Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter.  [Added 2/23/10]

    Client contacted Lawyer, who was licensed to practice law in North Carolina but not Florida, about possible representation in an estate matter.  Lawyer agreed to investigate the case for a $10,000 fee "and reserved the right to modify the fee arrangements if the scope of his engagement changed."  Lawyer acknowledged in writing to Client that he would need to be admitted pro hac vice in Florida and to associate with Florida counsel.  Subsequently Lawyer agreed to perform legal services for Client in the estate matter.  Lawyer wrote another letter to Client again stating that he was not admitted to practice in Florida and would need to bring in a Florida-admitted lawyer.  Lawyer contacted a Florida law firm about its possible involvement, but the firm was never hired.

    Ultimately the case was settled at mediation.  The day before the hearing to approve the settlement, Lawyer went to Client's home and asked her to sign the agreement and another document "which obligated [Client] to write a check to [Lawyer] in the amount of $1,000,000."  The next morning Client fired Lawyer.  The court approved the settlement and ordered that the $1,000,000 fee be placed into the trust account of one of Client's prior attorneys.  The money was then disbursed to Client.  The court later ordered Client to return the money to the trust account, but she could not do so.

    Client filed a declaratory judgment action against Lawyer, contending that "he had engaged in the unlicensed practice of law and was not entitled to fees for services."  Among other things, Client contended that her fee agreement with Lawyer was void ab initio and unenforceable because he was not admitted to practice law in Florida.  Lawyer counterclaimed.  The trial court "found that [Lawyer] engaged in the unauthorized practice of law and that his retainer agreement was void ab initio" but also ruled that "allowing [Client] to retain the fruits of [Lawyer]’s representation without compensation would be unjust enrichment" and awarded a fee to Lawyer based on quantum meruit.  Client appealed the quantum meruit award, and Lawyer cross-appealed the ruling that the fee agreement was void ab initio.

    The Fourth DCA affirmed.  "The trial court appropriately recognized that [Lawyer]’s letter contract with [Client] was void ab initio based upon Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995).  In Chandris our supreme court held that entering into a contingent fee contract to provide legal services in Florida by an attorney not authorized to practice in this state was void ab initio unless the services provided fit into one of the exceptions permitted in Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978)."  None of those exceptions applied in the instant case.  The court also observed that the unlicensed practice of law is illegal in Florida.  See F.S. 454.23.  "To award fees for illegal activities is contrary to public policy."

    The court further stated that reversal of the quantum meruit fee award was required by its decision in Vista Designs, Inc. v. Silverman, 774 So.2d 884 (Fla. 4th DCA 2001), which followed Chandris.

    The court also rejected Lawyer's claim that his conduct was permissible under the 2005 amendments to Florida Rule of Professional Conduct 4-5.5, concerning multijurisdictional practice.  Morrison v. West, __ So.3d ___ (Fla. 4th DCA, No. 4D08-1693, 2/17/2010).

Florida Supreme Court disbars lawyer for two instances of engaging in unlicensed practice of law.  [Added 11/18/09]

    The Florida Supreme Court disbarred Lawyer for two instances of engaging in the unlicensed practice of law.  The two instances were separate and involved significantly different circumstances.  The "Contempt Case" involved Lawyer's practice of law in Florida while he was suspended from the Florida Bar, and the "Disciplinary Case" involved Lawyer practicing law in Illinois where he was not licensed.  The two instances were filed as separate cases but were consolidated for trial before a single referee.

Contempt Case.  Lawyer had been suspended from practice.  He continued to occupy his former law office.  While suspended Lawyer wrote a letter to a California attorney.  The first sentence of the letter "stated:  'I am counsel to counsel to Anglo Bio Tran' and affirmatively stated that he had provided legal opinions about the sufficiency of a complaint filed against Anglo Bio Tran and had discussed the legal course he would advise for his 'client' in the extant or contemplated litigation."  The letter provided legal opinions about the "client's" case.  The referee found that Lawyer had engaged in the practice of law while suspended.  On review, the Florida Supreme Court agreed.  "We conclude that the referee's findings of fact, that [Lawyer] engaged in the practice of law while suspended and that he held himself out as a lawyer while suspended, are supported by competent, substantial evidence in the record."

Disciplinary Case.  While still a member in good standing of the Florida Bar, Lawyer wrote two letters on behalf of a Florida client to an Illinois attorney.  Lawyer was not admitted to practice in Illinois.  The letters were "in contemplation of a legal malpractice action" by Lawyer's Florida client against the Illinois attorney.  Furthermore, Lawyer "researched Illinois law on the Internet" and assisted his Florida client in filing and amending an Illinois civil action against the Illinois attorney.  The client's complaint showed the client's address as being the same as Lawyer's office address.  The referee found that Lawyer engaged in the unlicensed practice of law in Illinois and thus recommended that he be found guilty of violating Rule 4-5.5(a), Rules Regulating The Florida Bar.  Additionally, "[b]ecause [Lawyer] knowingly and intentionally permitted, and even assisted, [the Florida client] in filing a false pleading in Illinois (by allowing [the Florida client] to use [Lawyer]'s law office address as [the client]'s address in a civil action), the referee recommended that [Lawyer] be found guilty of violating Rules Regulating the Florida Bar 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice)."

    The Supreme Court approved the the referee's findings and recommendation in the Disciplinary Case, but the Court's analysis left it somewhat unclear as to where the line was drawn between permissible and impermissible conduct.  The Court stated that Lawyer's two letters to the Illinois attorney "standing alone do not constitute a violation.  However, [Lawyer] engaged in further conduct.  The record and testimony establish that [Lawyer] was not licensed to practice law in Illinois and did not seek pro hac vice status.  [Lawyer] admitted researching Illinois law on the Internet to work on this case.  In addition, the record demonstrates that while [Lawyer] was suspended, [Lawyer] used a paralegal so he could assist [the Florida client] to proceed "pro se" in the Illinois matters."  Florida Bar v. D'Ambrosio, __ So.3d ___, 34 Fla.L.Weekly S621 (Fla., Nos. SC07-1369, SC08-256, 12/12/2009), 2009 WL 3763081.

Florida Supreme Court refuses reinstatement for a lawyer who engaged in the "practice of law" while suspended; definition discussed.  [Added 7/13/09]

    In 2006 Lawyer was suspended by the Florida Supreme Court for negligently misappropriating trust funds.  Lawyer subsequently petitioned for reinstatement.  While suspended he had performed paralegal work to two attorneys and also earned "substantial sums as a private consultant with a consulting business he created to advise arcades."  Before his suspension Lawyer had practiced primarily in the gaming law area.

    The referee who presided over the reinstatement hearing found that Lawyer's financial situation was unstable, that he owes a substantial sum to the IRS, that he was "horrible at financial management," and that he failed to take a law office management course for which he had enrolled.  Additionally, while suspended Lawyer cashed checks that were made out to him but were to be used to pay for the legal services of an attorney. and Lawyer did not keep adequate financial records for his consulting business.  The referee recommended that Lawyer be reinstated, but with conditions.  The Bar opposed reinstatement and petitioned for Supreme Court review.

    The Court agreed with the Bar and denied reinstatement.  Contrary to the referee's conclusion, the Court concluded that Lawyer's activities while suspended constituted the practice of law.  "[A]lthough [Lawyer] informed his clients that he could not dispense legal advice, he was not simply identifying applicable statutes and ordinances with regard to opening arcades.  In fact, [Lawyer] testified that he would find the ordinances applicable to the jurisdiction in which an arcade was located and admittedly provided this advice based on his legal skill, which is greater than that possessed by the average citizen.  Further, as stated above, [Lawyer] gave advice on opening arcades, reported on changes in the law applicable to this area, reviewed leases, researched ordinances applicable to new arcade sites, and consulted with a representative of a state attorney’s office on the proper interpretation of gaming law for an attorney’s criminal client.  Based on the definition in [State ex rel. Florida Bar v.] Sperry [140 So.2d 587, 591 (Fla. 1962)], trading on one’s enhanced legal skill and knowledge to advise clients on how to legally proceed with a business transaction and on changes in the law based on statutory research and legal interpretation is the province of licensed attorneys.  Accordingly, the referee’s conclusion that [Lawyer]’s actions did not constitute the practice of law is erroneous and is disapproved."

    The Court further concluded that Lawyer had deposited funds that "were certainly in the nature of trust funds" into his business account on which a lien later was placed.  Lawyer's "poor judgment in accepting, managing, and depositing these checks, along with the fact that his financial management skills are 'horrible,' demonstrates his financial irresponsibility, a disqualifying factor in reinstatement proceedings.  See R. Regulating Fla. Bar 3.10(f)(1)(G).  This factor weighs especially heavy here because this same weakness caused or contributed to the conduct that led to [Lawyer]’s suspension in the first place."

Lawyer's restatement was denied and the Court ordered that he could not reapply for at least one year.  Florida Bar re: Michael Howard Wolf, 21 So.3d 15 (Fla. 2009).

Florida Supreme Court disbars rather than suspends lawyer for having what "was in essence a partnership" with nonlawyer for immigration practice.  [Added 6/30/08]  --  Florida Bar v. Glueck, 985 So.2d 1052 (Fla. 2008).

Party may recover fees paid to persons allegedly engaged in unauthorized practice of law only after Florida Supreme Court decides that the conduct constitutes UPL.  [Added 4/24/08]  --  Goldberg v. Merrill Lynch Credit Corp., 981 So.2d 550 (Fla. 4th DCA 2008).  NOTE:  An unpublished federal court opinion ruled that only the Florida Bar may bring an action for UPL.  "The district court determined that Plaintiffs lacked standing to maintain this action: only the Florida Supreme Court has jurisdiction to determine whether the alleged acts constitute the unauthorized practice of law.  We agree."  Gonciz v. Countrywide Home Loans, Inc. (11th Cir., No. 07-10977, 3/31/2008), 2008 WL 835251.

Trial court's order revoking out-of-state lawyer's pro hac vice admission is reversed.  [Added 2/15/08]  --  Brooks v. AMP Services Limited, 979 So.2d 435 (Fla. 4th DCA 2008) (on motion for clarification).

UPL for lawyer licensed only in New York to open Florida office and advertise for "N.Y. Legal Matters Only" or "Federal Administrative Law."  [Added 1/8/08]  --  Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007), 259 Fed.Appx. 208 (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 470 F.Supp.2d 1357 (S.D.Fla. 2006).

UPL in Florida for non-lawyer to engage in oral communication when helping others fill out immigration forms.  [Added 6/12/07]  --  Responding to an inquiry from the Florida Supreme Court, the Florida Bar Unlicensed Practice of Law ("UPL") Committee concluded that it would be the unlicensed practice of law for a non-lawyer to engage in oral communication with persons the non-lawyer is assisting in the completion of federal immigration forms.  Rule 10-2.1(a), Rules Regulating The Florida Bar, allows non-lawyers to engage in "limited oral communication" when assist others in completing legal forms that have been approved by the Florida Supreme Court.  In the view of the UPL Committee, Rule 10-2.1(a) operates to prohibit non-lawyers from engaging in oral communication to help others complete in non-approved forms, such as federal immigration forms.

    The UPL Committee also addressed an inquiry from the Court regarding whether non-lawyer form preparers may use spell-checking and proof-reading software when helping others fill out legal forms.  The UPL Committee adopted this policy in response:  "The Florida Bar will not prosecute a nonlawyer for the unlicensed practice of law for the use of computer software spell-checking, grammar-checking, or proofreading utilities to correct spelling or grammatical errors where the spelling or grammatical error is so obvious that the correction does not require discussions with the customer.  This policy does not prohibit The Florida Bar from investigating the activities of a nonlawyer to determine what services are being provided."

    More information on these topics can be found in the June 1, 2007, issue of the Florida Bar News; click here to read the story.

UPL for non-lawyer trustee to file notice of appeal on behalf of trust.  EHQF Trust v. S&A Capital Partners, Inc., 947 So.2d 606 (Fla. 4th DCA 2007).

Pleading filed by nonlawyer is not nullity but amendable defect, with no showing of excusable neglect required.  Colby Materials, Inc. v. Caldwell Construction, Inc., 926 So.2d 1181 (Fla. 2006).  NOTE:  Although concerned about the unauthorized practice of law, the Court noted in Torrey that default judgments were not as well-suited for combating this problem as were proceedings for injunction or indirect criminal contempt under Chapter 10, Rules Regulating The Florida Bar, or referrals to an offending out-of-state lawyer's home state bar disciplinary authority. 

Personal representative may not represent himself in case ancillary to estate administration, unless he is "sole interested person."  Benedetto v. Columbia Park Healthcare Systems, 922 So.2d 416 (Fla. 5th DCA 2006).

90-day suspension for lawyer who acted as counsel of record for disbarred lawyer and thus allowed him to provide legal services for his clients and commit UPL.  The Florida Bar v. Stein, 916 So.2d 774 (Fla. 2005).

Laws making UPL a felony take effect October 1, 2004.  Effective October 1st, practicing law without a license in Florida (including "holding out" oneself as a lawyer) is a third degree felony punishable by up to 5 years imprisonment and a fine of up to $5,000.  Fla.Stat. sec. 454.23.  Similarly, a disbarred or suspended lawyer who practices law is guilty of a felony.  Fla.Stat. 454.31.

Supreme Court levies injunction and $9000 penalty against company that provided legal services through its employees (including a Florida lawyer).  The Florida Bar v. We The People Forms and Service Center of Sarasota, Inc., 883 So.2d 1280 (Fla. 2004).