Please sign our petition!

Dear Customers and Friends:

I need your help. The organization I belong to, the Florida Association of Legal Document Preparers, is working to convince the Florida Bar to remove the shackles placed on our profession. I only just recently learned I can ask folks other than just our membership to help us get this goal reached. Here are the points involved in this battle (and it is a battle), to cause the Bar do the following:
1. Investigate Unauthorized Practice of Law when there is consumer harm. Not when there is "potential" harm.

2. If the Florida Bar demands that we follow their rules, make those rules clear, and set out in a fashion in which document preparers can easily find and refer to the rules.

3. Lighten up on the investigation of document preparers altogether. We feel we are being bullied and harassed by an entity that does not supervise us. The Florida Bar is authorized to investigate UPL but putting document preparers out of business is counterproductive all around.

4. Give us some recognition for what we do. We are part of the solution to the ongoing justice gap. Until consumers are being served fully, there is no need for us to be perceived as a threat to lawyers.

I’m asking you in all sincerity to please, follow the link below, and vote for our freedom to help those who can’t help themselves in these issues.

Here are some comments which have been left by others who have joined to support our cause:

"Attorneys are very expensive and there are many things that can be handled by an individual if they have the right forms."
"Many people need help in the courts and cannot afford a huge retainer fee just to get any kind of justice."
"Stop beating on the little people in the business

To each of you who I have helped type up legal paperwork, I’ve explained how, even if we have a college degree in Paralegal Studies, unless we work directly for an attorney, we aren’t allowed to call ourselves by that title. With no written guidelines, we are expected to know what we can and cannot say to a customer to avoid Unauthorized Practice of Law. Many unsuspecting paralegals in this situation have put themselves in the path of losing their right to help folks by calling themselves that title. People can by law,  get help from us to get their legal forms filled out, with the same accuracy and at a much lower cost than if they had to hire an attorney. This not only is wrong for the document prep folks, it hinders everyday people from saving money. The link I’m providing in this letter leads to a Petition our Petition.  You can truly be of help to right a wrong.

Here is the link to the petition: https://www.change.org/p/the-florida-bar-allow-nonlawyer-legal-document-preparers-to-continue-to-help-consumers-without-interference

Every signature counts. We now have over 400 signatures. Need 500.

Thank you so very much for your support!

Ruth Tick and the FALDP Team.

Mind the Gap – the Justice Gap.

Signs that say “Mind the Gap” are posted in London tube stations to remind people getting on and off the subway to be careful to watch their step, that there is a gap between the train car and the platform. Stepping into the gap or falling into the gap could result in bodily harm, loss of life or limb.

The “Justice Gap” refers to the fact that many consumers face extreme difficulty being able to afford an attorney. While legal aid societies exist for the very poor; and indigent criminals are entitled to a public defender, there is little to no affordable legal help for low income or moderate income people.

The justice gap is just as treacherous, terrible, and tangible as the gap at the subway platform. Without any legal assistance, consumers can lose their homes, their children, and their money. For many people, being able to afford an attorney is as likely as being appointed to the U.S. Supreme Court. The courts are well aware of the difficulty that many consumers have in affording legal assistance. The term, justice gap, is bandied about regularly, with lots of self-congratulatory back slapping at each and every minor effort made. More technology is touted as one of the answers. More technology in a world where, arguably, technology has already outpaced the comprehension of struggling consumers.

There is a Florida Supreme Court committee on Access to Justice, cutely named – A2J. Chief Justice Jorge Labarga, Florida Supreme Court stated:

“Florida needs a coordinated effort involving all of the entities with the potential to make permanent, systemic advances to ensure that access to justice in Florida is not limited to those who can afford it. I am particularly concerned about the circumstances facing low-income litigants for whom purchasing legal representation can pose an impossible challenge, but access to civil justice is also a problem for the middle class, many of whom do not qualify for legal aid and cannot afford to hire a lawyer.”

The Chief Justice is preaching to the choir. Legal document preparers and pro se litigants know in their hearts and bones, that what he says is true. An understatement.

The Florida Supreme Court offers an app which can be downloaded free from Google Play. The app's description claims:

Florida Courts Help seeks to help Floridians who represent themselves in family law cases.

The Florida Courts Help app works on Apple and Android phones and tablets. The app offers in one place information for people seeking a divorce, adoption, orders of protection, name change, and other family law issues.

The app puts help at the fingertips for any mobile device user, with:

• 186 Supreme Court-approved family law forms that can be filled out on the device.
• Links and contact information for help centers all around the state.
• Plain-language instructions and descriptions of first steps and next actions.
• Pointers and contact for a full range of legal help from multiple online resources, free and low-cost legal services, lawyer referrals and other information, including eligibility criteria.
• User-friendly instructions for initial steps and pointers about what happens next.

The app doesn't really work, by the way. The information is there, but you can't fill out the forms on your device as is claimed. Not on my device anyway. All the information accessed through the app is also already online on the Supreme Court's site, www.flcourts.org .

I dare to state the obvious, the emperor has no clothes … if attorneys would charge less, then more people could use them. For example, I filed a law suit a few months ago against a roofing company who never got my roof done. I paid them a $2000 deposit, relying on their promise to start the work in four weeks. They didn't ever start. Five months after paying the deposit, after asking nicely for the return of my deposit, I sued for its return. I was almost there, as a pro se litigant, when the roofers lawyered up at the last minute, just two days before the hearing on my motion for summary judgment. Their attorney filed a motion to dismiss, and was out to bury me, the pro se litigant, citing all sorts of problems with my pleadings, legal argument, etc. Due to my good luck, and maybe my good Karma, a friend of a friend who is an attorney helped me settle the case for free before I was buried. I got my full deposit back, and the satisfaction of knowing that the roofers had to pay their attorney something.

The economics of retaining counsel to sue for $2000 just doesn't work. I was already out $2000, and paying a second $2000 or so to retain counsel just doesn't seem reasonable. Even if I won, and even if I was awarded a judgment, and even if the roofers were ordered to reimburse attorney's fees, no telling how much time and effort would be required to recover on that judgment.

I am a legal document preparer. I make my living preparing legal documents for pro se litigants. I have a BA in Legal Studies, although I am not allowed to advertise that particular fact. Advertising the fact that I have such a degree is considered, (by the Florida Bar), to be engaging in the unauthorized practice of law (UPL). I have more experience preparing legal documents than the average consumer. Also according to the Florida Bar, my stating that I have experience preparing legal documents is engaging in the unauthorized practice of law. This blog article is not an advertisement, I hope that in writing this I have better First Amendment protections than I do in advertising my services.

Despite my degree and my experience, I did not want to go head to head with an attorney who was out to bury me. But, at least I did know how to prepare and file the complaint, have the parties served, have one of the party defendants dropped, and another party defendant defaulted. I'm glad my case settled. I'm glad that an attorney helped me out. Things could have gone my way had we continued on and the summary judgment hearing had taken place. Or, my law suit could have been dismissed, burying me as the attorney wanted. But, in the end, all I really wanted was my money back. And I got that, my story has a happy ending.

Many other consumers do not have happy endings in court. Many consumers free fall into the justice gap and never recover. Document preparers can bridge the justice gap. We are the innovators of the legal system. We do not need to rely on technology alone, we bring with us the business agility to provide affordable alternative legal services to consumers. We can't do everything that an attorney can do – no legal advice/ no representation. But, other than those two things, we can provide consumers with services which they would otherwise go without.

MIND THE GAP.

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

Legal Document Preparers and Freedom of Speech

My dad often used the term "aggressively stupid" to describe officious petty bureaucrats. He had other favorites too, IPA was his acronym for "idiots per acre", as in "the IPA index is off the charts here". He was also a life long snob, using yet another personal acronym, LSE, which stood for lower-socio-economic to describe anyone who he thought was beneath him, which was most people. The two years I spent living with him as a teenager were endlessly interesting and educational. Dad was super intelligent and quite the misanthropist. He retired from the U.S. Navy as a Captain and was a psychiatrist; and managed to alienate three of his five children before he died.

I could not help but think about my dad when I read recent Florida Bar unauthorized practice of law (UPL) letters sent to legal document preparers. IPA certainly came to mind. But more on point, is the aggressively stupid label. In the most recent UPL letters the Florida Bar and UPL Committee has stated that legal document preparers may not use the word "legal" anywhere on their websites. At first, it was that we may not use the word "legal" to modify services - legal services. I concede that could be confusing ... maybe. Then it was that legal document preparers may not use the word "legal" in their email address. Next it was that legal document preparers may not use the word "legal" in their business name. Funny, I have been the Director of the Florida Association of Legal Document Preparers since 2010, and that one is news to me. And, the latest is, that legal document preparers may not use the word "legal" on their website, anywhere, or in any of their advertising.

This is the stupid part: Legal document preparers may not use the word "legal", but others can? What about bloggers? I'm a blogger, this is a blog. The name of this blog is "Legal Sunshine". I can think of a whole slew of ways to use the word legal that have little or nothing to do with lawyers or legal document preparers. Legal, legal, legal. Street legal, legal limit, legal job, legal questions, legal information, legal dictionary and on and on. And just for fun, I went on the Florida Division of Corporations' site and found pages and pages of business names that include the word "legal". I'm betting that not all of them are attorneys.

The reason for the prohibition as stated by the Florida Bar UPL Committee is that consumers could be confused and think that a legal document preparer is an attorney. I'm not sure how someone could think that, since disclaimers abound. Nearly every legal document preparer site and advertisement displays, at minimum, the following: "We are not attorneys and do not provide legal advice". Plain language that. Show me a consumer who, after reading that basic disclaimer, believes that the legal document preparer is an attorney, and I'll show you a consumer who most definitely needs help with his legal documents. And, as education and income correlate, that same consumer very likely also could not afford to retain counsel.

This is the aggressive part: Through the power of the Florida Supreme Court, the Florida Bar is authorized to investigate UPL. In reality, the Florida Bar has absolutely nothing to do with legal document preparers until and unless there is unauthorized practice of law. The Florida Bar does not regulate legal document preparers in any way; does not oversee legal document preparers in any way; and does not license document preparers in any way. However, UPL is a third degree felony. Right up there with: Grand Theft; Grand Theft Auto; Cocaine Possession; Possession of a Controlled Substance

Burglary of an Occupied Structure; Uttering a Forged Instrument; and Child Neglect just to name a few. I don't believe for one second that the intent of that law is to persecute legal document preparers trying to earn a living. I do believe that if the Florida Bar UPL Committees get their way and prohibit legal document preparers from using the word "legal" to describe the forms they prepare that the First Amendment is in serious jeopardy. And, I believe that I'll be damned, and we will all be damned if our freedom of speech is so curtailed.

The Times They Are A-Changin'

The line it is drawnThe curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order isRapidly fadin'
And the first one now
Will later be last
For the times they are a-changin'.

Bob Dylan

Bob Dylan's words have never held more truth. In our modern world, we see technologies come and go, businesses rise and fall, and the status quo steadily crumbles. When we founded the Florida Association ofLegal Document Preparers in 2010, pro se representation was rare. Consumers at that time were not as well informed about their rights and the law as they are today.

Legal document preparers are systematically chipping away at the status quo, and for all the right reasons. We are disrupting the way consumers access the court system by showing our customers they really can do it themselves. Since many consumers have no choice but to represent themselves - legal fees being prohibitive, and free legal services as elusive as ice in the Florida sun - legal document preparers are an alternative.

We are not a substitute for an attorney. In fact, we are prohibited from ever stating that our services are a substitute for an attorney under threat of imposition of draconian punishments which include fines and possible imprisonment. So, no, our services, are not a substitute for an attorney.

We do not offer legal advice. We are prohibited from doing so, even if we wanted to, under threat of those same harsh penalties. Our customers know what they want to accomplish, they know their own situations, and nowadays they usually know their rights. What they don't know is where to find forms, how to complete those forms, how to file them, what to file when, and which forms they need.

We are also prohibited from choosing forms for our customers. Same penalties apply. However, we can provide legal information. Legal information found in form instructions, statutes, case law, and other authoritative sources dictates what to file when. Legal document preparers help make the wildly asymmetrical legal system somewhat more balanced and accessible.

A few stats gleaned from the Palm Beach County Bar Bulletin, September 2015:

• An estimated 60% of our state citizenry cannot afford a lawyer to address their legal need, and do not qualify for Legal Aid.
• 85% of family law cases involve at least one pro se party because divorcing parties are often “priced out” of the legal market.
• Less than 15% of small businesses use a lawyer

Florida legal document preparers are here to stay. Rumor has it that the Florida Bar plans to require document preparers to complete an Associates degree to learn how to prepare legal documents and only then be allowed to offer their services. I'm not quite sure how the Florida Bar intends to implement that. What I do know, is that if this becomes the requirement it represents yet another hurdle for pro se litigants to access the legal system.

The Florida Association of Legal Document Preparers (FALDP) requires applicants to meet or exceed minimum standards for membership. And FALDP now offers voluntary certification for member document preparers to further elevate our profession. We're here for the duration -- proudly serving the under served.

So Why Can't I Own a Law Firm?

I know, I know, because I'm not an attorney and the rules say so, that's why. I know, but why?????????

I have a few reasons for my curiosity. First, an associate received the dreaded letter from the Florida Bar stating that her company may be engaging in the unauthorized practice of law. The apparent red flag: stated on her website is that she has an attorney on her team. Her site also states that they do not provide legal advice or representation; and that her company focuses on document preparation for family law matters and divorce mediation services. I'm not sure what the word "team" means, but the Florida Bar thinks it might lead consumers to believe that they could receive legal advice as part of her company's services. Perhaps. But why is that a problem? I mean an attorney offering legal advice doesn't sound sinister.

Then I wondered, how is this any different from Legal Zoom putting the law on my side in their national advertising campaign with Attorney Robert Shapiro of OJ Simpson fame as spokesperson? I have absolutely no argument with Legal Zoom, and believe they have done a great job in educating the public. However, isn't Shapiro's smiling face similarly misleading?

In Florida, as in most parts of the United States, nonlawyers are prohibited from owning law firms. The exception is Washington DC where its allowed, and has been since 1980.

Published on Mar 19, 2014

Mar. 19, 2014 (Mimesis Law) -- Mike McDevitt, CEO for Tandem Legal Group, is not a lawyer, but thanks to an obscure rule in Washington, D.C.'s code of ethics for lawyers he is able to have an ownership interest in the law firm he runs. But that doesn't mean he's advising clients on legal matters. "My level of knowledge on law is not that high, so I'm not going to get involved in legal decisions for our organization," he tells Lee Pacchia [in a you tube interview]. "My job as CEO is to help our organization run an efficient and effective firm."

Tandem Legal Group's business model is refreshing and reminiscent of an era when businesses sought out legal advice, before a crisis erupted. The business theory of Tandem is to help their clients grow their businesses - together - in tandem. Great concept.

The U.K. and Australia allow nonlawyers to own and operate legal firms, apparently without damage to consumers. An article by Attorney Robert Denney, "The Newest Big Issue: Non-Lawyer Ownership or Investment in Firms" (1/13) discusses the issue.

According to Denny, 23 years ago the U.K. passed the Courts and Legal Services Act of 1990 (CLSA) breaking the monopoly that attorneys had over legal services. This act allowed non-lawyers to enter the legal market by the creation of "Alternate Business Structures" and allowed lawyers and non-lawyers to work together to deliver legal services and also solicit outside investments.

After that, a major personal injury firm in Australia, filed a public stock offering. And, in 2007 the U.K., passed the Legal Services Act, succeeding the 1990 act. The motive behind these developments was to increase consumers’ access to legal services and to increase competition in the legal profession.

Since the 2007 UK law passed various types of business structures and ownerships of law firms have emerged; including publicly traded personal injury and, real property law firms. In March 2013, British regulators allowed an organization that runs grocery stores, and also offers banking and insurance services to provide legal advice on divorce and other family law matters to its seven million members.

Imagine, having your divorce documents prepared through Sam's Club!

One of the recurring arguments from the bar associations against allowing nonlawyers to own law firms, is that it would dilute the integrity of the legal profession. Lawyers are professionals, and having nonlawyers as law firm owners would sacrifice the quality of legal advice in favor of pure monetary gain. [Lions and tigers and bears - oh my.] And that nonlawyers making legal decisions would damage consumers. There is some truth to that statement; and its simple enough to solve by dividing duties to prevent that situation. Lawyers make legal decisions; business owners make business decisions.

I don't have to be a doctor to have an ownership interest in a medical clinic. Good, bad, or indifferent, the corporate practice of medicine is alive and well in the United States.

      Florida law does not prohibit the corporate practice of medicine, but does prohibit "fee-splitting" by health care professional. .. However, there is no prohibition on a health care provider's forming and operating his or her medical practice as a regular business corporation (usually designated by the abbreviation "Inc.") or as a regular limited liability company ("LLC"). Click Here to Read More.

Fee splitting is also prohibited between lawyers and nonlawyers.

1. The origin of fee splitting prohibitions in Florida are founded on certain core principles which are fundamental to the legal profession's proper function.

2. These principles include the protection of a lawyer's duty of loyalty to a client, the lawyer's duty of independence in making decisions which are in the best interest of the client and no other, including the lawyer; the lawyer's duty to hold client confidences inviolate; the lawyer's duty to act free of impermissible conflicts and the lawyer's duty of competence.

Rule 4-5.4 of the Rules Regulating The Florida Bar and ABA Model Rule 5.4 have long prohibited the sharing of fees generated by the rendition of legal services with non lawyers because of the lawyer's duty of independence and the lawyer's duty to exercise loyalty to the client over and above any duty to the lawyer or to the organization employing the lawyer. www.FloridaBar.org

In 2011, The Florida Bar News, published an article posing the following question:

"When is fee-splitting OK?"

"Should lawyers be allowed to split fees with private lawyer referral services or at least pay a flat 
fee per referred case?"

As it is now, lawyer referral services are only allowed to charge a subscription fee for attorneys to receive referrals, but may not charge a flat fee, or percentage, per referral. Many nonlawyers would happily refer to attorneys if they could. As it is, there is nothing to gain for a nonlawyer document preparer to refer a customer to an attorney. The attorney is not allowed to pay a referral fee, and many attorneys would prefer that nonlawyer document preparers didn't exist to begin with. Why, then, would a document preparer refer a paying client to an attorney? Answer is, for the good of the client. And that's fine, and fair enough.  

However, many document preparers have been unable to cultivate any sort of relationship with any attorney, as there is all too often an uneasy coexistence between lawyers and non. After all, it is difficult for a nonlawyer document preparer to see his way clear to refer to any attorney when it is often attorneys who complain to the Florida Bar about nonlawyers possibly engaging in the unauthorized practice of law. Some individual nonlawyer document preparers and some individual attorneys exchange referrals for no fee; but these arrangements are exceptions and not the norm. A more frequent scenario is that when a nonlawyer document preparer realizes that the consumer needs legal advice rather than document preparation, the consumer is simply turned away, with no referral to anyone or any resource. How does this help consumers? Answer is, it doesn't.   

In the previously mentioned article - "When is fee-splitting OK?", former Board of Governors member D. Culver “Skip” Smith , who raised the question during the Special Committee on Lawyer Referral Services, stated "it could be seen as hypocritical that Bar rules prohibit sharing or splitting fees with nonlawyers in all cases except one — with nonprofit lawyer referral services approved by the Bar. Essentially those are programs run by area voluntary bars, plus the statewide program run by the Bar. (If a lawyer takes a referral from one of these services, a percentage of the final fee, typically 10 or 15 percent, reverts to the service to help fund its operations. The services also collect a small up-front fee from the callers who accept a referral.)"

and, Smith continued:

“For-profit referral services, it seems to me, are not going to stay in business charging an annual subscription fee or an annual membership fee. They want their money per case,” Smith said. “I believe that a per case flat fee is not fee-sharing. . . . Lawyers expect to pay something per case for these referrals in this day and age. Obviously, you don’t pay a percentage like half of the fee, but a flat fee that’s not based on the size of the fee.”

However, "Bar Ethics Counsel Elizabeth Tarbert explained to the committee why the Bar disagrees.

“The reasons that we prohibit fee-sharing with nonlawyers generally are to stop a nonlawyer from having control over the lawyer’s independent professional judgment in representing clients and providing active counsel and good competent advice to their clients,” she said. “Generally, the control follows the money, and if the nonlawyer has the money, the nonlawyer is the one calling the shots.”

With the local bar-run programs, the Bar has direct control and can revoke a program if it violates Bar rules, Tarbert said, eliminating the risk the service will meddle in how a case is handled."

And there you have it.

Follow the money. The Florida Bar is concerned that the nonlawyer will call the shots. And, I completely agree that legal decisions should be left to the legal professional. Just as when someone who is not a doctor operates a medical facility, medical decisions must be left to the medical professional. However, having someone who is not an attorney make the business decisions may be the best thing that could ever happen to attorneys. In the best of all possible worlds, the day to day business activities - marketing, customer service - and long term business planning could be done by a business professional. Attorneys could focus on giving legal advice and litigation.

As it is, I have no doubt that business decisions that attorneys make on a daily basis affect their independent judgment in providing active counsel and good competent advice to their clients.

Situational Third Down Slot Backs of the Legal World

I read Mark D. Killian's Florida Bar Article (2/15/14) "Legal freegans’ are looking to ‘eat your lunch". In my opinion, Mr. Killian in particular, and perhaps the Florida Bar in general, has missed the point. First, I wasn't sure what or who a "freegan" might be, so I looked it up. According to Wikipedia:

"FreeganBeliefs

Freeganism is based on the idea of anti-consumerism and that there is little need to purchase new goods because of the waste that society has produced and because they want to help the environment. The writings of sociologist and anthropologist Marcel Maus inspire many values of freeganism. Mauss studied the relationship between forms of exchange and the social culture. Not only do freegans use their finds for personal use, they also share their items and use them for free distribution. They believe that the general public greatly misuses resources because of the ideals and activities of mass consumerism and do not want to contribute to the consumerist society."

So, to extrapolate (or torture) the term then, a "legal" freegan is happy to take the legal left overs, the legal crumbs, in order to avoid the waste generated by the masses' endless demand for legal products. I don't think so. Apparently, freeganism was once explored on Oprah, wherein a show guest explained how she found castaway food, furniture, clothing, even housing, through urban foraging techniques, including curb shopping, and dumpster diving. For some, these practices are both political statements and lifestyle choice. However, I suspect that for many, freeganism is survival, plain and simple; and many embrace the label rather than think of themselves as poor.

The subheading of Killian's Florida Bar article is: "Advanced technologies and nonlawyer entities are encroaching on the traditional practice of law". I say thank goodness and its about time, but, of course, I am not a lawyer. I am pleased to know that nonlawyer entities and advanced technologies, are, in fact, "encroaching" on the traditional practice of law. Mind you, the Florida Bar has never really defined the "practice of law", so we can't quite be sure what the practice of law is, but, I guess ... maybe, like pornography, we know it when we see it. The "encroaching" part is what caught my attention.

By the people, for the people, and of the people. The last time I checked, the courthouses are built with, and, the court staff are paid with tax dollars. Judges are public servants.

Consumers should not be relegated to gathering legal crumbs. Without access to the legal system, consumers are excluded from justice.

http://www.justice.gov/atj/opa/pr/speeches/2010/atj-speech-100809.html

In a 2010 speech the ABA Pro Bono Publico Awards Luncheon, Laurence H. Tribe, Senior Counselor for Access to Justice, stated:

"Law and justice are not synonymous.  Law is a means. Justice is an end.  As we know all too well, law has not always operated to advance the cause of justice.  In American history, as in the history of the world, law has at times served to enslave and oppress, to obfuscate and entrap rather than clarify and liberate.  Defined at its most basic level, the mission of the Access to Justice office that the President and the Attorney General asked me to lead is to release the liberating and equalizing energies latent in our nation’s legal heritage – to help make the lofty rhetoric of “equal justice under law” into everyday, on-the-ground reality, making justice an active verb."

"As the Attorney General has repeatedly remarked, ours is a justice system in crisis, both in indigent defense and when it comes to providing adequate civil legal assistance for the poor, the working class, and the struggling middle class:

• When only the wealthiest among us have their legal needs met, justice will remain an unrealized ideal.

• When a public defender, buried in a mountain of work, has only moments to absorb the facts of a case before standing up to represent her client in court, justice is not alive and well. 

• When poor kids, theoretically entitled to counsel under Gideon and Gault, waive that right without legal advice in a flurry of legal proceedings incomprehensible to them, never understanding the long-term consequences such a decision can have for their opportunity to go to school, get a job, or enter the military, justice remains only a distant hope. 

• When so many people are evicted from their homes or lose custody of their children or are deprived of their ability to seek asylum in this country without the guiding hand of counsel, justice is not a reality."

"The problems we face aren’t episodic. They are systemic. Over half of those who qualify for and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.  Many of them have no other option.  They simply become more vulnerable to injustice because they are poor. And many millions more remain vulnerable to the shattering impact of a single event – a home foreclosure, a denial of medical or veteran’s benefits, a denial of help for a sick or troubled child.  These are the millions in our shrinking middle class who face devastation because, for them, the price of justice is too high."

"You have all heard of the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout.  I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to justice are lowered.

The challenge, of course, is to do just that — to use our privileged positions as guardians of the law to lift up the most vulnerable and needy among us – when so much else competes for our attention.  “The road is long,” say the lyrics of one of my favorite songs, 'With many a winding turn/ That leads us to who knows where/ Who knows when/ But I’m strong/ Strong enough to carry him/ He ain’t heavy, he’s my brother.'"

And in response to Jordon Furlong's sports analogy as far as whether attorneys' roles should be that of a quarterback, a wide receiver, or a situational third down slot back, I say the latter. In my ideal world, attorneys aspire to the legal equivalent of the masterful cat-like agility of Kansas City's Jamaal Charles -- and leave document preparation to document preparers.

You don't need an electrician to change a light bulb.

You don't need a doctor to apply a band-aid.

And you don't need an attorney to prepare a legal form.

FALDP Launches Three New Online Courses – All Courses Buy One Get One Get One 12/2 through 12/16

The Florida Association of Legal Document Preparers is pleased to announce the launch of one just released online course; and two recently released online courses. Now, new and aspiring Legal Document Preparers can add more skills and knowledge to help their customers help themselves.

 

The Florida Association of Legal Document Preparers (FALDP) is pleased to announce our three most recent online courses Debt Defense; and Post Conviction Document Preparation: And from December 2 through December 16, 2013 all courses are offered as Buy One Get One – pay full price for any course and choose a second course of equal or lesser value for free. After paying for your course, send an email to staff@faldp.org with ~ My Free Course ~ in the subject line.

We are proud to offer a growing curriculum of courses to help document preparers help consumers. Our online document preparation courses are entirely self-paced. We offer these discounted courses to thank our members and friends for continued support throughout the year. You do not need to be an FALDP member to take our courses.

Debt Defense is completely self-paced and online as are all of our courses. Help yourself or help your customers defend against a law suit to collect a debt. This course includes sample documents, templates, and more. Also includes the most recent version of our FALDP Self-Help Guide instant download ebook - "You've Been Sued! How to Answer a Civil Complaint". Work through five modules with an exam link at the end, then complete the Exit Survey to request your Certificate of Completion. Tuition - $175. - just released (12/2013)

Post-Conviction Document Preparation includes information and forms about Early Termination of Probation; Expunge & Seal of Criminal Records; Restoration of Civil Rights; and Reputation Repair & Management. We have included official forms from the Florida Department of Law Enforcement (FDLE); and The Office of Executive Clemency. Once you complete the modules. Tuition - $199. - released 10/2013

Immigration Document Preparation - There are many ways to immigrate to the U.S., however the most common and the simplest is when a U.S. citizen sponsors a spouse. The same rules outlined in this course apply to other close relatives, as defined by USCIS. A close relative is a spouse, brother, sister, mother, child, etc; but not a cousin. And of those close relatives, by far the simplest and most straight forward of immigration processes is sponsorship of a foreign spouse by a U.S. citizen. Tuition $249. - released 6/2013

Our Other Courses Include:

Becoming a Successful Landlord is now open for registration. We think its our best course yet, packed with information, links, and Supreme Court approved landlord/ tenant forms. The same forms we provide on our site for $9.99 are included in this course as free downloads.

Setting Goals
Property Types – What works best for you?
Choosing a Property. - A good choice makes all the difference.
Rights & Responsibilities – Working together works best.
Financial Considerations – Affordability and accountability. Laws and regulations.
Personalities – The Golden Rule.
Dealing With Disputes – Learn how to resolve disputes before they become disasters.
Evictions – Specific steps
Conclusion – Link to the test; important forms and information.

“Becoming a Successful Landlord” is geared both towards landlords and the document preparers who help them. Savvy tenants can also benefit from the information in this course. The information in this course can repay you many times over that small investment in yourself. Tuition - $199.00

Visit us online to learn more – http://www.faldp.org/Online-Courses.html


INTRO to Florida Legal Document Preparation explains business basics - including business structure, choosing a name, and deciding on a business model. This course also includes information about compliance and avoiding the unauthorized practice of law (UPL).There is no test, instead there are required assignments. This Intro course is mandatory for inexperienced document preparers, and for document preparers relocating to Florida from other states; who would like to be a member of the most prestigious and only statewide legal document association in Florida. Tuition - $99.00

Preparing Florida Divorce Documents is a nuts and bolts course based on Florida Supreme Court approved forms for pro se litigants. Each of the different dissolution processes is discussed; along with content about the Petition for Paternity and Related Relief.

Students must complete five study modules and quizzes. Upon successful completion of this course, students will receive a Course Completion Certificate. Entirely self-paced, students must spend a minimum of four hours on the course site. But, are also allowed up to 60 days to complete the course, providing maximum flexibility. Tuition - $220.00

Living Trusts and Estate Planning  is appropriate for both document preparers and consumers. For anyone who had gone through the probate process after losing a loved one, avoiding probate is an attractive idea. The primary purpose of creating a Living Trust is to avoid probate altogether by passing property to one generation to the next through a family trust. We know that informed consumers are the best customers; and we strive to help consumers make informed decisions. We offer a revenue sharing plan for FALDP members who successfully complete this course. Tuition - $99.00

Bankruptcy Basics - Chapter 7 Personal Bankruptcy shows consumers and document preparers how to start over with a clean financial slate. This foundation course introduces learners to bankruptcy terminology; types of bankruptcy; eligibility; Florida exemptions; means test; and do's and don'ts for Bankruptcy Petition Preparers. BK-127 is completely self-paced, and is appropriate for consumers and legal document preparers. Tuition - $149.00

Our online courses for legal document preparers can increase earning potential immediately. Many FALDP members spend years in paralegal programs only to discover that are no paralegal jobs available, or, even worse, that the paralegal jobs that are available don't pay enough to justify the training required.

Recent graduates of Florida paralegal programs benefit from our online courses because our courses are specific to preparing the exact documents approved by the Florida Supreme court for pro se litigants. Consumers could prepare these forms themselves, but many people quickly discover that the forms are confusing. Frequently, consumers are overwhelmed by the amount of detailed information they must learn in order to complete their legal task.

Smart business people know that there is a direct relationship between the number of products and services offered and potential income. Building multiple and diverse income streams helps entrepreneurs weather an uncertain economy.

Whether you are new to the legal document preparation industry or want to expand your services, the Florida Association of Legal Document Preparers is here to help. Registration for our online courses is open. Please visit:  http://www.faldp.org/Online-Courses.html .  Or call 800-515-0496.

Citizen Journalists - Take Note

I am sometimes asked whether it is legal to record court proceedings. I never had an answer better than I don't know. Recently, when I heard that question again, I started looking for the answer.

I did some research and arrived at a site operated by Carlos Miller of - Photography is Not a Crime  . I think the video makes its oh so valid points with humor and panache. Take a minute and watch the video. It turns out, cameras are allowed in Florida court rooms - who knew? Evidently not the attorneys. And the judge was not fully informed either.

I would never suggest that anyone disrupt a courtroom or create a distraction .. but if you're there, and you're waiting for your case to be called. Be ready. Be ready to make a video of the proceedings. According to the video posted here, and the laws that I found, you don't need prior permission as long as you're not creating a distraction.

So, ladies and gentlemen. Please let's start documenting some of the goings on in our courtrooms today. If you see the party in front of you being bull dozed by the system, take pictures. If the pro se litigant called ahead of is told, sorry you need an attorney if you want to be speak; or we don't want to listen to you, we're going forward despite your arguments.  These incidents are rampant in foreclosure court, family court, circuit civil -- come on. Let's take our country back. The people need to know what is really going on.

Here is the actual rule in place today…..Florida Rules of Judicial Administration -

RULE 2.450. TECHNOLOGICAL COVERAGE OF JUDICIAL PROCEEDINGS (a) Electronic and Still Photography Allowed. Subject at all times to the authority of the presiding judge to: (i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions; and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with the following standards of conduct and technology promulgated by the Supreme Court of Florida.

Posted on the First Amendment Foundation's website - http://www.floridafaf.org:

"The First Amendment Foundation is a highly visible and accessible source of authoritative information, expertise, and assistance to the public and news media. It was founded as a non-profit organization in 1984 by The Florida Press Association, the Florida Society of Newspapers Editors, and the Florida Association of Broadcasters to ensure that public commitment and progress in the areas of free speech, free press, and open government do not become checked and diluted during Florida's changing times.

Its purpose is to protect and advance the public's constitutional right to open government by providing education and training, legal aid and information services. Funding is based on voluntary contributions from various organizations and concerned individuals.

According to a 1977 Florida Supreme Court ruling:

"Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation. News delayed is news denied. To be useful to the public, news events must be reported when they occur. Whatever happens in any courtroom directly or indirectly affects all the public. To prevent star-chamber injustice the public should generally have unrestricted access to all proceedings.” 

State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 910 (Fla. 1977). 

And a comment on The First Amendment Foundation's site by the co-founder of www.faldp.org -

Kenneth Diaz says:

February 12, 2011

"Access to our courts require the freedom of the press and of free speech. Blogging and independent reporting is a modern approach to speech and the press. We understand the value of keeping order and minimizing distractions in open court. Reasonable limits may be necessary, but mind you that the reason cameras are banned from most courtrooms is because of the sounds and flashes that may cause a distraction. As long as general courtroom decorum is maintained, restrictions on any journalists, professional or not, is counter to our values as a free society, and to our constitutional rights as citizens."

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.