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.

Please sign our petition!

Dear Customers and Friends:

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

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

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

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

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

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

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

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

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

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

Thank you so very much for your support!

Ruth Tick and the FALDP Team.

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. 

I am for justice.

I am a Florida legal document preparer and the statewide Director of the Florida Association of Legal Document Preparers (FALDP). I am not a paralegal. By definition, paralegals work directly under the supervision of an attorney, I do not. I work directly for consumers who are representing themselves in a court case. Self-represented consumers are called pro se litigants. I call these consumers customers. I don't call them clients, mostly because that's what attorneys call their customers, and I don't want to be anything like or run my business anything like an attorney.

In fact, I go to great pains to not operate like an attorney. Most importantly, I don't give legal advice. My customers always know that I'm not an attorney. In fact, they cannot avoid knowing that I'm not an attorney. My business is virtual, everything I do is over the phone and over the internet. I never meet with my customers face to face. In the first telephone conversation I have with any new or potential customer, I say: As you probably know, I'm not an attorney, I'm a Florida legal document preparer. And what that means is I can prepare documents, explain procedure, and give you legal information, but I cannot provide advice or representation. Frequently I have to interrupt my new or potential customer to get those words said.

The potential customer called with a question. They almost always begin the conversation with – I have a question. After I say my thirty second speech, I then say – and I'll answer your question as I can. They they ask the question, which frequently begins with – how much would you charge – for whatever it is that they need.

I listen to what they need, may ask a few questions for clarity, and then tell them what I charge. This is not called a consultation and is especially not called a “free consultation” although that is exactly what it is. It is called a conversation. Document preparers are specifically prohibited from offering free consultations according to Florida case law which found that a “free consultation” is something that an attorney offers and does, and document preparers are not allowed to offer or do free consultations because a free consultation amounts to the unauthorized practice of law (UPL). Go figure. So its called a conversation.

After the conversation, I request the consumer's email address and tell them, my next step is to send them an email which will include a summary of this conversation, all of my contact information, a price quote, and a link to my website. I tell them they can submit payment on my site through paypal.

The email I send always says the same thing, except for the exact type of service they requested varies according to their request. For example, if the consumer wants a divorce and has children, my email says.

Hi ….,

I'm following up our phone conversation for document preparation for a Petition for Dissolution of Marriage with Children. As we discussed, my fee is $255 for the petition documents; and an additional $75 for the Parenting Plan. Please visit my site to learn more about my services – www.for-the-people-of-Florida.com – and you can submit payment on my site with a credit or debit card through paypal whenever you're ready.

Thank you for the opportunity to assist you.

Best Regards,

In the signature of my email I include these words: I am not an attorney and do not provide legal advice. When a customer goes to my site he sees those words again. Before the customer submits payment he is required to click a box to acknowledge that he has read my disclaimer, disclosure, and site policies. Without clicking the box, he cannot arrive at the payment page. The disclaimer, disclosure and site policies are here - http://www.for-the-people-of-florida.com/disclaimer-and-disclosure.php

After the customer pays, I intake the information I need to prepare their documents. If the customer wants divorce documents prepared or any other type of family law documents prepared, I set up a phone appointment so that I can intake their information during a phone call. Forms for family law are on the Florida Supreme Court's site – www.flcourts.org – and the rule is that when a document preparer is using Florida Supreme Court approved forms, she can intake the information verbally. So that's what I do. Family law forms are nearly the only Florida Supreme Court approved forms in existence. Even forms for federal filings such as bankruptcy and immigration are not considered Florida Supreme Court approved forms.

I don't prepare forms for bankruptcy or immigration. I do, however, prepare other types of forms which are not Florida Supreme Court approved. I prepare documents for Early Termination of Probation, a few Expunge & Seal, Answers for civil court, and Summary Administration of Estate. For all of these I intake the customer's information in writing. Exactly how that works is the subject of another article which will be coming soon.

The reason I'm writing this series of articles is that I want to make it clear to consumers, potential customers, attorneys, and the Florida Bar exactly what I do. I also want everyone to understand why I do what I do. I am for the little guy. I am for the downtrodden. I am for the consumer who needs documents and hiring an attorney is out of the question. I am for justice. 

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.

The ABA is Preaching to the Choir

A recent article by Lisa Needham, "A Quick Look at the ABA’s Report on the Future of Legal Services" (8/9/16) published on www.lawyerist.com made the following statement.

"The access to justice gap remains enormous. Legal aid organizations are overtaxed, pro bono representation can’t meet the need, and other initiatives have fallen far short".

My observations and replies are as follows:

I have been writing about the justice gap for some time, and it is far more than a "gap".More like a canyon. A gorge. An abyss. Legal aid organizations are overtaxed. For every person helped, another is turned away. The 2009 ABA report on the Justice Gap reported: 

" Lack of resources, however, continues to be the major factor why LSC-funded programs turn away half of those seeking help. Closing the justice gap will require a multifaceted approach that includes increased funding by federal and state governments, private funders and concerned private parties, and increased pro bono contributions by individual lawyers." Now nearly seven years later, little has changed.

Pro bono representation can't meet the need. Although, in theory, attorneys are required to provide 20 hours per year in pro bono services, Palm Beach County officially allows attorneys to buy out their pro bono obligation for as little as $350 per year. Many attorneys charge $350 per hour, one hour of time versus 20 hours of work is a simple economic choice. The following is posted on the Palm Beach County Bar Associations website:

"In Palm Beach County, the Legal Aid Society of Palm Beach County is the designated agency for administering Florida's Pro Bono Plan. That plan, outlined in Rule 4-6.1, Rules Regulating the Florida Bar, describes lawyers' professional responsibility for pro bono service. The professional responsibility may be discharged by: (1) annually providing at least 20 hours of pro bono legal service to the poor; or (2) making an annual contribution of at least $350 to a legal aid organization." 

Other initiatives have fallen short. Florida's Commission on Access to Justice has been discussing and debating various initiatives for the past year or two with very little actual change or improvement. Florida legal document preparers are, at best, routinely overlooked as part of the solution. And, at worst, routinely intimidated from prospering and growing their businesses due to the Florida Bar's continuous intimidation. 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 Florida Bar recognizes that document preparers are here to stay, that we provide a sought after and necessary service, and we do not seek to take work away from attorneys -- we, as business professionals, will remain disenfranchised, vulnerable, and ineffective.

I now ask FALDP members and all document preparers to stand with me and demand that our right to be let alone be upheld, and let us be free to pursue our livelihood without interference. That our business disenfranchisement be transformed by the gratitude of our satisfied customers. Demand that our vulnerability become our strength in our willingness to assist our customers despite the zealots who would have us fined and imprisoned. And finally affect our customers, our communities, and the world in positive ways by continuing to assist consumers as is their right.  

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.

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.

Who Is a Bankruptcy Petition Preparer?

There is information all over the world wide web about how to prepare your own bankruptcy documents. Its possible, the forms are free downloads from the various Federal Bankruptcy websites. But there are many forms, and many people just do not want to prepare them themselves. And, most people only file for bankruptcy once in their life and the time it takes to learn about all the forms and procedures for that one time filing may seem unreasonable and overwhelming.

Nonlawyer Bankruptcy Petition Preparers are a recognized part of the system. [11 USC § 10]

NOLO SAYS:

"Who is a Bankruptcy Petition Preparer?

A "bankruptcy petition preparer" is a person who, for compensation, prepares any document for filing by a debtor in connection with a case in the bankruptcy or district court. A bankruptcy petition preparer is any person or business, other than a lawyer or someone who works for a lawyer, that charges a fee to prepare bankruptcy documents. Under your direction and control, the bankruptcy petition preparer generates bankruptcy forms for you to file either by typing them or inputting information into a bankruptcy software program.

Because bankruptcy petition preparers are not attorneys, they cannot provide legal advice or represent you in bankruptcy court. This means that the bankruptcy petition preparer cannot:

• tell you which type of bankruptcy to file
• tell you not to list certain debts
• tell you not to list certain assets, or
• tell you what property to exempt.

In essence, you must understand what debts your bankruptcy will discharge, what will happen to your property in the bankruptcy, and what laws should be used to exempt your property from being taken for the benefit of your creditors.

In addition, you must file the bankruptcy papers yourself and represent yourself in court. In other words, you are responsible for your case. You act as your own attorney and use the bankruptcy petition preparer as a typing service that transposes the information you give them onto the official forms."

FAIR ENOUGH.

HOWEVER:

I recently heard from a document preparer, who actually isn't even preparing bankruptcy documents at all -- he sells a bankruptcy kit - an organizer. Consumers purchase his kit, and return the filled in information so that a Bankruptcy Petition Preparer can then input that information into a software program which generates the completed documents. The completed documents are then returned it to the customer for filing. All of the monies spent by the consumer are disclosed as required under the federal bankruptcy rules.

A Federal Bankruptcy Trustee is in the process of running this document preparer out of business. The Trustee went so far as to tell the document preparer that he is on a mission to derail all bankruptcy petition preparers in the country. Despite the simple fact that Bankruptcy Petition Preparers are a recognized part of the system. Despite the fact that written materials explaining how to prepare documents are protected as free speech under the First Amendment. And despite the fact that many consumers cannot afford attorney fees, and would go without altogether, but for the assistance of a document preparer.

THIS HURTS CONSUMERS.

Bankruptcy Petition Preparers charge around $200. to complete required forms for a Chapter 7 Personal Bankruptcy. Attorneys charge around $2000. Attorneys can advise bankruptcy filers as to which bankruptcy chapter to file under; whether to file bankruptcy; and advise filers as to which assets are exempt -- Bankruptcy Petition Preparers cannot.

The choice between using a bankruptcy attorney or a Bankruptcy Petition Preparer is not apples to apples. The choice is more like - between hamburger and filet mignon. The budget sometimes dictates our choices. And, obviously, consumers filing bankruptcy may simply not be able to afford attorney pricing. If you can't afford the filet, having a hamburger isn't so bad.

If that Trustee has his way, anyone that can't afford the filet goes hungry.

Document Preparers - Look at This!

The following was just sent to me by an associate who was perusing craigslist. It is reprinted here verbatim from the Tampa Bay Legal services section. There was no contact information at all, not even a scrambled address. I would say it was not by any means posted by the Florida Bar UPL Committee, can you see why? Intimidation? Threats? Misinformation? Disinformation? Yes, yes, yes, and yes. Please comment.

Unauthorized Practice of Law
Date: 2012-04-27, 10:07AM

If you advertise for legal services, including legal document preparation, you are practicing law without a license.

Engaging in the unlicensed practice of law is also a misdemeanor in Florida. Criminal complaints alleging the unauthorized practice of law ("UPL") are handled by the State Attorney's Office. The penalties include a fine and/or a jail sentence. Additionally, if a notary public is found to be engaging in the unauthorized practice of law, the Governor may suspend that notary from office by executive order. Paralegals cannot help a customer directly and may only work under the supervision of a licensed attorney.

Exactly what services can you provide without engaging in the unlicensed practice of law? Generally speaking, a nonlawyer may only sell legal forms and then type those forms which have been completed in writing by the customer. As an example, you could sell a will form to an individual. The customer would have to fill in the blanks for the factual information customizing the will to his or her own needs. You can have no oral communication with the customer regarding how the form should be completed, and you may not correct mistakes. You may simply type the information written down by the customer.

Craigslist has been notified of the number of posting advertising such services in violation of Florida law and has agreed to forward the names and contact information of violators to the appropriate county's State Attorney's Office.

Please, if you are not an attorney, do not advertise legal services - on Craigslist or anywhere else. You may be risking a jail sentence.

Location: Florida
it's NOT ok to contact this poster with services or other commercial interests

Original URL: http://tampa.craigslist.org/hil/lgs/2982160742.html