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Formal Advisory Opinions

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Overview
UPL public hearing for Goldberg formal advisory opinion request
Formal Advisory Opinion Request Regarding Certain Medicaid Planning Activities
Formal Advisory Opinion Request Regarding Community Association Managers
2011 Request
Previously issued formal advisory opinions



Overview
Rule 10-9.1 of the Rules Regulating The Florida Bar allows the Standing Committee on Unlicensed Practice of Law to issue proposed formal advisory opinions concerning activities which may constitute the unlicensed practice of law. Requests for advisory opinions must be in writing addressed to The UPL Department, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300. The request for an advisory opinion must state in detail all operative facts upon which the request for opinion is based and contain the name and address of the petitioner. Rule 10-9.1(a)(2) defines petitioner as an individual or organization seeking guidance as to the applicability, in a hypothetical situation, of the prohibitions against the unlicensed practice of law.

No opinion may be entered with respect to any case or controversy pending in any court in Florida and no informal opinions shall be issued. Rule 10-9.1(c). The proposed advisory opinion is only an interpretation of the law and does not constitute final court action. If the Standing Committee agrees to accept the request for a formal advisory opinion, notice will be published and a public hearing will be held. At the hearing, the committee will take testimony from all interested individuals. Written testimony may also be submitted prior to the hearing. The holding of a hearing does not guarantee the issuance of a proposed formal advisory opinion.

After the hearing, the Standing Committee will vote on whether to issue a proposed formal advisory opinion and on the substance of the opinion. If the Standing Committee finds that the conduct constitutes the unlicensed practice of law, the proposed formal advisory opinion is filed with the Supreme Court of Florida. If the Standing Committee finds that the conduct does not constitute the unlicensed practice of law, the Standing Committee may publish the opinion in the Florida Bar News or the committee may file the proposed opinion with the Supreme Court of Florida.

The petitioner may file comments in support of or in opposition to the proposed formal advisory opinion. Interested parties with leave of the court may also file comments. The Standing Committee is given an opportunity to reply. Any party may request oral argument before the Court.


UPL public hearing for Goldberg formal advisory opinion request

Pursuant to Rule 10-9.1, the Standing Committee on Unlicensed Practice of Law will hold a public hearing on May 2, 2014, at the Hilton Tampa Airport Westshore, 2225 N. Lois Ave., Tampa, FL 33607, at 10:00 a.m., at which time testimony will be taken regarding a Rule 10-9.1(c)
Goldbergrequest for a formal advisory opinion for the case of Scharrer v. Fundamental Administrative Services and Christine Zack(Middle District of Florida Case No. 8:12-cv-1855-JSM-MAP). Request for formal advisory opinion. Questions presented. Written testimony may be filed at the hearing or prior by sending a copy to Jeffrey T. Picker, Assistant UPL Counsel, The Florida Bar, 651 E. Jefferson St., Tallahassee, FL 32399-2300 or jpicker@flabar.org.

Formal Advisory Opinion Request Regarding Certain Medicaid Planning Activities

    Notice of Filing Proposed Advisory Opinion
    The Standing Committee on UPL, pursuant to R. Regulating Fla. Bar 10-9.1(f)(3), provides this notice of filing a proposed advisory opinion on Medicaid planning activities by nonlawyers. The proposed opinion finds that it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare and execute a Qualified Income Trust including gathering the information necessary to complete the trust. The opinion also finds that it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid benefits. The preparation of the application for Medicaid benefits was not considered as federal law authorizes nonlawyer assistance in the application process. Copy of the full Medicaid planning by nonlawyers opinion. PDF document opens in new window

    The bar will file the proposed opinion with the Supreme Court of Florida on or about January 15, 2014. Pursuant to R. Regulating Fla. Bar 10-9.1(g)(3), “within 30 days of the filing of the opinion, the petitioner may file objections and a brief or memorandum in support therof, copies of which shall be served on the committee. Any other interested person may, within 30 days of the filing of the opinion, seek leave of the court to file and serve a brief, whether in support of or in opposition to the opinion, in accordance with this same procedure. The committee may file a responsive brief within 20 days of service of the initial brief. The petitioner, as well as other interested persons having leave of court, may file a reply brief within 10 days of service of the responsive brief. At its discretion, the court shall permit reasonable extension of these time periods. Oral argument will be allowed at the court’s discretion. The Florida Rules of Appellate Procedure shall otherwise govern the above methods of filing, service, and argument.”

    The Standing Committee on Unlicensed Practice of Law is currently considering a request for formal advisory opinion on whether it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: 1) preparation of personal service contracts; 2) preparation and execution of qualified income trusts; or 3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits. Review the FAO request regarding certain Medicaid Planning activities. PDF document opens in new window The preparation of the application for Medicaid benefits is not being considered.

    Additional information provided by petitioner. PDF document opens in new window

    The public hearing was held on February 22, 2013. Transcript of public hearing PDF document opens in new window Written testimony PDF document opens in new window



Formal Advisory Opinion Request Regarding Community Association Managers
    Notice of Filing Proposed Advisory Opinion
    The Standing Committee on UPL, pursuant to R. Regulating Fla. Bar 10-9.1(f)(3), provides this notice of filing a proposed advisory opinion on the activity of community association managers. 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), which answers many of the questions posed by the petitioner. Clarification by example is provided for two activities and two activities not raised in 1996 are addressed using the 1996 opinion and other case law as guidance. Copy of the full opinion 2012-2.

    The bar will file the proposed opinion with the Supreme Court of Florida on or about May 15, 2013. Pursuant to R. Regulating Fla. Bar 10-9.1(g)(3), “within 30 days of the filing of the opinion, the petitioner may file objections and a brief or memorandum in support therof, copies of which shall be served on the committee. Any other interested person may, within 30 days of the filing of the opinion, seek leave of the court to file and serve a brief, whether in support of or in opposition to the opinion, in accordance with this same procedure. The committee may file a responsive brief within 20 days of service of the initial brief. The petitioner, as well as other interested persons having leave of court, may file a reply brief within 10 days of service of the responsive brief. At its discretion, the court shall permit reasonable extension of these time periods. Oral argument will be allowed at the court’s discretion. The Florida Rules of Appellate Procedure shall otherwise govern the above methods of filing, service, and argument.”

    The Standing Committee on Unlicensed Practice of Law received a request for formal advisory opinion on whether certain activities when performed by community association managers constitute the unlicensed practice of law. PDF document opens in new window The petitioner sought confirmation that the activities found to be the unlicensed practice of law in the 1996 opinion (The Florida Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996)) 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.

    The petitioner also asked if it was the unlicensed practice of law for a community association manager to engage in any of the following activities: 1. Preparation of a Certificate of assessments due once the delinquent account is turned over to the association’s lawyer, 2. Preparation of a Certificate of assessments due once a foreclosure against the unit has commenced, 3. Preparation of Certificate of assessments due once a member disputes in writing to the association the amount alleged as owed, 4. Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members, 5. Determination of number of days to be provided for statutory notice, 6. Modification of limited proxy forms promulgated by the State, 7. Preparation of documents concerning the right of the association to approve new prospective owners, 8. Determination of affirmative votes needed to pass a proposition or amendment to recorded documents, 9. Determination of owners’ votes needed to establish a quorum, 10. Drafting of pre-arbitration demand letters required by 718.1255, Fla. Stat., 11. Preparation of construction lien documents (e.g. notice of commencement, and lien waivers, etc.), 12. Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc., 13. Identifying, through review of title instruments, the owners to receive pre-lien letters, and 14. Any activity that requires statutory or case law analysis to reach a legal conclusion.

    A public hearing was held on the request on June 22, 2012.

    Review written testimony: Part 1 PDF document opens in new window , Part 2 , PDF document opens in new window Part 3 PDF document opens in new window , Part 4 PDF document opens in new window Part 5 PDF document opens in new window , Part 6. PDF document opens in new window. Review transcript of public hearing. PDF document opens in new window The committee is no longer accepting written testimony.


2011 Request
    In 2011, the Standing Committee considered a request for formal advisory opinion on whether a nonlawyer who assists a property owner in a short sale transaction is engaged in the unlicensed practice of law and whether the answer would be different if the nonlawyer was a real estate licensee regulated under chapter 475, Fla. Stat., a title insurance agency/agent regulated under chapter 626, Fla. Stat., or a mortgage broker or other individual regulated under chapter 494, Fla. Stat. The transcript of the hearing and the written testimony can be accessed at the following: transcript of the public hearing PDF document opens in new window and the written testimony. PDF document opens in new window
      The committee voted to decline to issue a formal advisory opinion. The committee felt that the question was too broad and the public hearing did not elicit testimony that was helpful. The matter can be reconsidered if someone submits a more specific question. In the meantime, the committee voted to continue the existing policy and review matters on a case-by-case basis. The committee offers the following guidance. PDF document opens in new window

    Previously issued formal advisory opinions

    [Revised: 03-25-2014]