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December 1, 2013
Community association managers take UPL issue to the Legislature

By Mark D. Killian
Managing Editor

A trade group representing community association managers, or CAMS, told the Legislature the process the Bar uses to issue unlicensed practice of law advisory opinions is flawed and that the Bar’s Standing Committee on UPL is trying to carve out “a captive marketplace” for lawyers at the expense of another profession.

The CAMS were reacting to a UPL Committee advisory opinion issued in May that examined the activities of community association managers to determine if some of the services should only be provided by lawyers. The opinion is now pending at the Supreme Court.

Mark Anderson, representing the Chief Executive Officers of Management Companies — which represents 18,000 CAMS — told the House Civil Justice Subcommittee in November that the Bar’s UPL process has become less about the practice of law and more about the creation of it.

“We believe there is something fundamentally wrong when, in the absence of any complaints or facts to the contrary, some lawyers who do not like another profession can simply exploit an unelected process intended to guide the public and the legal profession for something it was not intended — to forcibly create a captive marketplace for itself at the expense of another profession,” Anderson said.

Anderson said CAMS were provided only limited opportunity to comment while the advisory opinion was being drafted and that certain UPL issues should not be defined through the court at the request of the same profession that stands to benefit from how it is defined.

“Bad process makes bad public policy, and let’s make no mistake about it, as we sit here today the Bar is creating public policy, because the impact of a so-called advisory opinion regarding UPL is far more substantive and sweeping than the word ‘advisory’ would imply and extends well beyond the legal profession,” Anderson said.

Lori Holcomb, the Bar’s director of client protection who oversees the Bar’s UPL efforts, told the committee the CAMS had plenty of opportunity to be heard at a well-publicized public hearing on the matter and kept the process open after the hearing for others to submit written comments. Holcomb said the committee received some 250 to 350 pages of testimony — all made available on the Bar’s website — before rendering its decision. Holcomb did note no new testimony was taken when the committee met in public to finalize its advisory opinion. She also said many briefs have been filed with the Supreme Court on the pending matter, many from CAMS.

Rep. Ross Spano, R-Riverview, who brought the matter to the attention of the House committee, said: “The policy embraced by this petition will put more than 18,000 Floridians [CAMS] at risk of being put out of work at a critical time of recovery for Florida’s economy by prohibiting them from continuing to provide their contracted services to associations.”

Holcomb, however, said the proposed opinion will not change any of the rulings made by the Supreme Court of Florida in The Florida Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996), the last time the court addressed the role of CAMS.

“What the CAMS have been operating under since 1996, we are not proposing that that changes,” said Holcomb, adding that the UPL Committee worked to clarify the earlier opinion and also addressed some new law, including a recommendation that CAMS be permitted to write pre-arbitration letters.

The Real Property, Probate and Trust Law Section sought confirmation from the UPL Committee that the activities found to be UPL in the 1996 opinion continue to be the unlicensed practice of law. Those activities include the drafting of a claim of lien and satisfaction of claim of lien; preparing a notice of commencement; determining the timing, method, and form of giving notices of meetings; determining the votes necessary for certain actions by community associations; addressing questions asking for the application of a statute or rule; and advising community associations whether a course of action is authorized by statute or rule.

Since there is no statutorily defined definition of UPL, Rep. Kathleen Passidomo, R-Naples, asked what criteria the Bar uses to determine what constitutes UPL.

Holcomb said it is defined by case law and court rule, and the 37-member UPL Committee — of which 18 members are nonlawyers — has more than 250 cases to draw from.

“The reason there is no definition . . . is because the court recognized in 1980 that due to the ever-changing business and social atmosphere, you could not have a one set definition of UPL,” Holcomb said.

In determining UPL, Holcomb said, the committee uses a three-prong test set forth by the Supreme Court of Florida:

* Does the conduct involve an individual’s important legal rights?

* Does the person providing that activity require knowledge and skill of the law greater than that possessed by the average citizen?

* It is done by one for another?

Rep. James Waldman, D-Coconut Creek, asked why Realtors are permitted to draft contracts while others cannot.

Because the statute allows someone with a real estate license to bring together the buyer and seller, Holcomb answered, the court held they could draft the contact for sale.

“Can they draft another contract? No,” Holcomb said.

Rep. Bill Hagar, R-Boca Raton, said there is an “inference in the air” that the Bar is focusing on CAMS “because they are an easy target versus, say, CPAs,” who, he said, “often articulate more or equivalent tax law than a tax attorney.”

Hagar said with 95,000 lawyers, some of whom are underemployed, the Bar’s UPL work associated with CAMS “seems anti-competitive.”

Holcomb said the UPL Committee does not take “easy targets” into consideration when preparing advisory opinions and noted it is often more lucrative for lawyers “to clean up a mess” than it is to have something prepared correctly the first time.

“We look at where the law should be clarified or where there is public harm that needs to be protected,” she said.

As far as CPAs doing tax work, Holcomb said the UPL Committee has no authority since the federal government allows that activity.

“If there is a federal rule or regulation that says the activity is authorized then Florida cannot step in . . . and enjoin that activity as UPL,” she said.

Chair Larry Metz, R-Groveland, said he is concerned that there is no clear definition of what the unlicensed practice of law is and the Legislature should make it clear what CAMs can do.

“That might help move this dialog forward if we assert substantive policy — in the role that we have to license and control community association managers — that might help alleviate, maybe, some of these issues,” Metz said.

Rep. Dana Young, R-Tampa, asked: “Why is this something that the Bar, which most of us pay our dues to and allegedly represent us, why are they taking time and spending money to deal with this [CAMs] issue? There is no question in my mind that this rule, if that’s what we are calling it, that the Bar is trying to get passed is going to significantly increase costs to homeowners in our state at a time when they cannot afford it.”

“I feel like it is the fox guarding the hen house,” Young said. “I feel like it is lawyers trying to drum up business. Why do I need a lawyer to tell me what a quorum is? Why do I need to hire a lawyer to fill out a form? This is just silly and it is embarrassing, and I would ask the Bar to please focus on things that matter and stop trying to drum up business at the cost to our homeowners.”

Anderson said what is happening to CAMS today “can and will happen to other professions tomorrow.”

“If lawyers want to provide the same service another profession is providing to the public, they can and should do what everyone else has to do — compete for it by doing it better and more cost effectively than anyone else,” Anderson said.

[Revised: 04-07-2014]