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• Formal Advisory Opinions

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Overview
Formal Advisory Opinion Request Regarding Certain Medicaid Planning Activities
Formal Advisory Opinion Request Regarding Community Association Managers
2011 Request
Previously issued formal advisory opinions

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. The preparation of the application for Medicaid benefits is not being considered.

Additional information provided by petitioner.

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. 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 , Part 2 , Part 3 , Part 4 Part 5 , Part 6. . Review transcript of public hearing. The committee is no longer accepting written testimony.

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 and the written testimony.

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.

Previously issued formal advisory opinions

Listing of previously issued formal advisory opinions