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Unlicensed Practice – Formal Advisory Opinions

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UPL – Formal Advisory Opinions

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Overview
Goldberg Formal Advisory Opinion request for the case of Shore v. Wall, et. al. (Manatee County Circuit Court Case No. 2014 CA 3155)
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.


Goldberg Formal Advisory Opinion request for the case of Shore v. Wall, et. al. (Manatee County Circuit Court Case No. 2014 CA 3155)

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 relating to a Rule 10-9.1(c) Goldberg request for a formal advisory opinion for the case of Shore v. Wall, et. al. (Manatee County Circuit Court Case No. 2014 CA 3155). The proposed opinion finds that a nonlawyer company engages in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.; identifies and contacts owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court; offers the owners of excess proceeds a contingency arrangement using a purported assignment modified by an agreement to share the excess proceeds upon recovery, with the owner retaining a 60% interest in the excess proceeds; requests from the Clerk of Court the surplus funds based on the purported assignment; and files pleadings in interpleader actions to recover the surplus funds. Copy of the full opinion.

The bar will file the proposed opinion with the Supreme Court of Florida on or about August 15, 2017. 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 thereof, 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.”


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 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