"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.

We ARE Disruptors

We are disruptors, and - yes - proud of it. I am happy that we disrupt the status quo. I am happy that we present an alternative to consumers. If the legal world had properly served consumers, we would not exist. Legal document preparers are here to stay. We have a foothold. Around 70% of family law litigants are pro se -- self represented. Many of the self-represented employ legal document preparers to prepare their paperwork. Some of them cannot possibly afford an attorney. Others have no desire to retain an attorney. And still others have no need for an attorney.

If, we legal document preparers, present a viable alternative for consumers - then why not? Consumers who cannot afford an attorney are not lost clients for attorneys - it was never possible for them to be attorneys' clients at all. Price being the governing factor. It makes no sense for Mercedes Benz to be upset with Kia for stealing their customers. Not the same customer, not the same demographic.

Some consumers can well afford an attorney but choose not to retain counsel. They either feel that they can easily handle their legal affairs themselves, or feel that an attorney will cause them to spend money needlessly.

Still other consumers do not need an attorney at all. They only need papers. They only need documents prepared; they are well aware of their rights and issues; and there is no legal dispute. Many of these consumers realize that if they retained counsel, it is quite possible that an attorney could create a dispute where none existed before. No dispute = no billable hours.

I have no goal to malign attorneys. They don't need my help in discrediting their profession. The numbers speak for themselves. Since 70% of family law litigants are attorney free - one can only surmise that a fair percentage of them could afford counsel if they chose.

I, as a legal document preparer, receive some attorney referrals. One of the attorneys who refers to me [we'll call him John] has done so for the past several years and I am rarely able to reciprocate, as he really only wants family law mediation clients. And I rarely have this type of customer to refer. I can only say Thank You. I suppose John refers to me because in his opinion the consumer is better off paying my lower fee and spending their money to take care of their children; rather than paying his fee and their having to stretch financially to pay it. In all these years, only once has there been a problem. The soon to be ex disputed jurisdiction for the divorce as the couple still had marital property in another state. I referred her back to John, then she came back and asked me to prepare a voluntary motion to dismiss. Which I did at no cost.

Even more than I appreciate the compensation John's referrals bring, I appreciate the respect he gives me by sending his clients my way.

On the other hand, I recently severed ties with an attorney, we'll call her Mary. She and I had an arrangement in which she would offer my customers a low cost consultation; and then in theory send them back to me for document preparation. No one ever came back. It was a legal Bermuda Triangle. She had presented herself to me as an advocate for pro se litigants and a friend to Florida document preparers. Although it took me a while to catch on, the truth came out. Beware the wolf in sheep's clothing. I was blind sided, and I have yet to forgive myself for that. She displays the following on her site:

" ... many people are opting to use document preparers who can complete divorce forms at low cost, affordable rates. And while this is an attractive option, most document preparers have little or no legal training or experience outside of document preparation. ..."

That statement isn't particularly true. Most document preparers have extensive experience and academic training, including B.A. degrees in Legal Studies; paralegal certificates; years of law firm experience; JD degrees; law degrees from other states or countries; and lots of hands on experience. A few document preparers are self taught - graduates of the school of hard knocks.

The first big difference between John and Scarey Mary is that John wants to serve the consumer; while Mary wants to serve herself. The second difference is that John is established in his profession; while Mary is competing with nonlawyer lay practitioners. As a consumer, that in itself would be enough to scare me away from Mary. Did she, and other attorneys of her ilk, really go to law school to learn how to fill out forms. Scarey. Mary.

Legal Access - I don't know what it is but I'll know it when I see it. (I hope!)

I frequently write about legal access. Citizens' right to access the legal system. What does legal access mean? And how does it feel? Will we recognize it when we see it? I don't know. Back in 2009 mandatory mediation of foreclosures of homesteaded property was required. In 2010 the mandate was abandoned – http://www.discourse.net/2011/12/florida-supreme-court-axes-foreclosure-mandatory-mediation-program.html. The Department of Justice has created the Access to Justice initiative, which sounds like a great idea, their website is very nice. And their words well chosen. But, I still don't know.

A 2010 Huffington Post article by Dan Froomkin asks - “Why haven't more Americans successfully sued the banks that lured them into fraudulent mortgages, then foreclosed on them without the required paperwork?” Good question. The full article, “Access To Justice In U.S. At Third-World Levels, Says Survey” continues to state that the United States is among the lowest ranking country of all developed countries.

According to an article, “Pro bono attorneys provide legal guidance to community” published online and in the Daily Record, a group of Jacksonville attorneys hosted a legal phone in where anyone could call in and ask a legal question. The article states: “The purpose of the event was to assist the public with consumer law issues in the areas of foreclosure defense, bankruptcy, collections and garnishments”. And continues … “ During the two-hour news broadcast, the attorneys provided brief counsel and advice to approximately 115 callers.” Again, a start, but I still don't know.

What would access to the legal system feel like? What if a citizen could ask a legal question and get an answer for free? Or what if, after paying a court filing fee a citizen could ask the clerk what to do next and get an answer? What if an unwed father's paternal rights were fully established at a child support hearing? What if pro se litigants were extended the same respect as citizens represented by attorneys? What if there was no such thing as legalese? What if laws were written in everyday language?

One of the huge and obvious barriers to legal access is the cost. Legal document preparers are allowed to give legal information. Attorneys are allowed to give legal advice. Many people are quite satisfied with information, and do not need legal advice. The cost for having a legal document preparer prepare documents is about 10% of the cost of an attorney preparing the same documents. Are the services identical? No. Should they be? No.

We believe that as our industry gains credibility, and more citizens know that we exist, some of the financial barriers to legal access will come tumbling down. The legal document preparation industry is here to stay. We exist to serve consumers. We are niche businesses. And our niche is widening.

People United for Legal Systems Equality – P.U.L.S.E. has an online petition which begins:

“The Sixth Amendment to the U.S. Constitution has been interpreted to provide EVERY AMERICAN with the CONSTITUTIONAL right to self-representation, if they so choose. That privilege, like all other constitutional rights, should be enjoyed without fear of harassment, prejudice, or abuse. Furthermore, no law, regulation, or policy should exist to abridge or surreptitiously extinguish that right...” Click here to sign.

There is a second petition here - http://www.ipetitions.com/petition/faldp/

Please sign these petitions if you agree. We need your support. Our country's founding fathers believed that the establishment of Justice was a goal worth fighting for. We agree.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.

The Perfectly Acceptable Legal Solution – Better Than Good Enough

When faced with a legal question, the immediate problem is the difficulty in knowing which specific course of action is the right course. Many consumers tackle this by educating themselves. For example, a divorcing couple is almost always faced with multiple decisions that may affect the rest of their lives, and the lives of their children.

Hiring an attorney could be a possibility. But, for many consumers, the costs are so high, that hiring an attorney cannot even be considered. Pro bono legal help is nearly non-existent. Legal aid resources are spread so thin that many who qualify are turned away. Like it or not, many consumers have no other choice, but to go pro se.

Information about divorce and family law is readily available online through the wonders of the internet. But – there is so much information now, the next problem is that consumers must sort through the zillions of web pages that come up. Information overload in the information age.

The Florida Supreme Court and the Florida Bar graciously create and publish cookie cutter forms for family law matters. Sadly, (or not so sadly for legal document preparers), the cookie cutter forms and their accompanying instructions are confusing for many pro se litigants. They are written so that a reading level above high school level is needed to comprehend them. The difficulty of understanding the forms and instructions; the unfamiliar subject matter; the stress of divorce; and the importance of the matters at hand create multiple hurdles for the average pro se. The more mentally agile and motivated consumers become adept at leaping through the flaming legal hoops to reach their personal family legal goals – divorce, child custody, family adoption, property settlement, child support, and so on.

Enter the Florida legal document preparer. The Florida Bar would prefer we call ourselves – non lawyers. I rather like the term – Unlawyer – but it hasn't quite caught on yet. Legal self help, pure legal DIY, and the use of legal document preparers is often referred to “in the literature” as “good enough” legal services. I would like to change that term. I think the “good enough” term is damning with faint praise, a backhanded compliment. I prefer the term – perfectly acceptable legal services. As in – documents prepared by legal document preparers are perfectly acceptable. Or this standard form is perfectly acceptable. Now doesn't that sound better than “good enough”? Wouldn't a consumer be happier to purchase perfectly acceptable legal services than good enough legal services?

According to a recent article by Michael DeBord on Southern California Public Radio, www.scpr.org - “LegalZoom IPO: Be afraid, lawyers! Be very afraid!”

“The legal professional is being totally re-arranged by the economic downturn. Law firms have imploded. Law school grads — who used to be able to bank on fat salaries in exchange for 100-hour work weeks at big firms, if they attended top programs ... — are struggling to find jobs. Law is no longer the often-boring but generally reliably lucrative escape hatch it once was for decades of career-confused liberal arts majors.”

LegalZoom announced that it will be going public soon. According to reports, in 2011 490,000 orders were placed through their website; over two million customers have been served over the past decade; and their revenue in 2011 was $156 million. In addition to their legal document services LegalZoom now offers attorney legal services by subscription.

The benefit for consumers and for legal document preparers everywhere is that LegalZoom's high media profile brings credibility and legitimacy to the legal document preparation industry. They are successfully paving the way for other online document preparation providers to market their services more aggressively. And there is plenty of room for plenty of players, niche businesses, and support companies.

With legal fees averaging $200. per hour, consumers increasingly welcome legal document preparers services as – perfectly acceptable. Much better than good enough.

Information Asymmetry – What You Don't Know Can Hurt You.

I see it a lot. Information asymmetry occurs when one person has access to a lot more information than the other person. Auto mechanics, webmasters, realtors, doctors, and yes, lawyers all have access to specific information that is beyond the understanding or reach of the average person. I recently read a court transcript of a final divorce hearing. The former husband brought me the transcript, wanting me to prepare a petition to modify his alimony. We'll call him Joe. His wife had an attorney at the final hearing, Joe did not. As I read the transcript, the neon words flashing in my mind were – sheep to slaughter.

During the hearing Joe expressed in various ways, numerous times that he did not understand what was going on. Joe is mentally competent, English is his native language, but he has no understanding of the law or legal system. Joe is not unusual. Lack of understanding of the law and legal system is common in America. The obfuscation is by design. If we could all understand the law, there would be no reason for lawyers to be.

On Joe's march to slaughter the wife's attorney convinced the judge that Joe should pay over half of his monthly income to his former wife. Joe earns slightly less than the Florida individual median income of around $27,000; and substantially less than the $47,000. household median income. By Joe's estimates, after taxes he ends up with about $4.00 per hour. The wife's attorney also convinced the judge that the alimony should be permanent, because not only was it a long term marriage, but the wife is allegedly unable to work. No medical evidence – not even a scribbled note from a doctor -- was offered to support the wife's assertion that she is unable to work. This lack of any shred of documentation leads us to wonder, if she is unable to work, why doesn't she apply for disability? Joe, who is already almost 60, will, in just a few years, be paying alimony out of his social security.

And it wasn't even that Joe never had legal advice. He did. He hired an attorney when he initiated the divorce. But, Joe's funds ran out right before the final hearing, so he was in court by himself, $3,500 poorer. The money that he spent on his attorney was wasted. Although the legal work was well done and worthwhile, Joe had no understanding of the documents and no use for documents he did not understand. Too bad the attorney bailed right before the final hearing.
Among other things that Joe didn't know before or during the hearing was that maybe he could request the court to order the wife pay for his attorney, and he could have continued to be represented. Maybe Joe's attorney could have suggested it, but he didn't. Joe didn't know to ask his wife to prove she couldn't work. Or if he knew to ask, he didn't know how to ask.

I work hard everyday to educate and inform consumers about their legal system. I carefully walk the tightrope, and gingerly avoid offering legal advice. Instead of legal advice, I offer consumers legal information. And, I teach consumers how to find legal information that is specific to their circumstances. I want the playing field to be level. I want my customers to have a fighting chance. Do your research before you go to court. If you need information – just ask – we're here to help.

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.