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UPL now buys a felony charge

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UPL now buys a felony charge

Same holds for suspended attorneys who still practice

Gary Blankenship
Senior Editor

The prohibition against nonlawyers and disbarred or suspended attorneys performing unauthorized legal work just got a lot more serious than facing sanctions from The Florida Bar or a Supreme Court injunction.

On October 1, a state law went into effect raising the penalties for the unlicensed practice of law from a first degree misdemeanor to a third degree felony. That means violations are punishable by up to five years in state prison and a $5,000 fine, instead of one year in county jail and a $1,000 fine.

The bill began after members of the House Judiciary Committee expressed concern almost two years ago about nonlawyers taking advantage of their constituents by charging them exorbitant fees and then doing little if any work.

As passed, the legislature addressed all three sections of a state law on UPL. That included nonlawyers who deliver unauthorized legal services, anyone — lawyer or nonlawyer — who knowingly assists a suspended or disbarred lawyer performing legal services, and disbarred or suspended lawyers who continue to practice. It raised the penalties for all three sections from the misdemeanor to felony level.

The new law will not mean any changes in the Bar’s UPL or disciplinary operations. The UPL Department will continue to seek cease and desist agreements and Supreme Court injunctions against unlicensed practitioners, and indirect criminal contempt citations for those who violate the injunctions. Lori Holcomb, Bar UPL counsel, said the office also will continue its practice of referring the more egregious cases to state attorneys for prosecution.

In a typical year, the Bar investigates around 700 UPL cases, Holcomb said. Some are settled with cease and desist orders, others are dropped, and some wind up before the Supreme Court for injunctions. Many aside from the Bar’s actions are referred to state attorneys, although the Bar has not kept statistics on the number, she said.

The referral results have been mixed. Some cases have not be prosecuted, but others have. Holcomb said cases that involve other infractions, such as fraud, theft, or forgery, are more likely to be prosecuted.

Ken Marvin, director of lawyer regulation for the Bar, said it is always the Bar’s policy that whenever it runs across an illegal activity, whether it be a suspended or disbarred attorney continuing to practice or theft from a trust account, it is automatically reported to the appropriate state attorney’s office.

Second Circuit State Attorney Willie Meggs, president of the Florida Prosecuting Attorneys Association, said he thinks prosecutors will pay attention to the now-felony referrals, adding it shouldn’t add that much to their workload.

“We will do them. It will be an issue of what the sanctions are [under the state’s sentencing guidelines],” he said. “I would suspect that what will happen is when it is put under the [sentencing] guidelines it is any nonstate prison sanction. I would expect we would have pleas.”

The legislation came about after a meeting in the fall of 1982 between the House Judiciary Committee and immediate past Bar President Miles McGrane, who was then president-elect. Representatives said they had heard complaints from constituents that nonlawyers were charging hefty fees for legal matters, frequently in immigration matters, and they were doing little or no work. McGrane promised the Bar’s support, and a bill was introduced for the 2003 session to increase the penalties.

Although favorably received in both chambers, the bill did not pass in what proved to be an acrimonious session.

It was introduced again in 2004 and passed easily in both the House and Senate, and was signed by Gov. Jeb Bush in June.

“This is legislation that has been two years in the making, and I think gives us another tool in our armament to fight UPL,” McGrane said when Gov. Jeb Bush signed the bill. “The Bar has been successful in the past in getting injunctions against some of these individuals, but now maybe we can get state attorneys to file criminal charges against the most egregious UPL violators.

“As an individual who has always supported and worked to get legal services for the poor, it’s also important to remember that those legal services must be competent legal services.”

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