If you own property and want to make sure your property is passed on to the person you choose – you need a Living Trust. We're now offering a Living Will, and an Advance Health Care Directive at no charge, when you hire us to prepare your Living Trust documents. With a Living Trust you can rest assured and later on rest in peace, knowing that your loved ones are going to receive the property you promised them – without having to wait for a judge's order to make it so. For more information please call – 800-515-0496.
What is a Living Trust?
You can cancel your living trust at any time. You completely control when and if you create, change, or dissolve your trust. When you transfer property to a Living Trust you can sell it, rent it out, improve it, or do anything else that you want to do with the property, because although the Living Trust now owns the property, you as Trustee continue to control it. A Revocable Living Trust, also called an Inter Vivos Trust is a type of ownership, designed to ensure that your assets and property are swiftly placed into the possession and control of your designated heirs.
How is a Living Trust different from a Last Will and Testament?
A Living Trust is used along with a Last Will and Testament. A special type of Will which is often used is known as a “pour over will”. In a pour over will, the will maker includes language that leaves all assets and property to the Living Trust. Even though most of the property will be transferred to the Living Trust soon after forming the trust, the pour over will accomplishes additional tasks.
Sometimes people create a trust, transfer property into that trust, but later on acquire more property. When someone dies, and some of the property was not transferred into the trust, then the property that was not in the Trust must go through probate. So when there is language like – I leave everything I own to XYZ Living Trust – the chance of inadvertently omitting property cannot happen. Everything means everything. Likewise, some types of property, unlike vehicles or real estate, do not have a document to prove title. It is difficult for untitled property to be transferred into a Living Trust during a person's life, so simply stating that everything else that a person leaves behind is left to their Living Trust keeps it simple.
How does a Living Trust avoid probate? And what is probate anyway?
Probate is the legal process in which a deceased person's property is distributed to that person's designated heirs. Many people believe that having any sort of a will avoids probate – but this is a huge blatant myth encouraged by probate attorneys everywhere. A will does not avoid probate at all, and is not designed to do so. A will makes your wishes known – that's all. When someone dies without a will there is a specific order of who inherits and how property and assets are divided. When someone dies without a will, that person's wishes are unknown, so the law must be applied to the order of distribution of assets. The decedent may not have wanted to leave anything to certain relatives, but failing to leave a will at all can easily make this happen. If there is no will at all, the diamond ring that the decedent meant to give to her niece Sally, is instead handed over to her daughter Jean – after probate that is.
With a clear and valid will probate can take anywhere from six months to two years. Dying without a will, called dying intestate, slows down the probate process more. Dying with a will makes the probate process faster and more clear, only because the decedent's wishes are known. Either way, the designated heirs cannot take possession or control of their rightful property until the judge says so.
When someone sets up a Living Trust, the assets are transferred from the person's name (we'll call that person Jane Smith) to the name of (Smith Family Living Trust) the Trust. The property is transferred during the person's life. For example, in her Living Trust Jane Smith names Jane Smith as the Trustee of the Smith Family Living Trust. Jane Smith then names another person or persons as Successor Trustees. Adult children are often chosen as Successor Trustees.
When Jane Smith dies, since she already set up the Smith Family Living Trust, her property is immediately in the control of her Successor Trustee. Or, if Jane Smith did not die, but was temporarily incapacitated the property goes into the temporary care and control of her Successor Trustee, she resumes her role as Trustee as soon as she is able.
For more information about creating a Living Trust, please contact the Florida Association of Legal Document Preparers directly - 800-515-0496 - or visit our site and browse the Member Directory which includes of listings of our member legal document preparers throughout Florida.
Thursday, March 1, 2012
Friday, February 3, 2012
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.
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.
Wednesday, January 4, 2012
Landlords and Tenants
Tenants are bad children. Even good tenants are bad sometimes, or bad sooner or later. And the part about tenants being children, well ... ask any landlord. The demands, the lies, the messes. We try to love them anyway. Long time landlords have a long standing love hate relationship with their tenants, always have always will, but the trade off is worth it – most of the time. Over the holidays I delivered a three day notice for a lady in Boston who has a rental condo in Sarasota. I didn't exactly deliver it, I posted it on the front door and took a picture. In Florida the very first step in eviction for nonpayment of rent is posting or delivering the three day notice to pay or quit.
I know, it may sound mean, terrible, and predatory to evict someone at all, especially over the Christmas holidays. The Boston landlady had not received any rent for nearly a full month before she called me. The tenant fell two months behind shortly after receiving the three day. So, the Boston landlady was out nearly $2000. during her Christmas holidays. Now who's mean, terrible and predatory?
Granted, being a landlord is not for the fainthearted. An ex of mine, now a dim memory from the distant past, thought he wanted to be a landlord. This was during the glory days of the last real estate boom. He bought a house as an investment, fixed it up, and rented it out. The only problem – the tenants paid a partial damage deposit and one month's rent, and then never paid another dime. The tenants tenanted the house for a good three months – two of which were free, since they simply didn't pay.
The ex became increasingly angry and frustrated four and more days after he posted the three day, and there were no signs the tenants were going anywhere. Late one night he went there, stood at the road, and threw rocks at the house. I wasn't there, I don't know how many he threw. I know he broke at least one window. When he got back and told me what he had done, after a melt down, telling him he not only could have hurt someone, but he could also be in jail, and probably should be – I told the ex that he was to never ever go near that house again. Although it was technically his house, I didn't care. He was not cut out for landlord life. The moral of the story, is that being a landlord is not for everyone.
We, at the Florida Association of Legal Document Preparers, http://www.faldp.org have recently launched a statewide eviction service. We know it can be tough. We know that it is difficult to hang on to property these days. We know that finding good tenants is harder than ever. We're hoping that our service will take a little pressure off. Please visit our page http://www.faldp.org/Florida-Eviction-Network.html and see how we can help.
We have absolutely nothing against tenants, in fact, we love them (most of the time ... well ... sometimes). They are the lovely people that pay rent so we landlords can pay the mortgage payment. And, by the way, my definition of a good tenant, is a tenant that pays in full and on time and doesn't tear things up.
I know, it may sound mean, terrible, and predatory to evict someone at all, especially over the Christmas holidays. The Boston landlady had not received any rent for nearly a full month before she called me. The tenant fell two months behind shortly after receiving the three day. So, the Boston landlady was out nearly $2000. during her Christmas holidays. Now who's mean, terrible and predatory?
Granted, being a landlord is not for the fainthearted. An ex of mine, now a dim memory from the distant past, thought he wanted to be a landlord. This was during the glory days of the last real estate boom. He bought a house as an investment, fixed it up, and rented it out. The only problem – the tenants paid a partial damage deposit and one month's rent, and then never paid another dime. The tenants tenanted the house for a good three months – two of which were free, since they simply didn't pay.
The ex became increasingly angry and frustrated four and more days after he posted the three day, and there were no signs the tenants were going anywhere. Late one night he went there, stood at the road, and threw rocks at the house. I wasn't there, I don't know how many he threw. I know he broke at least one window. When he got back and told me what he had done, after a melt down, telling him he not only could have hurt someone, but he could also be in jail, and probably should be – I told the ex that he was to never ever go near that house again. Although it was technically his house, I didn't care. He was not cut out for landlord life. The moral of the story, is that being a landlord is not for everyone.
We, at the Florida Association of Legal Document Preparers, http://www.faldp.org have recently launched a statewide eviction service. We know it can be tough. We know that it is difficult to hang on to property these days. We know that finding good tenants is harder than ever. We're hoping that our service will take a little pressure off. Please visit our page http://www.faldp.org/Florida-Eviction-Network.html and see how we can help.
We have absolutely nothing against tenants, in fact, we love them (most of the time ... well ... sometimes). They are the lovely people that pay rent so we landlords can pay the mortgage payment. And, by the way, my definition of a good tenant, is a tenant that pays in full and on time and doesn't tear things up.
Sunday, December 4, 2011
Call Me Pollyanna.
As Americans we must keep faith in our land of opportunity. We must continue to believe that anyone who combines a good idea, persistence, and determination, with hard work can start a business and prosper. This deep seated belief in rags to riches entrepreneurship persists despite our difficult times.
Call me Pollyanna. Most of the time I try to find the best in everything. When life gives you lemons – make lemonade. It may be my years of sales training that made me so endlessly optimistic. You have to go through the no's to get to the yeses. I have a positive saying for almost every situation, I know my Pollyanna attitude can be irritating. However, I believe, a positive outlook is necessary to achieve a positive outcome. (I just made that one up … maybe).
I have written before about this dismal economy. We are in the worst economy since the Great Depression. The current unemployment statistics are not nearly as bad now as they were then, but they're still bad. Now, unemployment in Florida is somewhere around 10%, give or take. During the 1930's unemployment was around 25%, rising to that peak in 1933. The foreclosure rate at 10% is about the same now as then.
My mother's depression era story about unemployment is that her dad, my grandpa, was temporarily out of work because he couldn't get the gas to run his crew. He had a business selling door to door, which always makes me envision Ryan O'Neill in “Paper Moon”, even though Grandpa's business was on the up an up and legal. That business closed. For a time Uncle Clifford was the only one in the household who had work, and that was only because he was a union city bus driver. They managed. They got through. Sometime in the 1930's, Grandpa, a life time entrepreneur, founded a chain of storefront bookkeeping businesses, which he owned and operated until he retired. My mom, now almost 91 years old still stops to pick up a penny on the sidewalk and regularly hands money to pan-handlers. She remembers hobos coming to their backdoor wanting to do a little work in exchange for a meal, and that her aunt never once turned anyone away.
Stubborn clouds of financial gloom loom on the horizon. But, true to form, your 21st century Pollyanna, yours truly, finds the silver lining. It may take a little thought twisting for you to consider that your unemployment or downsizing, is a blessing. But it is. And you may find it a challenge to realize that we are lucky to be living through these difficult times. But we are.
I found out a long time ago, that I am my all time favorite boss. I have owned my own businesses or been self-employed for most of my life. My bosses when I had a “real job” either loved me or hated me. The ones that loved me appreciated my hard work, creativity, and confidence. The ones that hated me thought I was a pain in the neck – although some of them appreciated my hard work and creativity. Few of the bosses that disliked me liked my confidence, which I suppose could translate into being a know it all, if you're so smart why don't you have your own business, etc.
I have freelanced as a graphic artist, and writer. I have owned an art gallery, a construction company, and a document preparation business. I have also been self-employed in various ventures that were short term or did not rise to the definition of a business.
Interspersed with my various businesses and freelance work, I have worked as a salesperson. I have sold encyclopedias, printing, generic pharmaceuticals, timeshares, software, and home based business opportunities. Nothing happens until somebody sells something. (Oops there goes Pollyanna again).
If you can't find a job – create one. Although it may seem counter-intuitive to start a new business during a recession it can actually be the best time. Also as technology evolves so do consumers needs and preferences. New needs emerge as businesses close down. Consider the rise and fall of BlockBuster, which dominated the video rental market in the 90's. And the emergence of Netflix as a leader in today's movie rental business.
Following is a list of businesses which were begun during poor economies – depression, recession, or downturn:
Hyatt Corp. - Eisenhower recession (1957 to 1958).
IHOP Corp. - Eisenhower recession, July1958.
LexisNexis - during the 1973 oil crisis.
FedEx Corp. - April 17, 1973.
Microsoft Corp. - 1975.
CNN - Recession-plagued 1980.
MTV Networks - economic slump of 1981.
GE - established in 1876, Panic of 1873, a six-year recession,
HP - end of the Great Depression.
Walt Disney Corporation – 1923-1924 Great Depression.
According to a recent “USA Today” article, 16 out of the 30 corporations that make up the current Dow Jones Industrial Average started during a recession. During the recession of the early 90s, 25% of downsized executives over 40 years old created start up companies. A poor economy may actually allow the cream to rise to the top. Some of those downsized executives may never have made it past mid-level management in their previous employment, and remained quite content, had they not been let go. Their talent may never have come to light if necessity had not demanded that they create a start up, and start over. For many, being laid off, downsized, or let go was an opportunity to shine.
Perhaps, a recession, although painful, is a natural way to jump start the economy.
According to the Small Business Administration, there are over 27 million small businesses in the United States, and between 60 and 80% of new jobs can be attributed to small business. Impressed? I am.
I am a good capitalist. I believe with all my heart in the American Dream. If you have ever considered owning your own business, the time may be right for you. Here are some questions to ask yourself:
Make a list of your skills. Brainstorm – write down anything and everything that you're good at. Do you have skills that could translate to a business? Do people you know ask for your advice or help about a certain type of project or problem?
Make a list of your interests. Anything that you enjoy. If you don't have the marketable skills that could translate into a business, are you willing and able to get the training that you need?
Do you have what it takes to start a business? If you're not sure what that is, are you willing to do the research to find out?
To learn more about starting a Legal Document Preparation Business, visit the Florida Association of Legal Document Preparers:
http://www.faldp.org/Legal-Document-Preparation-Business.html
Call me Pollyanna. Most of the time I try to find the best in everything. When life gives you lemons – make lemonade. It may be my years of sales training that made me so endlessly optimistic. You have to go through the no's to get to the yeses. I have a positive saying for almost every situation, I know my Pollyanna attitude can be irritating. However, I believe, a positive outlook is necessary to achieve a positive outcome. (I just made that one up … maybe).
I have written before about this dismal economy. We are in the worst economy since the Great Depression. The current unemployment statistics are not nearly as bad now as they were then, but they're still bad. Now, unemployment in Florida is somewhere around 10%, give or take. During the 1930's unemployment was around 25%, rising to that peak in 1933. The foreclosure rate at 10% is about the same now as then.
My mother's depression era story about unemployment is that her dad, my grandpa, was temporarily out of work because he couldn't get the gas to run his crew. He had a business selling door to door, which always makes me envision Ryan O'Neill in “Paper Moon”, even though Grandpa's business was on the up an up and legal. That business closed. For a time Uncle Clifford was the only one in the household who had work, and that was only because he was a union city bus driver. They managed. They got through. Sometime in the 1930's, Grandpa, a life time entrepreneur, founded a chain of storefront bookkeeping businesses, which he owned and operated until he retired. My mom, now almost 91 years old still stops to pick up a penny on the sidewalk and regularly hands money to pan-handlers. She remembers hobos coming to their backdoor wanting to do a little work in exchange for a meal, and that her aunt never once turned anyone away.
Stubborn clouds of financial gloom loom on the horizon. But, true to form, your 21st century Pollyanna, yours truly, finds the silver lining. It may take a little thought twisting for you to consider that your unemployment or downsizing, is a blessing. But it is. And you may find it a challenge to realize that we are lucky to be living through these difficult times. But we are.
I found out a long time ago, that I am my all time favorite boss. I have owned my own businesses or been self-employed for most of my life. My bosses when I had a “real job” either loved me or hated me. The ones that loved me appreciated my hard work, creativity, and confidence. The ones that hated me thought I was a pain in the neck – although some of them appreciated my hard work and creativity. Few of the bosses that disliked me liked my confidence, which I suppose could translate into being a know it all, if you're so smart why don't you have your own business, etc.
I have freelanced as a graphic artist, and writer. I have owned an art gallery, a construction company, and a document preparation business. I have also been self-employed in various ventures that were short term or did not rise to the definition of a business.
Interspersed with my various businesses and freelance work, I have worked as a salesperson. I have sold encyclopedias, printing, generic pharmaceuticals, timeshares, software, and home based business opportunities. Nothing happens until somebody sells something. (Oops there goes Pollyanna again).
If you can't find a job – create one. Although it may seem counter-intuitive to start a new business during a recession it can actually be the best time. Also as technology evolves so do consumers needs and preferences. New needs emerge as businesses close down. Consider the rise and fall of BlockBuster, which dominated the video rental market in the 90's. And the emergence of Netflix as a leader in today's movie rental business.
Following is a list of businesses which were begun during poor economies – depression, recession, or downturn:
According to a recent “USA Today” article, 16 out of the 30 corporations that make up the current Dow Jones Industrial Average started during a recession. During the recession of the early 90s, 25% of downsized executives over 40 years old created start up companies. A poor economy may actually allow the cream to rise to the top. Some of those downsized executives may never have made it past mid-level management in their previous employment, and remained quite content, had they not been let go. Their talent may never have come to light if necessity had not demanded that they create a start up, and start over. For many, being laid off, downsized, or let go was an opportunity to shine.
Perhaps, a recession, although painful, is a natural way to jump start the economy.
According to the Small Business Administration, there are over 27 million small businesses in the United States, and between 60 and 80% of new jobs can be attributed to small business. Impressed? I am.
I am a good capitalist. I believe with all my heart in the American Dream. If you have ever considered owning your own business, the time may be right for you. Here are some questions to ask yourself:
To learn more about starting a Legal Document Preparation Business, visit the Florida Association of Legal Document Preparers:
http://www.faldp.org/Legal-Document-Preparation-Business.html
Tuesday, November 22, 2011
In Florida - UPL is a Felony
As of 2004, a charge or conviction for the unauthorized practice of law became a felony. This change sneaked up on many legal document preparers too busy trying to make an honest living to take notice of the Florida Bar's shenanigans. Before the charge was ratcheted up it was a misdemeanor and carried a maximum $1,000. fine. Now, as a felony, the fine is up to $5000.
An article posted on the Florida Bar's website, back in 2004, when this change came about, titled, “UPL now Buys A Felony Charge”, gleefully states: “
“The new law will not mean any changes in the Bar’s UPL or disciplinary operations. The UPL Department will continue to seek cease and desist agreements and Supreme Court injunctions against unlicensed practitioners, and indirect criminal contempt citations for those who violate the injunctions. Lori Holcomb, Bar UPL counsel, said the office also will continue its practice of referring the more egregious cases to state attorneys for prosecution.”
And, stated later in that same article:
“The legislation came about after a meeting in the fall of 1982 between the House Judiciary Committee and immediate past Bar President Miles McGrane, who was then president-elect. Representatives said they had heard complaints from constituents that nonlawyers were charging hefty fees for legal matters, frequently in immigration matters, and they were doing little or no work.”
I suppose that attorneys were resentful that “nonlawyers were charging hefty fees for legal matters, … and they were doing little or no work.” After all, it is the attorneys place to do just that.
A felony on your record can damage your life. In Florida, a criminal charge with no conviction shows up in a background check with the same frequency as a conviction. A felony charge with no conviction is enough to be prohibited from working in many types of employment. Following is a partial list of jobs affected by a felony conviction or plea of no contest:
Private Security
Private Investigator
Repossession Services
Notary Public
Labor Union Business Agent
Horse Racing, Dog Racing, or Jai Alai Fronton Permit Holders and Employees
License and permits for explosive users, manufacturers, distributors, and dealers
Permit for ether distribution, manufacture, purchase,or dealing
Pest Control Operator License
Paramedic
Nurse
Acupuncture License
Anesthesiology Assistant
Athletic Trainer
Certified Social Worker
Chiropractic
Clinical Social Worker
Dentistry
Dietetics and Nutrition License
Electrolysis License
Medical License
Mental Health Counselor
Midwife
Pharmacist
Physical Therapist
Physician Assistant
There are many more types of jobs affected by a felony charge or conviction, and even though many of the rules for each state that a conviction is a prohibition for employment, a charge alone will often prevent someone from being hired or issued a license. It doesn't seem right or even reasonable, but ask anyone who has been charged with a felony and adjudication was withheld. Even though there was no conviction, and no plea of nolo contendre, more often than not, that person will still be denied a job based on failing a background check.
So now that we have established how difficult it is to find work or acquire a license for people charged with or convicted of felonies, exactly what types of crimes are also third degree felonies? Since UPL is considered a felony of the third degree, what other crimes are ranked the same? Ready? Here's the short list:
Grand Theft
Grand Theft Auto
Cocaine Possession
Possession of a Controlled Substance
Burglary of an Occupied Structure
Marijuana – Sales, Delivery, or Manufacture
Uttering a Forged Instrument
Child Neglect
This list is by no means exhaustive. There are many many more third degree felonies that this. The short list is there to give you the idea of how UPL is classified. There are levels and a point system for felonies, in addition to the degree of felony. I could not find the specific crime of the unauthorized practice of law anywhere; and I'm not sure without further research whether UPL is a level one third degree felony or a level six.
As far as I can find, the following is the only Florida Statute that specifically addresses the unauthorized practice of law:
454.23 Penalties.—Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
By now, you may be saying to yourself, that this is fascinating information … but. What is the point? Fish or cut bait. I gave you the background to drive the point home, to make sure that you know, how threatening we are. UPL laws are written for other reasons than to keep us in our place, maybe. UPL laws are also written to keep unethical actors from pretending to be attorneys when they're not. True enough, but we have fraud laws for that, which have much more teeth than this. If I were a state's attorney and received a referral for prosecution of someone posing as an attorney and taking people's money for under false pretenses, I would prosecute for fraud, not UPL.
So never doubt that UPL laws are directed at us. We are the threat. After all, people other than lawyers cannot be allowed to go around charging hefty fees and doing little or no work. Whose job is that?
An article posted on the Florida Bar's website, back in 2004, when this change came about, titled, “UPL now Buys A Felony Charge”, gleefully states: “
“The new law will not mean any changes in the Bar’s UPL or disciplinary operations. The UPL Department will continue to seek cease and desist agreements and Supreme Court injunctions against unlicensed practitioners, and indirect criminal contempt citations for those who violate the injunctions. Lori Holcomb, Bar UPL counsel, said the office also will continue its practice of referring the more egregious cases to state attorneys for prosecution.”
And, stated later in that same article:
“The legislation came about after a meeting in the fall of 1982 between the House Judiciary Committee and immediate past Bar President Miles McGrane, who was then president-elect. Representatives said they had heard complaints from constituents that nonlawyers were charging hefty fees for legal matters, frequently in immigration matters, and they were doing little or no work.”
I suppose that attorneys were resentful that “nonlawyers were charging hefty fees for legal matters, … and they were doing little or no work.” After all, it is the attorneys place to do just that.
A felony on your record can damage your life. In Florida, a criminal charge with no conviction shows up in a background check with the same frequency as a conviction. A felony charge with no conviction is enough to be prohibited from working in many types of employment. Following is a partial list of jobs affected by a felony conviction or plea of no contest:
Private Security
Private Investigator
Repossession Services
Notary Public
Labor Union Business Agent
Horse Racing, Dog Racing, or Jai Alai Fronton Permit Holders and Employees
License and permits for explosive users, manufacturers, distributors, and dealers
Permit for ether distribution, manufacture, purchase,or dealing
Pest Control Operator License
Paramedic
Nurse
Acupuncture License
Anesthesiology Assistant
Athletic Trainer
Certified Social Worker
Chiropractic
Clinical Social Worker
Dentistry
Dietetics and Nutrition License
Electrolysis License
Medical License
Mental Health Counselor
Midwife
Pharmacist
Physical Therapist
Physician Assistant
There are many more types of jobs affected by a felony charge or conviction, and even though many of the rules for each state that a conviction is a prohibition for employment, a charge alone will often prevent someone from being hired or issued a license. It doesn't seem right or even reasonable, but ask anyone who has been charged with a felony and adjudication was withheld. Even though there was no conviction, and no plea of nolo contendre, more often than not, that person will still be denied a job based on failing a background check.
So now that we have established how difficult it is to find work or acquire a license for people charged with or convicted of felonies, exactly what types of crimes are also third degree felonies? Since UPL is considered a felony of the third degree, what other crimes are ranked the same? Ready? Here's the short list:
Grand Theft
Grand Theft Auto
Cocaine Possession
Possession of a Controlled Substance
Burglary of an Occupied Structure
Marijuana – Sales, Delivery, or Manufacture
Uttering a Forged Instrument
Child Neglect
This list is by no means exhaustive. There are many many more third degree felonies that this. The short list is there to give you the idea of how UPL is classified. There are levels and a point system for felonies, in addition to the degree of felony. I could not find the specific crime of the unauthorized practice of law anywhere; and I'm not sure without further research whether UPL is a level one third degree felony or a level six.
As far as I can find, the following is the only Florida Statute that specifically addresses the unauthorized practice of law:
454.23 Penalties.—Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
By now, you may be saying to yourself, that this is fascinating information … but. What is the point? Fish or cut bait. I gave you the background to drive the point home, to make sure that you know, how threatening we are. UPL laws are written for other reasons than to keep us in our place, maybe. UPL laws are also written to keep unethical actors from pretending to be attorneys when they're not. True enough, but we have fraud laws for that, which have much more teeth than this. If I were a state's attorney and received a referral for prosecution of someone posing as an attorney and taking people's money for under false pretenses, I would prosecute for fraud, not UPL.
So never doubt that UPL laws are directed at us. We are the threat. After all, people other than lawyers cannot be allowed to go around charging hefty fees and doing little or no work. Whose job is that?
Wednesday, November 16, 2011
Socialism? ... Be Careful What You Wish For.
In response to my last post about the Occupy Wall Street Gang, a friend wrote me the following email with permission to post and give her credit (as credit is due):
I am originally from the Ukraine.
In reference to communism v.s, capitalism I can tell you from my first hand experience about living in the USSR. We left out of there more than 30 years ago like a "bat out of hell". I can tell you that it was no different than the system we are heading to with this administration. I stood in lines for food and other necessities with my parents, lived in a one room small communal apartment with mom, dad and great-grandma who watched me after school while my parents worked. I was subjected to constant communist propaganda and got into trouble in school once because I made an innocent childish comment about Lenin. My parents were called into the school director's office and chastised for poor communist parenting skills. My parents were not party members, they chose not to be, and they wanted to follow their Jewish culture that was brutally oppressed by the regime. We had no shower and a communal kitchen for our family and four other neighbors. There was one stove, one sink, and one bathroom, which led to constant arguments.
As for education and medical care, yes, we had excellent schools and universities that were free, but the preference was once again given to upper echelon members of the communist party -- and nepotism was rampant. Yes, we had free medical care with amazing doctors, most of them women who were paid barely enough to live on. Our hospitals were decrepit, and lacked equipment and medicine. Family members had to provide the necessities for patients. I remember having a tonsillectomy without anesthesia while my mom held me down and the doctor did his thing, with a bucket in front of me to catch the blood. We had excellent free dental care, doctors made house calls. But, everyday we had to carefully watch what we said. My parents could get fired if they opposed the government or refused to attend a rally. Members of the communist party could get away with a lot, and had many privileges. I want to remind everyone to remember to never forget Stalin, Khruschev and the gang.
Those are my memories of communist/socialist state. It was a real life dystopia. The memories of my childhood and my city are much more pleasant if I take away the "system" aspect.
by Ella Jou
I am originally from the Ukraine.
In reference to communism v.s, capitalism I can tell you from my first hand experience about living in the USSR. We left out of there more than 30 years ago like a "bat out of hell". I can tell you that it was no different than the system we are heading to with this administration. I stood in lines for food and other necessities with my parents, lived in a one room small communal apartment with mom, dad and great-grandma who watched me after school while my parents worked. I was subjected to constant communist propaganda and got into trouble in school once because I made an innocent childish comment about Lenin. My parents were called into the school director's office and chastised for poor communist parenting skills. My parents were not party members, they chose not to be, and they wanted to follow their Jewish culture that was brutally oppressed by the regime. We had no shower and a communal kitchen for our family and four other neighbors. There was one stove, one sink, and one bathroom, which led to constant arguments.
As for education and medical care, yes, we had excellent schools and universities that were free, but the preference was once again given to upper echelon members of the communist party -- and nepotism was rampant. Yes, we had free medical care with amazing doctors, most of them women who were paid barely enough to live on. Our hospitals were decrepit, and lacked equipment and medicine. Family members had to provide the necessities for patients. I remember having a tonsillectomy without anesthesia while my mom held me down and the doctor did his thing, with a bucket in front of me to catch the blood. We had excellent free dental care, doctors made house calls. But, everyday we had to carefully watch what we said. My parents could get fired if they opposed the government or refused to attend a rally. Members of the communist party could get away with a lot, and had many privileges. I want to remind everyone to remember to never forget Stalin, Khruschev and the gang.
Those are my memories of communist/socialist state. It was a real life dystopia. The memories of my childhood and my city are much more pleasant if I take away the "system" aspect.
by Ella Jou
Sunday, November 6, 2011
So what did you do with the money?
Years ago, I embraced communism as the best of all possible systems. To each according to his needs – from each according to his abilities. It sounds so fair and good. If I could not do for myself, then a benevolent government would step in and provide for me. If I needed housing, healthcare, or food, the government would happily hand it out. In turn, once I was able I could do good works and pay back so that others in need could be helped. That was years ago, I grew out of that magical mindset. Read George Orwell's “Animal Farm” and you'll see why I turned my back on communism.
I fervently embrace capitalism now as the best system ever created. The United States is still the greatest country in the world. The Occupy Wall Street (OWS) protests remind me of the seventies – not the sixties, the seventies. The sixties were all about focused political protests against the U.S. involvement in the Vietnam War. In the seventies the movements of the sixties split into two factions – back to nature and disco dancing. The seventies was the after party that carried on for a decade. The protests that were still going on were heavily infiltrated by drug addicts, criminals, and hard core partiers. Remember the Manson family? The chains of events that began in the sixties ended in the seventies. But, in this Occupy Wall Street system of protests it seems to me that the important events are non-events. Nothing noteworthy has happened.
I'm personally pleased that most of the big banks have backed off on their proposed debit card fees. So far, Bank of America, Regions, Chase, and Wells Fargo have decided against charging customers a fee for using their debit card. I'm happy about that, I was going to close my account. I'm happy to save $5. a month. But, come on, isn't all this a whole lot of hoopla for such meager results?
The OWS favorite slogan is: We are the 99%. Meaning that the 1% controls the wealth of this country. I don't doubt it. They [the OWS protesters] pride themselves on having no leadership. They have even named their lack of leadership, calling it a a “horizontal system” and call themselves the “horizontals”. I can't imagine that lack of leadership can really be a good thing. It sounds good, more or less like my own fascination with socialism when I was in high school. Sounds good, but as a practical matter – no thank you. Human nature gets in the way. Prior to Hitler taking control, Germany was leaderless.
I can understand that people are angry. Angry at the world, these are tough times. People have lost their jobs, lost their homes, they can't find new jobs, its impossible to get a bank loan – people feel stuck. The economy is miserable. Unemployment is 9-14% depending on who you listen to. Foreclosures continue. People feel that they have been taken advantage of by corporate America -- not given a fair chance. They want to redistribute the wealth. They want their fair share, an even break. I am somewhat sympathetic.
I agree that the blame for the state of the current economy rests firmly on the backs of the powerful. The burden of blame is shared by the public and private sectors. The public sector for allowing the ridiculous combination of regulation and deregulation; and the private sector for finding and using every advantage possible against a [mostly] unsuspecting citizenry. The government deregulated the mortgage industry to make themselves seem wise and add to their popularity; and the private sector [wall street traders, mortgage bankers, and realtors] ran with it.
The public is not off scot free, some were, for real and truly, so naïve as to be duped into believing that the modest house they owned, bought, or were buying was really worth the price of a mansion. Tulipmania. Some other citizens, now singing the blues, took full advantage of the free wheeling nearly punch drunk money machines, formerly known as their homes. And when the money machine went tilt, they began to scream with the rest of them. And, yes many others, are at neither extreme, and were just caught up in this dismal economy one way or another, and now protest, hoping someone in power will listen.
I'm not convinced that the protesters are aware of history. The masks they wear are of Guy Fawkes, who, in 1605, was hanged for treason for plotting to blow up the British Parliament. November 5 is celebrated as Guy Fawkes Day to celebrate his death – not his life or accomplishments.
Remember, remember, the 5th of November
The Gunpowder Treason and plot;
I see of no reason why Gunpowder Treason
Should ever be forgot.
Guy Fawkes, Guy Fawkes,The Gunpowder Treason and plot;
I see of no reason why Gunpowder Treason
Should ever be forgot.
'Twas his intent.
To blow up the King and the Parliament.
Three score barrels of powder below.
Poor old England to overthrow.
I don't know why the OWS would want to identify themselves or their cause with Guy Fawkes.
The OWS is making serious tactical errors. If they want their way, if they want to reach their goals, they need to make their demands known soon, very soon. They have attracted the world's attention – now what?
“Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress.” Frederick Douglass
If the OWS waits much longer before making their demands, the world will stop listening. We will grow bored with their antics and find another media frenzy to follow on the world stage.
According to their own report, the OWS, has collected over $500,000. in donations to their cause. My biggest questions is how are they spending the money? To benefit the few, – or to benefit the many?
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