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Unlicensed Practice – Formal Advisory Opinions

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UPL – Formal Advisory Opinions

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Overview
Formal advisory opinion request regarding out-of-state attorney’s remote practice from Florida home
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 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.


Formal advisory opinion request regarding out-of-state attorney’s remote practice from Florida home

The UPL Standing Committee is currently considering a request for formal advisory opinion on whether it constitutes the unlicensed practice of law for a Florida domiciliary employed by a New Jersey law firm (having no place of business or office in Florida), to work remotely from his Florida home solely on matters that concern federal intellectual property rights (and not Florida law) and without having or creating a public presence or profile in Florida as an attorney.

In order to receive input on this question, the Committee will hold a public hearing on February 7, 2020, at the Hyatt Regency Orlando Hotel, 9801 International Drive, Orlando, FL 32819, at 9:00 a.m., to receive testimony from interested individuals.  Written testimony may also be sent to: The Florida Bar – UPL Dept., 651 E. Jefferson St., Tallahassee, FL 32399-2300, or via email before the hearing.  The hearing is the first step in the UPL formal advisory opinion process.  After the hearing, the committee will decide whether to issue a proposed opinion.  The committee has not debated or reached a decision on the question.  The committee does not have to issue a proposed opinion after the hearing.  Any proposed opinion by the committee is advisory only.


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., Case No. SC17-1510, 2018 WL 4784066 (Fla. 2018)