Advice v Information

 

Sometimes it's hard for people to fully understand the differences between legal advice and legal information. Information is fact. Advice is telling someone what they should or should not do. Seems obvious enough.

However some general advice becomes not advice at all because it so general. For example, common knowledge advice. You should wear your seat belt while driving. Don't drink and drive. You should pay your income taxes on time. You should financially support your children. All of those statements are advice, and there are laws related to all of those statements, so does that mean those statements are “legal advice”, which is something that only a lawyer can give?

No, the very general nature of the advice, even though the subject is technically a legal matter, transforms these advisories into general advice.

But, it gets murky. I'm not an attorney. What if I said to a first time homeowner, you should apply for homestead exemption? Is that general advice? It's obvious to me, and common knowledge to me having lived in Florida most of my life and bought and sold more than one home. But what if the first time homeowner is not only a first timer, but also has recently moved to Florida? Is it legal advice?

Maybe. It might be better to send that person down to the county building to find out all about homestead exemption on his own.

I always identify myself to prospective customers as a legal document preparer. And, I then, explain that a legal document preparer can prepare legal documents, provide legal information, and explain procedure, but may not provide legal advice or representation. Although, most consumers say they understand, it still may not prevent them from asking legal questions which I cannot answer.

Legal document preparers may not select forms for their customers. But, many times the customer knows exactly what he wants to accomplish legally, but does not know the name of the form or process. For example, frequently an unwed father will call and tell me that the mother of his child will not allow him to see the child. Most of the time, the father is already paying child support. He is at the mercy of the mother's whims, and poor dad doesn't know why. So I tell him the name of the form.

The central form is called a Petition to Determine Paternity and Related Relief. And, I explain it in this way, “this is like a divorce but for parents who were never married and have a child together.” And I go on to explain that the purpose of the process is for him to receive a signed order from the court naming him as the legal father so that he will have just as much right to see the child as the mother. And this is exactly what happens, unless the mother proves that there was ongoing criminal activity in the household; child abuse or neglect; domestic violence in the parents' relationship; or some other reason that this father should not have paternal rights.

I am not an attorney, I am a Florida legal document preparer. I do not provide legal advice or representation.

If a machine can do it - its NOT UPL.

The U.S. Appellate Case for the Second Federal District, Lola v. Skadden, Arps, Slate, Meagher & Flom, No. 14-3845 (2d Cir. 2015) interests me for reasons other than its stance on labor laws. I'm interested in the part about, if a machine can do it, then its not UPL.

David Lola who brought the case along with others who were in the same position, while working for a legal temporary employment agency reviewing documents. For this he was paid $25. per hour. His job was to go through the documents and search for certain words and phrases; categorize the documents; and mark other words and phrases to be redacted. (It sounds mind numbing). His place of employment was at a law firm in North Carolina [Skadden, et al].

Lola worked more than forty hours per week, but wasn't paid time and half for hours over forty. His employers' position was that he was not entitled to overtime pay because he was a professional and an attorney. They cited exemptions in the labor laws for overtime pay for professionals and attorneys. Lola argued that the work he was doing was not practicing law, because the work required absolutely no legal judgment.

He eventually won his case. The opinion included some interesting language.

“The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

The reason I find this so interesting is that document preparers are frequently investigated for the unauthorized practice of law (UPL). And if the law of the land is that if it could be automated then its not practicing law, we could use that argument in almost every investigation against one of us. Its not exactly the law of the land, it is the law in the Second Federal District, but still persuasive.

Document preparers prepare documents. We don't provide legal advice or legal judgment. Certainly a lot of what we do could be done by artificial intelligence (AI), aka machines, aka computer software. Our activities may not be commonly done by AI but they could. A computer could automatically format documents, intake information, ask questions, and so on. A computer program can certainly know when to ask additional questions and use if/then logic.

So … since a computer could certainly do what I do in preparing documents, then that must mean that nothing I do can be considered the unauthorized practice of law. Right?

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.

UPL - It's deja vu all over again.

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. 

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

Technology is a Tool ... [text of Ruth Tick's closing speech at the 2016 FALDP Conference]

It's astonishing to consider that in this day and age, with all of our modern technology, information delivery systems, and real time communication that consumers are still struggle to access the court system. Pro se litigants struggle because they lack information even though the information is there for the taking. I googled the phrase "Florida divorce" and received over sixteen billion returns in a half second. The information is there, but it's too much to take in. When I refine the search and use "Florida divorce information", I still get over 7 billion returns in around point 4 seconds. Still way too much information. It's overwhelming. And, the information is often unreliable, contradictory, or outdated. Some of the information doesn't apply and much of the information is very general. So even after the searcher reads every single page on every single site on the first page of google he may not have learned anything he didn't already know. The same outcome applies to any other type of legal information that a consumer might search. Adoption, immigration, bankruptcy, or anything else. It's hard, it's frustrating, it's mind-boggling. Technology is a tool, but its not the answer.

People use tools. People are the answer. What if we could be the filter for all this legal information? What if document preparers could not only prepare documents but also provide consumers with the information they need and want? The good news is that we can, and most of us do everyday. Whether or not you have a formal policy to provide legal information, you probably do so. When a consumer calls, emails, or walks into your office he's probably not just window shopping. That consumer is in front of you because he has a problem. He's hoping that you can help him or fix it for him.

But, document preparers are not even allowed to select forms for a consumer. How is a pro se supposed to know what to file unless someone helps. Is he really supposed to wade through those billions of websites? Or spend days and nights at the law library? Some pro se litigants think that it's the clerk of courts' job to give them legal information and assist with procedure. Not hardly. As many of us know first hand and we know all too well from our customers, the clerks are not allowed to say much of anything. Depending on the clerk, the county, the circuit, and maybe the weather, sometimes a clerk will give a consumer some guidance. But, they usually won't or can't because they fear for their jobs. Why, because of that supposed fine line between legal information and legal advice.

But, in fact, there is no fine line. It's easy to know what's fact and what's advice. It's nonsensical to pretend that it's difficult to tell the difference. A fact is a statement that can be verified in some way. A fact is something that truly exists or happens. Advice is an opinion or recommendation offered as a guide to action or conduct. Think about this. These are very different things. Completely different ways of thinking and communicating thoughts -- so I doubt they are often actually confused. I know that when I say - You should wear your seat belt - that I'm giving advice. And when I say, Florida law requires people to wear seat belts - that's a fact.

And if I say the first step in an eviction for nonpayment of rent is to deliver a three day notice to pay or quit. That's a fact. But here is where the games begin. Every driver should know that he's supposed to wear a seat belt. You have to know it to pass the driving test, and if you don't wear your seat belt, you'll get a ticket. It's common knowledge. I've been a landlord since 1984. It's old news to me that you have to give a tenant a three day as the first step to evict.. I learned that years ago. But, there is no landlord course for beginner landlords, they don't know that fact unless someone tells them or they learn it some other way. And if they go and ask the clerk of court what to do, they might not get an answer. It all depends on how they ask. If they say my tenant won't pay the rent what should I do? The clerk of court, or even a document preparer may be reluctant to reply, because it sounds like the answer will be advice. "You should give your tenant a three day notice". Should. But if you answer, the first step in eviction is a three day notice to pay or quit, see Florida Statute Chapter 83 - that's a fact.

Its word play, semantics. And we can work with it. People ask all the time about which procedure or form to use for their desired outcome. We can't select forms for them. But if they know what they want to do but don't know the name of the form or procedure, in my opinion, it would be wrong to refuse to answer. The consumer has a problem or he wouldn't be talking to a document preparer. To say, sorry can't answer that, is acting like the clerk of court. And we CAN answer. Answer with a statement of fact not a "should" statement.

All Florida attorneys have standing to initiate a UPL investigation. Think about that one. We are not regulated by the Florida Bar. We are not attorneys. Attorneys in some aspects are our competition, yet they can report us for supposedly engaging in UPL, even though we don't have anything to do with them. A scenario where an attorney cried UPL because he was losing to a pro se litigant is nothing more than gamesmanship. An attempt to ham string his opponent by taking away the one tool he has - the document preparer. And, sadly, it works. At that juncture a prudent document preparer would sever the relationship with the pro se litigant and address the UPL investigation directly. It's a risk we take.

Every occupation has risks. Roofers, fire fighters, electricians, pilots, chauffeurs, truck drivers, farmers, trash collectors, and construction workers, are among the most dangerous occupations. Anyone working in one of these occupations could die on the job. A business risks their money and time, hoping that the returns exceed the outlay. Our business is unique because legal document preparers could be subjected to a harassing UPL investigation; or even fined or face incarceration. Just for doing our jobs. Just for trying to assist a consumer.

In fact, in the big picture, our risks are minimal providing we plan ahead and take precautions. A roofer knows how to walk a roof, to wear a safety harness if the pitch is too steep. Fire fighters have safety gear which they must keep in good working order at all times. So that when they run into the burning building they have their gear to rely on. We also have tools to mitigate risk. Use them.

The Florida Supreme Court, the Florida Bar, and the Florida Commission on Access to Justice has been discussing and debating various initiatives for as long as I can remember to increase consumers access to the court system. Despite their efforts there has been little actual change or improvement since we formed FALDP in 2010. Document preparers are completely overlooked as part of an official solution. Every time I see a newspaper article, a Florida Bar Review article, or press release that discusses the need for private sector innovation to increase citizens legal access, I write an email to the Florida Bar. I tell them - we're here - we are part of the solution. If I get a response at all, it is usually along the lines of don't call us, we'll call you.

Besides being dismissed and ignored we are harassed. The threat of an investigation is always there. We hang back in the shadows and are not as aggressive in promoting our businesses as we might be. We fly under the radar and try not to draw attention to ourselves. We second guess our every move, lest we might somehow do something that a UPL Committee or a lone attorney decides might be engaging in the unauthorized practice of law.

More than one FALDP member has closed up shop, specifically because of the threat of unfounded UPL allegations. Until the day we demand that the State of Florida recognizes that document preparers are here to stay, that document preparers provide a sought after service, and we have earned our place in the legal system -- we, as business professionals, will remain marginalized, vulnerable, and ineffective.

Today I ask every FALDP member to stand with me and demand what is ours. Demand the right to pursue our livelihood without interference. Demand the respect that each of us deserves. Actively transcend the challenges we face by faithfully serving our customers. And because of their gratitude seize what is ours. We create positive change in consumers lives everyday. We help those who have given up, who don't know what to do, and who cannot possibly afford an attorney. We make Florida a better place to live, despite the zealots who would have us fined and imprisoned. Come with me out of the shadows. Bask in the sunshine. Fly into the radar. Stand with me to seize what is yours. Transform the fear into a mission to continue your work in the light of day. Stand with me and never look back.

Investigation or Harassment?

When does protecting consumers become harassment? Even without any consumer complaint about any damage done the Florida Bar has the right to initiate an unauthorized practice of law investigation on their own; for the “potential” harm that could occur. Even though no one has complained of any harm, damages, error, or mistake caused or done by a document preparer, the Florida Bar can and does investigate document preparers on the slimmest excuse. Considering that there is no required consumer complainant, all document preparers are subject to being investigated at any time at the whim of the Bar.

The Florida Bar can and does initiate unauthorized practice of law complaints against document preparers for stating in their advertising things like:

• Using the word "legal" in their business name;
• Using the word "legal" on their website;
• Using the phrase "legal services" in their business name or website;
• Offering free consultations;
• Stating their years of prior experience as a paralegal;
• Referring to herself/ himself as a paralegal or legal asssistant;
• Stating their education, degrees earned;
• Stating that document services are a low cost alternative to the high cost of attorney fees;
• Using words such as "help", "assistance", and "solutions" to describe their services.

The Florida Constitution authorizes the Florida Supreme Court to regulate and govern the practice of law:

Florida Statute 454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate.—

(2) The Supreme Court of Florida, being the highest court of said state, is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.


The Florida Supreme Court has exclusive jurisdiction regulation of the Florida Bar, regulation of admissions to the Bar, and creating and amending the Florida Rules of Court, The Florida Supreme Court, in turn delegates the authority to investigate unauthorized practice of law to the Florida Bar. The Florida Bar, as an official arm of the court, is charged with the duty of considering, investigating, and seeking the prohibition of matters pertaining to the unlicensed practice of law and the prosecution of alleged offenders.

Florida Bar UPL Rules state:


10-2. DEFINITIONS RULE 10-2.1 GENERALLY

(a) Unlicensed Practice of Law. The unlicensed practice of law shall mean the practice of law, as prohibited by statute, court rule, and case law of the state of Florida.

10-5. COMPLAINT PROCESSING AND INITIAL INVESTIGATORY PROCEDURES RULE 10-5.1 COMPLAINT PROCESSING

(b) Review by Bar Counsel. Bar counsel shall review the complaint and determine whether the alleged conduct, if proven, would constitute a violation of the prohibition against engaging in the unlicensed practice of law. Bar counsel may conduct a preliminary, informal investigation to aid in this determination and, if necessary, may employ a Florida bar staff investigator to aid in the preliminary investigation. If bar counsel determines that the facts, if proven, would not constitute a violation, bar counsel may decline to pursue the complaint. A decision by bar counsel not to pursue a complaint shall not preclude further action or review under the Rules Regulating The Florida Bar. The complainant shall be notified of a decision not to pursue a complaint and shall be given the reasons therefor.

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.

"He who represents himself has a fool for a client" ...

is a quote most often attributed to Abraham Lincoln, who was, himself, a lawyer. And, of course, there is some truth to that statement, many attorneys recognize that they may not be their own best choice in handling their own legal matter. Even as qualified attorneys, their legal specialty, experience, and knowledge may not be sufficient. For example, a corporate attorney handling his own divorce, may be a very bad idea. Also, the personal nature of family legal matters means that emotions can be at an all time high.

However, for many people in Florida, hiring an attorney is simply not an option. The cost of representation is out of reach. Many people would prefer to hire an attorney if they could, but have no choice but to proceed pro se. The barriers that pro se litigants must overcome are substantial, as the court system has a profound bias against self-represented parties -- even though around 70% of litigants in Florida family courts are, in fact, pro se.

Florida legal document preparers attempt to bridge the gap by offering document preparation services to pro se litigants. Professionally prepared documents and information about procedural rules can go a long way in helping consumers navigate the court system.

However, just as there is a strong bias against pro se litigants, there is also a strong bias against legal document preparers. Legal document preparers face frequent harassment from attorneys and the Florida Bar. It is my belief that the attorneys who attack and malign legal document preparers do so because they are at the bottom of the pack. The attorneys who attack and malign document preparers are threatened by the very existence of document preparers. They fear that consumers will turn to document preparers for their simple uncontested legal matters. And rightly so. Why does anyone need an attorney for a simple uncontested matter anyway?

Document preparation and lawyering are two completely different ball games. Theoretically, although different ball games, we both want a positive outcome for the consumers we serve.

Strike One:

I have had a couple of recent run ins with attorneys for needlessly and publicly denigrating document preparers in general. One of these run ins was on linkedin and some other document preparers saw it, and some of those document preparers also posted comments. The attorney made statements that document preparers are at best incompetent and at worst perpetrating fraud. I disagreed. He then quoted me the Florida Bar UPL rules. I acknowledged that I am well aware of our limitations regarding UPL. Then several document preparers also commented, stating that they frequently refer customers to attorneys, and in turn attorneys frequently refer consumers to them. That attorney ultimately removed his post and all the comments along with it.

I do have some sympathy for attorneys. They have painted themselves into a corner. Law schools have lowered standards considerably; and there are now something like 94,000 attorneys in Florida. And with a Florida adult population of around 16 million - that's around one attorney to every 170 Florida adults. Since many people never need an attorney, that could be some slim pickins. Also, attorneys have monumental self-induced PR problems. I don't go out of my way to malign attorneys,

And as the attorney on linkedin discovered, I don't appreciate attorneys going out of their way to malign document preparers.

Strike Two:

We recently came across an attorney site advertising family law document preparation. The attorney site states:

"Divorce is never trouble-free, but why make it harder than you have to?

For simple, uncontested cases, it’s as low as $399, and we make it as easy as 1, 2, 3:

• We’ll give you Florida Supreme Court approved forms absolutely free
• You’ll fill out the forms
• You’ll meet one-on-one with a member of our legal team to review the forms after you complete them

It’s that simple.  We’ll also explain local Court rules and give you advice about filing your case and appearing before the Court.  Plus, we’ll also provide a Notary Public service for free!

 

The clerk’s office charges fees for the necessary Florida Supreme Court approved forms and doesn’t even provide assistance when filling them out.

..., we give you the forms for free and our attorneys provide legal advice for a nominal fee".

So apparently the consumer has the pleasure of paying $399 to prepare the forms themselves. For that $399 they get handed a stack of forms, go home, fill them out, come back and review them with a "member of their legal team", who I'm guessing is a paralegal. In the real world, the forms are free, all the Supreme Court approved forms are free. Patting themselves on the back for giving away what is free seems a bit disingenuous to me. Notary services can also be free. Most banks offer free notary services to their customers providing no witness is required. Then comes the kicker the undisclosed "nominal fee". Who knows what constitutes a nominal fee in attorney world?

Strike Three:

Another family attorney site claimed the following. I do not include the site, as I do not want to provide him with free advertising. However, if you message me I'll send you the link and you can see for yourself. The site boldly claims:

We want to put the document preparation companies out of business.

"They aren't lawyers. They haven't the foggiest idea about Florida divorce law. Most are from out of state. They sell access to a software program that fills in blanks on a form. No lawyers. No real help. Mostly they get it wrong. Mostly they don't include all of the required papers. They charge too much. Some are practicing law without a license, which is a 5 year felony in Florida. The Florida Bar goes after some of them but doesn't have the manpower to shut them all down. Cyberspace can be hard to get a handle on. We aim to put them out of business, which is why we are charging so little."

This little paragraph is chock full of lies and disinformation. I won't even dignify the comments with an answer. This is a shame for consumers. Adding to consumers' confusion as to what to do and how to navigate the legal system is a true disservice.

You're OUT!

The silver lining for pro se litigants is that despite their lack of knowledge of the law, they are their own best experts on their case. It is the pro se litigant's life. To an attorney it is just another case.

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?

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.

Pre-Crime and UPL

Remember the 2002 film "Minority Report" directed by Steven Spielberg and starring Tom Cruise? Set in 2054 Washington D.C., the movie's premise was that three people with clairvoyant powers, called "Pre-Cogs" could predict crime down to the who, what, and where. Tom Cruise's character, John Anderton was in charge of the Pre-Crime Unit and believed wholeheartedly in the system's flawless accuracy. Until one day, one of the Pre-Cogs predicted that he would murder someone within the next 36 hours.

It's a riveting film that raises multiple questions about the dark side of predictive analytics. Police departments are currently testing programs that predict where crimes may occur. According to a May, 2014 article in CNN Tech by Heather Kelly, the program appears deceptively simple.

"A map of a city is marked up with small red squares, each indicating a 500-by-500-foot zone where crimes are likely to take place next. A heat-map mode shows even more precisely where cars may be stolen, houses robbed, people mugged.

The program is called PredPol, and it calculates its forecasts based on times and locations of previous crimes, combined with sociological information about criminal behavior and patterns. The technology has been beta tested in the Santa Cruz, California police department for the past year, and in an L.A. police precinct for the past six months, with promising results."

We intuitively use predictive analysis daily by making personal and business decisions based on the past. We also encounter multiple instances of predictive analytic algorithms as we navigate through life. Did you see those suggestions after you chose a Netflix film? Based on your past behavior the software generates suggestions that seem to meet your criteria. Predictive analytic models were used to predict and assess future risks in marketing mortgage backed securities. These models became more and more complex as the developers attempted to control for unknown variables. The Netflix suggestions are rarely 100% on point. And, we only have to look back to 2008 to realize that despite all the analytic models controlling for all possible unknowns; and all the king's horses and all the king's men, Humpty Dumpty still fell off the wall. The analysts failed to know all the unknowns, and failed to foresee other circumstances that finally proved their analytic models unsound. In the housing market crash, the models did not foresee that so many homeowners would default on their mortgage payments at the same time.

Florida legal document preparers encounter a special type of predictive analytics perpetrated by and through the Florida Bar UPL Committee. Most of the letters sent to document preparers upon the opening of a Florida Bar investigation about their engagement in the unauthorized practice of law, begin: "you may be engaging in the unauthorized practice of law". The basis for the allegations are more like the methods used by the clairvoyant Pre-Cogs than based on any actual past behavior. In fact, only a small percentage of UPL complaints are initiated by consumers. The lion's share of UPL complaints, in Florida at least, are initiated by attorneys or the Florida Bar UPL Committee itself. Consumer harm rarely seems to come into the picture, rather, vague assertions that are all the more sinister for their failure to even allege consumer harm are common.

A May 2014 article by Tom Gordon of Responsive Law, summarizes a recent follow up of a 1980s study of UPL by Stanford Law Professor, Barbara Rhode, Gordon states:

"Courts are also complicit in the pro-lawyer, anti-consumer bias found in UPL cases. Rhode’s article shows that courts adjudicating UPL cases rarely considered whether people were hurt by alleged UPL, much less how they were hurt. Only about a quarter of reported cases discussed public harm when litigated, despite the bar’s continued statements that UPL exists to protect the consumer. In the court cases where it was mentioned, public harm was used only to aid in determining a penalty, rather than to discuss how UPL harmed the consumer in question. Thus, even if UPL restrictions are intended to protect consumers, courts are not applying them for that purpose. 

Cases that are litigated under UPL restrictions can also include legal services rendered which were actually helpful to consumers. Regardless of whether or not the person offering legal services provided a useful or even desperately needed service, he/she can be penalized under UPL restrictions. If these rules existed to protect and aid legal customers, as the bar states, a legal service that was helpful to the person receiving it should not be litigated under UPL. Yet Rhode found evidence supporting the lack of interest in interpreting UPL cases from a consumer point of view—only 11 percent of the UPL cases discussed whether or not the violation in question had met an important public need. The UPL services in question may have actually benefited legal consumers, but the bar and the courts chose to ignore the interests of the public.

One of Rhode’s conclusions is that “[a] more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar.” The bar may state that UPL litigation is aimed at protecting the consumer, but Rhode’s article proves that this is a tired statement without much substance. While the bar may have become more adept at selling this argument, it’s no more true than it was when Rhode first studied the topic three decades ago". 

Florida publishes forms for pro se litigants to use to file family law documents. However, those forms and their instructions confuse and confound many consumers. Florida legal document preparers fill the void by preparing those documents for consumers. The Florida Association of Legal Document Preparers - www.faldp.org promotes and supports consumers and Florida legal document preparers.

What is FALDP?

Founded in 2010, we offer Florida legal consumers education, legal information, and services. We are also a voluntary trade association for Florida legal document preparers, with around 100 members statewide. Our website provides a wide array of information and resources for Florida pro se litigants, including articles, Self-Help Guides, Supreme Court approved family law forms, and online courses. Consumers can search our Member Directory to find a document preparer who provides the needed service. Our members prepare documents for family law, small claims, bankruptcy, and many other areas. Some document preparers conduct business in the traditional way - in a storefront location or office - while other document preparers are completely virtual - conducting business only over the phone and over the internet. Prospective members must submit an application and meet standards prior to joining.

Two pages have recently been added to www.faldp.org - Compliance - where consumers can complain if they feel they have been harmed by a document preparer. And, another page - Recognition - where consumers can offer feedback when they receive effective assistance from a member of the association.

Florida legal document preparers fulfill a consumer need.