Like most jurisdictions, the unlicensed practice of law (“UPL”) is prohibited in Florida.[1] Therefore, distinguishing lawful services from those which are unlawful is crucial. The unauthorized practice of law is the practice of law by a person who is not a lawyer licensed to do so.[2] Specifically, it is the performance of acts or duties that are restricted to the members of the legal profession.[3]
Every state has its own interpretation of what constitutes UPL.[4] In Florida, a person who is not licensed or otherwise authorized to practice law in the state, and practices law in the state commits a felony of the third degree.[5] The Supreme Court of Florida has inherent jurisdiction to prohibit the unlicensed practice of law.[6] On the other hand, the Florida Bar Association is the entity in charge of considering, investigating, and seeking the prohibition of matters pertaining to the unlicensed practice of law and the prosecution of alleged offenders.[7] However, while traditional legal services like representing a client in court are easily defined as UPL, determining whether a service constitutes the unauthorized practice of law can be tricky and difficult. In fact, even the Supreme Court of Florida has expressed that defining what constitutes the practice of law can be difficult.[8]
There is a general societal understanding that the performance of services in representing another before the court is the practice of law.[9] The supreme court explained that the practice of law also includes giving legal advice and counsel to people as to their rights and obligations under the law and preparation of legal documents, although such matters may not then or ever be the subject of proceedings in court.[10] However, the court has provided some guidance in distinguishing benign advice or services from the unauthorized practice of law.
The Supreme Court of Florida has stated that:
if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.[11]
In other words, for a person’s conduct to constitute the practice of law two things need to be present. First, the person is giving advice or performing services that affect important rights of a person under the law. Second, to protect those rights, the type of advice given is that which requires legal skill and knowledge greater than what an average citizen would have.
To provide context, an effective strategy is to review examples of which types of conduct the supreme court has found to constitute the “unauthorized practice of law” and which types of conduct it has not. The Florida Supreme Court has expressed that the drafting of living trusts and related documents by a corporation or other nonlawyer constitutes the unlicensed practice of law.[12] The supreme court stated that the assembly, drafting, execution, and funding of a living trust document constitutes the practice of law.[13] The court also stated that a lawyer must make the determination as to the client’s need for a living trust and identify the type of living trust most appropriate for the client.[14] The supreme court explained that because a living trust document involves the disposition of property at death, it requires legal expertise and must be performed by a lawyer.[15] However, the simple gathering of the necessary information for the living trust does not constitute the practice of law, and therefore, nonlawyers may perform this activity.[16]
On the other hand, the Supreme Court of Florida has stated that it is not the unlicensed practice of law for nonlawyers to engage in communications with clients for the purposes of completing the “Notice to Owner” forms and preliminary notice forms.[17] The supreme court explained that the forms required only a minimum amount of information that could be easily obtained from the customer or the public records.[18] The court also stated that there had been no showing that the public was being harmed by the preparation of these forms by nonlawyers.[19] However, the supreme court noted that nonlawyers may not give legal advice concerning the preparation and service of the notices.[20]
In addition, there are instances in which a person who is not licensed in Florida may practice in law within the state.[21] For example, attorneys licensed in another state may represent someone in a court proceeding in Florida with the court’s permission and in arbitration proceedings in the state.[22] The Florida Bar’s Foreign Legal Consultancy Rule allows a foreign attorney to advise clients on the laws of the country under which the attorney is admitted to practice.[23]
Avoiding the unauthorized practice of law boils down to avoiding two pitfalls: (1) avoid providing consulting or other advice which may affect the ultimate rights of another person or entity; and (2) don’t give advice which requires advanced legal knowledge or skill.
References:
[1] Fla. Stat. § 454.23 (2012); [2] Unauthorized Practice of Law, The Wolters Kluwer Bouvier Law Dictionary (2012). [3] Id. [4] See, e.g., Unauthorized Practice of Law, The State Bar of Cal., https://www.calbar.ca.gov/Public/Free-Legal-Information/Unauthorized-Practice-of-Law (last visited June 3, 2020). [5] Fla. Stat. § 454.23 (2012). [6] Unlicensed Practiced of Law, Fla. Dep’t of State: Div. of Library & Info. Services, https://dos.myflorida.com/library-archives/services-for-libraries/community/legal-risks-for-libraries/unlicensed-practice-of-law/ (last visited June 3, 2020). [7] Id. [8] The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191 (Fla. 1978). [9] State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962). [10] Id. [11] Id. [12] See Fla. Bar Re Advisory Op.-Nonlawyer Preparation of Living Trs., 613 So. 2d 426 (Fla. 1992). [13] Id. at 428. [14] Id. at 427-28. [15] Id. at 428. [16] Id. [17] See Fla. Bar re Advisory Opinion-Nonlawyer Preparation etc., 544 So. 2d 1013, 1016 (Fla. 1989); Fla. Stat. § 713.06(1) (2020) (A “Notice to Owner” is a written notice from a laborer (who is not dealing with the owner directly) that advises the owner of improved real property that the laborer has a right to place a lien on the property for any money that is owed to him (the laborer) for labor, services or materials furnished and that remains unpaid). [18] Fla. Bar re Advisory Opinion-Nonlawyer Preparation etc., 544 So. 2d 1013, 1016 (Fla. 1989). [19] Id. [20] Id. at 1016-17. [21] Unlicensed Practice of Law, The Fla. Bar, https://www.floridabar.org/public/upl/ (last visited June 3, 2020). [22] Id. [23] Id.