keep in strict confidence my customers’ affairs, and not share information about a customer without that customer’s permission unless court ordered.
- To support legislation promoting public access to the legal system.
We offer an online course called “Introduction to Preparing Florida Legal Documents”, which is primarily a compliance course. The course is meant to educate document preparers about the rules surrounding UPL, and also includes information about doing business as a Florida Legal Document Preparer. Some of the UPL rules are clearly posted on the Florida Bar's website, other rules are scattered about in various court cases. The Intro Course is not required unless the document preparer is relocating to Florida from another state or is starting a document preparation business for the first time. I suggest to some experienced paralegals who submit membership applications that they should take the Intro Course, because working under the supervision of an attorney and working for self-represented litigants are two very different activities.
There
are things which are considered UPL that no one could imagine, but
there they are. You don't know until you know. For example, Florida
legal document preparers are not allowed to advertise “free
consultations” as this is something that attorneys offer. Florida
legal document preparers are not allowed to draft property deeds. It
remains unclear whether document preparers can prepare a property
deed using a standard template. Document preparers are likewise
prohibited from sending a document to a consumer with the word
“draft” in the title. We suppose that “draft” in the Florida
Bar's reasoning means creating or authoring; but according to
multiple dictionaries I checked, “draft” means a preliminary
version of a writing.
It
is not clear whether document preparers may assist pro se litigants
in efiling their documents. . Other document preparers have been told
by the Florida Bar that they may not use the word “legal”
anywhere on their website or as part of their email address. Document
preparers have also been reprimanded for using the words
“professional” and “experienced” on their sites or in their
advertising when referring to themselves. In addition, document
preparers have been told not to mention that they have law firm
experience, are a member (or former member) of NALA, and to refrain
from mentioning any academic credentials or achievements. For
example, document preparers (according to the Florida Bar) are not
allowed to state in their advertising that they have a Paralegal
Certificate or a BA in Legal Studies – even though these are true
facts. All of these things, according to the Florida Bar, mislead the
public. And I suppose, mislead the public into somehow thinking that
the document preparer is an attorney, even though document preparers
make clear in their advertising that they are not attorneys and do
not offer legal advice or representation.
In
support of their position, the Florida Bar frequently relies on
FLORIDA BAR v. BRUMBAUGH 355 So.2d 1186 (1978) and Sperry v.
Florida 373 U.S. 379 (1963). Sperry states:
“... 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.”
The above paragraph is circular
reasoning at best. And obfuscation at worst. Please notice the dates
on the citations – 1963 and 1978. I am certain the world has
changed in the past 39 or 54 years.
It is clear in
the Florida Bar rules that legal document preparers may not refer to
themselves as “paralegals” or “legal assistants”. However,
some legal document preparers persist in using those monikers anyway,
and that use in itself has sometimes been enough to trigger a UPL
investigation. A quick look through craigslist will reveal many legal
document preparers blithely referring to themselves as paralegals,
while others are investigated for UPL for referring to themselves as
paralegals. Including phrases like “legal services”, and “legal
clinic” in a business name is an invitation to investigation.
I am aware of
legal document preparers who have not only been told to refrain from
using the word “legal” in their business name, but also to
refrain from using the word “legal” anywhere on their website AND
to refrain from using the word “legal” in their email address.
I think most of
this is over kill. I think most of this is about lawyers and the
Florida Bar protecting their turf. If lawyers and the Florida Bar
could only understand that document preparers are not trying to steal
their business. We don't want their business, we just want to conduct
our business. If lawyers went to three years of law school so that
they could prepare legal forms, I don't know what to say to them.
Document preparers do not want the responsibility of giving legal
advice, we leave the choices up to the consumer. And/ or we suggest
that the consumer consult with a lawyer every time they have a legal
question. Legal document prepaers are often serving people who could
not possibly afford an attorney, and without a document preparer
would be unlikely to pursue their rights at all.
In the long run,
I believe consumers are harmed by the Florida Bar's insistence on
persecuting legal document preparers. Many consumers cannot possibly
afford an attorney and will go without any sort of legal assistance,
if document preparers are not available. The courts benefit when
consumers use the services of legal document preparers, because even
though the consumer may be unrepresented, the documents are clear and
correct.
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.
