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Unlicensed Practice – Formal Advisory Opinions

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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 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 whether 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.

Goldberg formal advisory opinion request for the case of Wildstein v. Core Contents Restoration, LLC and Whitmer (Palm Beach County Circuit Court Case No. 502020CA006656XXXXMB)

Notice of Public Hearing

Pursuant to Rule 10-9.1, the Standing Committee on Unlicensed Practice of Law will hold a public hearing on June 24, 2022, at Signia by Hilton Orlando Bonnet Creek, 14100 Bonnet Creek Resort Lane, Orlando, FL 32821, at 9:00 a.m., at which time testimony will be taken regarding a Rule 10-9.1(c) Goldberg request for a formal advisory opinion for the above-referenced case. The question presented is whether a lawyer who held out as and acted as a Florida company’s general counsel/in-house counsel without being a member of The Florida Bar or certified as an authorized house counsel under Chapter 17 of the Rules Regulating The Florida Bar engaged in the unlicensed practice of law. You can download a copy of the question presented or request it by writing The Florida Bar – UPL Dept., 651 E. Jefferson St., Tallahassee, FL 32399-2300, or via email.

Written testimony may be filed at the hearing or prior by sending a copy to Jeffrey Picker, UPL Counsel, The Florida Bar, 651 E. Jefferson St., Tallahassee, FL 32399-2300, or via email.

Supreme Court Opinions on Proposed Formal Advisory Opinions

Action on proposed formal advisory opinions previously issued by the Standing Committee on the Unlicensed Practice of Law:

  • The Fla. Bar re: Advisory Opinion – HRS Nonlawyer Counselors, 518 So. 2d 1270 (Fla. 1988)
  • The Fla. Bar re: Advisory Opinion – HRS Nonlawyer Counselor, 547 So. 2d 909 (Fla. 1989)
  • The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Notice To Owner and Notice To Contractor, 544 So. 2d 1013 (Fla. 1989)
  • The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. 1990)
  • The Fla. Bar re: Nonlawyer Preparation of Leases, 602 So. 2d 914 (Fla. 1992)
  • The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485 (Fla. 1993)
  • The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992)
  • The Fla. Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996)
  • The Fla. Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997)
  • The Fla. Bar re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers, 183 So. 3d 276 (Fla. 2015)
  • The Fla. Bar re: Advisory Opinion – Activities of Community Association Managers, 177 So. 3d 941 (Fla. 2015), reh’g denied, 175 So. 3d 263 (Fla. 2015)
  • The Fla. Bar re: Advisory Opinion – Scharrer v. Fundamental Administrative Services, 176 So. 3d 1273 (Fla. 2015)
  • The Fla. Bar re: Advisory Opinion – Shore v. Wall, et al., 265 So.3d 447 (Fla. 2018)
  • The Fla. Bar re: Advisory Opinion – Out-of-State Attorney Working Remotely From Florida Home, SC20-1220 (Fla. 2021)