Spelling and grammar checking immigration forms is OK; giving legal advice is still prohibited
Because of rampant abuse in the area, nonlawyers should not be allowed to engage in oral communication when assisting people in filling out immigration forms, according to The Florida Bar.
But nonlawyers who help clients fill out Supreme Court-approved legal forms should be allowed to run a computerized spell-checking, grammar-checking, and proofreading program on clients’ answers to fix obvious mistakes and where the corrections do not require discussions with the clients.
The Bar’s Standing Committee on the Unlicensed Practice of Law recently clarified those positions at the request of the Supreme Court.
The committee has also undertaken, at the court’s request, an examination of what to do when respondents in UPL cases fail to pay monetary penalties ordered by the court.
The court last year asked the Bar to study the immigration issue, posing this query in a letter from Clerk Thomas D. Hall:
“The issue to be considered is whether the exception set forth in Rule 10-2.1(a), which allows a nonlawyer to engage in only limited oral communications to assist a person in the completion of a legal form approved by the Supreme Court of Florida, should operate to prohibit a nonlawyer from engaging in oral communications to assist a person in the completion of immigration forms which have been provided by the federal government.”
The Bar referred the matter to the UPL Committee, which answered the question in the affirmative.
A letter to the court from UPL Chair Bruce Lamb noted that UPL’s purpose is to protect the public, and the largest area of abuse is in immigration law. That accounts for about a quarter of all complaints made to the bar, and nearly half of the cases approved for litigation.
In addition, Lamb said such UPL cases frequently involve large sums of money, the Supreme Court has no control over the federal forms, and immigration is a complex and frequently changing area of law.
“It is the opinion of the standing committee that if oral communication is allowed in this area, it will only lead to more improper legal advice, more unlicensed practice of law, and more harm to the victims,” he wrote.
The consequences can be devastating, with individuals being deported, families split up, loss of freedom, property, and businesses, and a ban in reentering the country for several years, Lamb said.
“The standing committee believes that the need to prevent the harm outweighs any access issues that may arise if oral communication is not allowed,” he wrote.
Lamb noted the prohibition does not extend to translating an immigration form, “as long as questions are not asked or answered.”
On the proofreading issue, the court asked the Bar to look at what computerized spell-checking, proofreading, and grammar corrections a nonlawyer should be allowed to offer when providing assistance on filling out court-approved forms.
“The study should consider the different contexts in which such software services are provided, and offer guidance as to when such computerized services change from routine secretarial practice to the unlicensed practice of law,” the court said.
In response, the UPL Committee adopted the following policy:
“The Florida Bar will not prosecute a nonlawyer for the unlicensed practice of law for the use of computer software spell-checking, grammar-checking, or proofreading utilities to correct spelling or grammatical errors where the spelling or grammatical error is so obvious that the correction does not require discussions with the customer. This policy does not prohibit The Florida Bar from investigating the activities of a nonlawyer to determine what services are being provided.”
The Standing Committee on UPL is now considering requests received from the court earlier this year on collecting monetary penalties imposed in UPL cases.
“The court is interested in action as to what can be more easily implemented when respondents in unlicensed practice of law cases fail to obey an order of this court that directed them to pay monetary penalties,” said Hall in a letter to the Bar. The court is also interested in “potential actions and results if a respondent repeatedly fails to pay the monetary penalties, other than orders from this court or the appointment of further referees.”
The court also asked the Bar to look at a potential rule amendment “that would prioritize the order in which a respondent should pay the competing financial obligations of restitution, costs, and monetary penalties, along with the time parameters for each.”
Those issues remain under consideration by the committee.