UPL – Formal Advisory Opinions
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 and should be sent to The UPL Department at the Bar’s headquarters address in Tallahassee. The request for an advisory opinion must state all operative facts and ask weather the activity constitutes the unlicensed practice of law. Rule 10-9.1(a)(2) defines petitioner as an individual or organization seeking guidance as to the applicability of the prohibitions against the unlicensed practice of law.
No opinion may be rendered with respect to any case or controversy pending in any court or tribunal in Florida, except in limited circumstances, 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 and any interested party may file a brief or memorandum in response to the proposed formal advisory opinion. The Standing Committee is given an opportunity to reply. Oral argument may be allowed at the Court’s discretion. The Court will approve, modify, or disapprove the proposed advisory opinion and the Court’s opinion will have the force and effect of an order of the Court.
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 filed the proposed opinion with the Supreme Court of Florida on August 15, 2017. The briefing period has ended and the proposed opinion is pending final Court action.