Supreme Court adopts rule allowing parties to private action alleging unlicensed practice of law to stay action in order to seek advisory opinion from Florida Bar.  [Added 1/28/12]

    In Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010), the Florida Supreme Court ruled that a party seeking to recover damages in a private action based on the alleged unlicensed practice of law must allege that the Court has determined that the activities in question constituted the unauthorized practice of law.  Because the rules in place at the time prohibited the Bar's UPL Committee from issuing an advisory opinion in a pending case, the Court directed the bar to propose an amendment to Rule 10-9.1 that would allow parties to the civil action to stay the action in order to seek a Court determination on an underlying UPL question.

    The Bar proposed an amendment.  The Court modified the Bar's proposal as suggested by a Bar member who filed comments.  "After considering the petition and the comment, the Court adopts the amendments to rule 10-9.1 with Mr. Chinaris’s proposed modifications.  The resulting amendments would provide parties in certain situations, who have brought a civil suit alleging the unlicensed practice of law, with a mechanism to request an advisory opinion."

    The amended rule is effective April 1, 2012.  In re: Amendments to the Rules Regulating The Florida Bar – 10-9.1 (Procedures for Issuance of Advisory Opinions on the Unlicensed Practice of Law), __ So.3d ___ (Fla., No. SC11-649, 1/26/2012).  The text of the amended rule appears below.

RULE 10-9.1 PROCEDURES FOR ISSUANCE OF ADVISORY OPINIONS ON THE UNLICENSED PRACTICE OF LAW

(a) – (b) [No change]

(c) Limitations on Opinions. No opinion shall be rendered with respect to any case or controversy pending in any court or tribunal in this jurisdiction and no informal opinion shall be issued except as provided in rule 10-9.1(g)(1). However, the committee shall issue a formal advisory opinion under circumstances described by the court in Harold Goldberg v. Merrill Lynch Credit Corporation, 35 So. 3d 905 (Fla. 2010), when the petitioner is a party to a lawsuit and that suit has been stayed or voluntarily dismissed without prejudice.

(d) – (e) [No change]

(f) Notice, Appearance, and Service.

(2) – (3) [No change]

(g) [No change]

Florida Supreme Court amends Rules of Judicial Administration regarding withdrawal motions, pro hac vice admissions, electronic filing, and electronic testimony.  [Added 10/4/11]  -- 

    The Florida Supreme Court amended the Rules of Judicial Administration effective January 1, 2012.  A sunEthics.com summary of the changes appears below.

    Motions to withdraw.  Amended Rule 2.505(f) requires that a motion to withdraw filed by a party's counsel include the client's last known telephone number and email address.  The Court stated in its opinion that the amendment would "make it easier for the court [in which the withdrawal motion was filed] to maintain contact with a party who may have to proceed pro se after withdrawal of the attorney."

    Pro hac vice admission.  Amended Rule 2.510(a) requires an attorney licensed in another state seeking pro hac vice admission in a Florida court "must make application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case."  However, the amended rule goes on to specify that "[a]ppearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period."

    Electronic filing.  New Rule 2.525(g) requires that "[a]ll documents transmitted in any electronic form under this rule must comply with the accessibility requirements of Florida Rule of Judicial Administration 2.526."  In turn, new Rule 2.526 requires that electronically-filed documents that become judicial branch records must be formatted in a manner that is accessible to persons with disabilities.

    Electronic testimony.  Looking toward the wider use of electronically-transmitted testimony, the Court amended Rule 2.530(d) to provide:  "A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure."  In explaining this change, the Court stated that the amendment "will allow the various Florida Bar rules committees to consider whether their bodies of rules should be amended to allow for the use of communication equipment without the parties consent."  In re: Amendments to the Florida Rules of Judicial Administration, 73 So.3d 210 (Fla. 2011).

Fourth DCA reverses order striking pro se petition for administration in probate matter.  [Added 6/5/11]  --  Lituchy v. Estate of Lituchy, 61 So.3d 506 (Fla. 4th DCA 2011).

Court makes UPL observation and disciplinary referral to Florida Bar in appellate opinion.  [Added 11/29/10]  --  Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185 (Fla. 3d DCA 2010).

Florida Supreme Court recognizes, but limits, private cause of action for UPL in Florida.  [Added 5/21/10]  --  Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010).

Florida Supreme Court approves changes to simplified forms for use by nonlawyers assisting third parties.  [Added 4/16/10]  --  In re: Revisions to Simplified Forms Pursuant to Rule 10-2.1(a) of the Rules Regulating The Florida Bar, 50 So.3d 503 (Fla. 2010).

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]  --  Morrison v. West, 30 So.3d 561 (Fla. 4th DCA 2010).

Florida Supreme Court disbars lawyer for two instances of engaging in unlicensed practice of law.  [Added 11/18/09]  --  Florida Bar v. D'Ambrosio, 25 So.3d 1209 (Fla. 2009).

Florida Supreme Court refuses reinstatement for a lawyer who engaged in the "practice of law" while suspended; definition discussed.  [Added 7/13/09]  --  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:  As of March 2010, this case is pending in the Florida Supreme Court.  See, e.g., http://www.floridasupremecourt.org/clerk/briefs/2008/1201-1400/08-1360_JurisIni.pdf .

    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).