The Florida Bar
Unlicensed Practice of Law
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II. Bar Position
IV. Facts and Statistics
A nonlawyer solicits legal business and has business cards printed with the title "attorney" under his name. A disbarred attorney works in the law office of a practicing attorney. The owner of a secretarial service distributes legal forms and advises clients on their rights regarding divorces, adoptions and name changes. A large New York law firm opens a Florida office and sends down one of its partners to oversee the attorneys working there. Nonlawyer "notarios" take fees to process immigration forms for aliens seeking citizenship.
Are any of these the unlicensed practice of law (UPL)? It depends. Between blatant consumer fraud and legitimate help for those with limited access to the legal system is a vast gray area constantly in the process of being defined by case law, rules changes and dynamics in the law.
The main purpose of UPL investigations and prosecutions is protection of the public from fraud and bad advice affecting legal rights. This is also the focus of the Florida Supreme Court in defining UPL.
II. Bar Position
The Florida Bar has been given the authority by the Supreme Court of Florida to investigate and prosecute the unlicensed practice of law. The Bar may seek civil injunctive relief and indirect criminal contempt. Litigation may include a monetary penalty and restitution. The Bar may also issue proposed formal advisory opinions regarding the unlicensed practice of law.
In 2006, the Supreme Court adopted rules regarding the multijurisdictional practice of law.
The Supreme Court of Florida has inherent jurisdiction to prohibit the unauthorized practice of law (see Article V, Section 15 of the Florida Constitution). The Florida Bar, as an official arm of the Court, is charged with investigating and prosecuting matters pertaining to the unlicensed practice of law. (See Chapter 10, Rules Regulating The Florida Bar).
UPL is a product of Florida Supreme Court case law. A broad, general definition and a threepart test were outlined in the State of Florida v. Sperry, 140 So. 2d 587 (Fla. 1962).
"We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and 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."
That definition has been fleshed out in casebycase decisions over the years.
The basis for judicial/Bar involvement are set forth in Sperry:
"The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the Code of Conduct which, in the public interest, lawyers are bound to observe."
The court went on to hold that:
"It would indeed be an anomaly if the power of the courts to protect the public from the improper or unlawful practice of law were limited to licensed attorneys and did not extend or apply to incompetent and unqualified laymen and lay agencies. Such a limitation of the power of the courts would reduce the legal profession to an unskilled vocation, destroy the usefulness of licensed attorneys as officers of the courts, and substantially impair and disrupt the orderly and effective administration of justice by the judicial department of the government; and this the law will not recognize or permit. Protection of the public is the reason for UPL. There is no other justification or reason for the program."
A. Judicial History
State of Florida ex rel. The Florida Bar v. Sperry: This 1962 UPL case laid the foundation for the definition of UPL in Florida. The case serves as the benchmark for evaluating if conduct amounts to the practice of law. The Sperry case is also notable because it was appealed to the U.S. Supreme Court and the subsequent decision sets forth provisions governing appearances and practices before federal courts and agencies. UPL provisions for such groups depend on the licensing regulations of the forum (such as the Patent Office) in question.
The Florida Bar v. Brumbaugh: This 1978 case defined how the sellers of forms and "doityourself" legal kits could operate. This case liberalized the former laws by allowing nonlawyers to sell printed material purporting to explain legal practice and procedure to the public in general and to operate secretarial services and type forms for customers, if typists only copy the information given to them in writing by customers. The writing requirement was somewhat modified by rule 10-2.1(c) of the rules regulating The Florida Bar.
The Florida Bar v. Richard S. Savitt et al: This 1978 case set forth the guidelines in the area of UPL for interstate law firms operating in Florida.
The Florida Bar v. Moses: This 1980 Florida Supreme Court decision acknowledged a new exception to the Sperry decision. Moses appeared before a hearing officer of the state Division of Administrative Hearings, relying on a Florida statute that provided a person is entitled to representation by "counsel or by other qualified representatives." So, nonlawyers may represent individuals in Florida administrative proceedings if they comply with Moses and the applicable Florida administrative rules.
The Florida Bar v. Matus (528 So.2d 895): This 1988 case reaffirmed earlier cases by holding that the preparation of immigration forms by a nonlawyer constitutes UPL.
Nonlawyer Preparation of Living Trusts (613 So.2d 426): In a 1992 advisory opinion matter, the Supreme Court held that it is the unlicensed practice of law for a nonlawyer to assemble, draft, execute and fund a living trust for a third party. The court also found a conflict of interest should an attorney working for the company prepare the documents.
The Florida Bar v. Gentz (640 So. 2d 1105): This 1994 case enjoined several individuals from operating a court. The nonlawyers had set up a court and were granting divorces and name changes. The court found the activity to be the unlicensed practice of law and issued an injunction. Two of the nonlawyers subsequently violated the injunction and were held in contempt of court. The two were sentenced to 160 days in jail.
Nonlawyer Representation in Securities Arbitration (696 So. 2d 1178): In a 1997 advisory opinion matter, the Supreme Court held that it is the unlicensed practice of law for a nonlawyer to represent another in a securities arbitration matter.
The Florida Bar v. Davide (702 So. 2d 184): In this 1997 case, the court enjoined a legal technician from, among other things, using and advertising under the name Florida Law Center, Inc., as the name is misleading and gives the impression the business has expertise in the field of law.
The Florida Bar v. Neiman(816 So.2d 587): In this 2002 case, the court enjoined a nonlawyer who was running a law office. The nonlawyer directed the attorney in what cases to take and how to handle the cases. The nonlawyer also gave legal advice and represented firm clients in mediations and settlement negotiations.
B. Florida Bar Involvement
The UPL Department has attorneys in all branch offices: Tallahassee, Orlando, Tampa, Miami and Fort Lauderdale. With the exception of Tallahassee, the offices are staffed by one Branch UPL Counsel and one administrative secretary. The Tallahassee office is staffed by UPL Counsel, Assistant UPL Counsel, a parttime Branch UPL Counsel and one administrative assistant. All UPL attorneys are responsible for attending committee meetings, assisting in investigations and handling litigation. In addition, UPL Counsel is responsible for the administration of the department and the Bar's UPL program. The Assistant UPL Counsel is also responsible for the formal and informal advisory opinion process.
A statewide Standing Committee on the Unlicensed Practice of Law is appointed by the Supreme Court on the advice of the Bar's Board of Governors. The group is required to have 37 members, 18 of whom shall be nonlawyers, appointed to threeyear terms. The standing committee receives and evaluates circuit committee recommendations for prosecution in the Supreme Court of Florida. Cases are then reviewed by designated reviewers.
Each of Florida's 20 judicial circuits has at least one UPL committee. Each committee must have at least three members, with at least one-third of those members being nonlawyers. The circuit committees investigate all reports of unlicensed practice.
IV. Facts and Statistics
- In fiscal year 2011-2012 (July 1 - June 30), there were over 00 UPL cases opened.
- Of those states responding to a survey of their UPL processes (reported in December 2012), twenty-three jurisdictions actively enforce UPL regulations. “Practice of law” definitions are established by court rule in sixteen jurisdictions, by statute in fourteen, through case law in twenty-three, and through advisory opinions in three jurisdictions.
- Enforcement authority against UPL is established by court rule in twenty-three jurisdictions, by statute in twenty-nine. Most responding jurisdictions report enforcement authority by both statute and court rule. In most jurisdictions there are two or more authorities authorized to enforce UPL regulations, including states attorneys general, state bar committees/counsel, state supreme court committees/commissions, and local and county attorneys.