Florida - UPL (Unauthorized Practice of Law)
Narrow majority of Supreme Court rules that company connecting drivers who get traffic tickets with lawyers who will defend tickets engaged in unauthorized practice of law. [Added 10/14/21]
Rejecting the recommendation of the referee appointed to try the case, in a 4-3 decision the Florida Supreme Court decided that a nonlawyer-owned company that connects drivers who get traffic tickets with lawyers who will defend the tickets engaged in the unauthorized practice of law.
TIKD Services, LLC and its nonlawyer founder (collectively, “TIKD”) operated a business targeted at drivers who received traffic tickets for non-criminal infractions. Through TIKD’s website and mobile application, a driver with a ticket in parts of Florida can create an account and upload a copy of the ticket. Using computer applications, TIKD analyzes the ticket to determine whether it will offer its services to the driver. If TIKD informs the driver that it declines the ticket, no fee is charged. “If TIKD accepts a ticket, the driver is charged a percentage of the ticket’s face value, and his or her contact information is forwarded to a Florida-licensed attorney whom TIKD has contracted with to provide traffic ticket defense services to its customers. All costs associated with defending the traffic ticket are paid by TIKD, including any court costs or assessed fines. TIKD does not guarantee that a driver’s case will be resolved favorably and provides a full refund if points are ultimately assessed against a driver’s license.”
A driver who wishes to use TIKD’s services must agree to the “Terms of Service,” which state that TIKD is not a law firm and does not provide legal services. The driver authorizes TIKD “to hire an independent licensed attorney” to represent the driver and pay the lawyer on the driver’s behalf. “The attorneys TIKD contracts with are paid a flat rate per case, regardless of the case’s outcome. The fee paid to each attorney is set by TIKD and is paid from the fee it collects from each driver. Each attorney is free to accept or decline representation of any driver, and drivers are likewise free to accept or decline representation from any attorney. If representation is accepted, the attorney communicates directly with the driver and handles all aspects of his or her ticket defense case.”
The Florida Bar charged TIKD with engaging in the unlicensed practice of law (“UPL”). A referee was appointed to preside over the case. The referee determined that TIKD was not engaged in UPL. Rather, the referee found that: TIKD’s advertising would not lead reasonable people to think it was offering legal service; TIKD provides only administrative and financial services; TIKD’s payment of the lawyer’s fee “did not convert its services into the practice of law” (citing rules authorizing third-party payment of fees, Rule 4-1.8(f) and 4- 5.4(d)); all legal services were provided by Florida-licensed lawyers; and there was no evidence that TIKD’s services placed the public at risk of being advised or represented by unqualified persons.
The Bar sought review in the Supreme Court. In an opinion authored by Justice Lawson and joined by Justices Labarga and Grosshans, the Court disapproved the referee’s recommendation and concluded that “TIKD is engaged in the unauthorized practice of law.” The Court permanently enjoined TIKD “from engaging in such acts in the future.” Chief Justice Canady concurred in the result and wrote a short concurring opinion. Three justices dissented in an opinion by Justice Couriel.
The Court analyzed TIKD’s conduct in light of the factors set forth in this passage from State ex rel. Fla. Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), vacated on other grounds by 373 U.S. 379 (1963): “[I]n determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule 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.”
In the Court’s view, the Sperry factors supported a UPL finding for at least 4 reasons.
First, “the services TIKD provides have the potential to substantially affect whether a driver timely receives legal representation and the quality of the representation he or she receives.” The Court noted that TIKD could miss “critical deadlines that substantially impair the legal rights of its clients” and could fail to pay the fines owed, thus harming the drivers. And, “because TIKD is not a lawyer, this Court would be powerless to act for the protection of the public.”
In a footnote accompanying its discussion of the first reason, the Court offered what may be the key principle underlying its decision in this case: “The fact that TIKD apparently does not routinely miss legal deadlines is of no consequence because the precedent we would set by allowing this nonlawyer entity to directly advertise legal services and accept legal clients would necessarily open the door for any nonlawyer to similarly control the provision of legal services in the same way – and with no oversight from this Court.” (Emphasis added.)
Second, the money that TIKD collects from a driver at the outset to pay future expenses (the lawyer’s fee and the cost of the ticket, if any) is not held in a trust account – in contrast to up-front money received by a lawyer.
Third, the Court stated that “an inherent conflict and corresponding risk to the public arises whenever a nonlawyer like TIKD controls and derives its income from the provision of legal services.” Regarding the risk that there could be “a conflict between the profit demands of the nonlawyer and the professional obligations of attorneys to act in the interests of a client,” the Court noted that “TIKD is not subject to the Bar’s jurisdiction and, other than Bar discipline proceedings against individual attorneys, there is no means by which to protect the public or guard against such conflicts.”
Fourth, the Court stated that “as a nonlawyer, TIKD simply lacks the skill or training to ensure the quality of the legal services provided to the public through the licensed attorneys it contracts with, nor does it possess the ability to ensure compliance with the Rules of Professional Conduct or to otherwise guard against the type of conflict discussed above.” The Court commented that “the reasonable protection of a driver’s legal rights and interests in a traffic citation matter require that the type of services TIKD provides and advertises to the public be performed or overseen by a person who possesses a knowledge and skill in the law greater than that possessed by the average citizen.”
Pointing to prior UPL cases supporting its decision, the Court stated that those cases reveal “that we have unanimously determined similar arrangements to constitute the unauthorized practice of law, particularly when the arrangement resulted in a nonlawyer either deriving income from or exercising a degree of control over the provision of legal services.” See Florida Bar v. Consolidated Business & Legal Forms, Inc., 386 So.2d 797 (Fla. 1980); Florida Bar re Advisory Opinion – Medicaid Planning Activities by Nonlawyers, 183 So.3d 276 (Fla. 2015). The Court noted that “TIKD has no means of producing income except through the provision of legal services – i.e., the representation of clients in a civil or criminal county court proceeding. That is, TIKD is in the business of selling legal services to the public.”
The Court acknowledged “access to justice” and “advances in technology” issues implicated by its decision. Regarding access, the Court stated: “[I]rrespective of any benefits arguably created by TIKD’s unique, and perhaps temporary, niche, we cannot address the access to justice problem by allowing nonlawyer corporations to engage in conduct that, under this Court’s sound precedent, constitutes the practice of law.” As to technology and law practice, the Court noted: “[A]dvances in technology have allowed for greater access to the legal system through readily available legal forms, which represent the commoditization of legal work products that at one time were only readily accessed by hiring lawyers. Although continuing advances in technology could offer similar opportunities, those issues should be explored through this Court’s rulemaking process – see R. Regulating Fla. Bar 1-12.1 – where differentiation is possible and where all ramifications can be fully explored with all interested parties.”
Chief Justice Canady authored a brief opinion in which he concurred in the result based on prior case law, but stated that “any reexamination of the policy judgments reflected in our precedents on this subject should be undertaken in the context of rule proceedings related to proposed amendments to the Rules Regulating the Florida Bar.”
Justice Couriel authorized a detailed dissenting opinion joined by Justice Polston and Justice Muniz. Florida Bar v. TIKD Services LLC, __ So.3d __ (Fla., No. SC18-149, 10/14/2021), 2021 WL 4782701.
Supreme Court approves advisory opinion concluding it is not unlicensed practice of law for lawyer licensed in other states but not Florida to work remotely from home in Florida on federal intellectual property matters. [Added 5/21/21]
In 2019 a lawyer licensed not licensed in Florida asked the Florida Bar Unlicensed Practice of Law Committee whether his proposed course of conduct would constitute the unlicensed practice of law (“UPL”) in Florida. The lawyer was licensed in New Jersey, New York, and before the U.S. Patent and Trademark Office. He was working with a New Jersey law firm specializing in federal intellectual property law. The firm had no office in Florida and did not plan to expand its business to Florida. The lawyer was planning to move to Florida. The lawyer informed the UPL Committee that he wanted to work for the law firm remotely from his Florida residence. The lawyer stated that he would have no public presence or profile as a lawyer in Florida, that neither he nor the firm would advertise the lawyer’s presence in Florida, that the firm letterhead and website would not list the lawyer’s Florida address (simply showing his New Jersey business address), that he would only work on federal intellectual property matters, and that he would not work on matters of Florida law.
The UPL Committee held a public hearing in February 2020 and drafted a proposed advisory opinion, which was published for comment. No comments were filed in opposition to the proposed opinion. The proposed opinion concluded that the lawyer’s proposed conduct would not constitute UPL in Florida.
As required by Rule 10-9.1, Rules Regulating The Florida Bar, the proposed opinion was filed with the Florida Supreme Court for the Court’s review. On May 20, 2021, the Court approved the opinion. The opinion concludes: “It is the opinion of the Standing Committee that the Petitioner who simply establishes a residence in Florida and continues to provide legal work to out-of-state clients from his private Florida residence under the circumstances described in this request does not establish a regular presence in Florida for the practice of law. Consequently, it is the opinion of the Standing Committee that it would not be the unlicensed practice of law for Petitioner, 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.” The Florida Bar re: Advisory Opinion – Out-of-State Attorney Working Remotely from Florida Home, __ So.3d __ (Fla., No. SC20-1220, 5/20/2021), 2021 WL 2006584.
Court did not abuse discretion in denying pro hac vice admission to out of state lawyer who recently received letter of admonishment from Arizona Bar. [Added 2/18/16]
Defendant in a Florida state court civil suit sought representation from Wilenchik, an Arizona lawyer not licensed in Florida. Wilenchik moved for admission pro hac vice 5 weeks before trial. His motion disclosed a letter of admonishment that he recently received from the Arizona Bar for sending an inappropriate letter to a court. The motion also noted that ‘[a]ny other prior investigations were fully dismissed without any complaint.’”
After a hearing, the court denied the pro hac vice motion without prejudice based partly on its incompleteness. About 10 days before trial Wilenchik filed a new motion that included his complete Arizona disciplinary history, as well as an affidavit describing his credentials and attacking the credibility of articles the opposing party cited at the first hearing. The court denied the motion, stating in its order that allowing Wilenchik to appear was likely to adversely affect the administration of justice and disrupt the proceedings.
Wilenchik made a third attempt at pro hac vice on the first day of trial, which the court also denied.
After an adverse jury verdict, Defendant unsuccessfully moved for a new trial and for judgment notwithstanding the verdict on grounds that included the denial of Wilenchik’s pro hac vice application. Defendant appealed.
The Fourth DCA affirmed, ruling that the trial court did not abuse its discretion in denying pro hac vice admission. “[T]he trial court specifically found that Wilenchik’s appearance would adversely affect the administration of justice and disrupt the proceedings. It based this conclusion on Wilenchik’s motion and attached exhibits. In particular, the court described how Wilenchik appeared to be boasting about having obtained a mistrial in the past and explained how Wilenchik’s Bar complaints from Arizona concerned the court. Although Wilenchik was only disciplined once by the Arizona Bar, his documents indicate the Arizona Bar had a ‘robust debate’ over whether to proceed with investigations on other charges. The potential offenses described include insulting a judge (calling him ‘a danger to public safety’) and attempting to improperly contact a judge presiding over a case. The trial court found that ‘it appears that if a Florida attorney had committed these acts which have been disclosed,’ three Disciplinary Rules ‘would be violated.’” Prewitt Enterprises, LLC v. Tommy Constantine Racing, LLC,__ So.3d __ (Fla. 4th DCA, No. 4D11-4208, 1/27/2016), 2016 WL 313954.
On its own motion, Supreme Court amends Rule Regulating The Florida Bar 10-9.1 regarding advisory opinions in connection with civil suits alleging unlicensed practice of law. [Added 10/23/15] -- In Re: Amendments to Rule Regulating The Florida Bar 10-9.1, __ So.3d __ (Fla., No. SC14-687, 10/15/2015), 2015 WL 6017300.
Supreme Court rejects Florida Bar proposed advisory opinion filed by Unlicensed Practice of Law Committee because it did not address “specified conduct” as required by Court’s Goldberg decision. [Added 10/22/15] -- Florida Bar re: Advisory Opinion – Scharrer v. Fundamental Administrative Services, __ So.3d __ (Fla., No. SC14-1730, 10/15/2015), 2015 WL 6019364.
Fact that someone was subject of direct criminal contempt proceeding will not bar unauthorized practice of law prosecution against him based on same underlying facts. [Added 6/4/15] -- Marino v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-582, 5/27/2015), 2015 WL 3397126.
Supreme Court issues UPL advisory opinion concerning activities of community association managers. [Added 5/20/15] -- Florida Bar re: Advisory Opinion – Activities of Community Association Managers, __ So.3d __ (Fla., No. SC13-889, 5/14/2015), 2015 WL 2236890.
Supreme Court concludes that most “Medicaid planning” activities conducted by nonlawyers are the unlicensed practice of law. [Added 1/25/15] -- Florida Bar re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers, __ So.3d __ (Fla., No. SC-14-211, 1/15/2015), 2015 WL 174994.
$900 million judgment reversed because trial court abused discretion by striking non-Florida lawyer’s motion for admission pro hac vice. [Added 12/31/13] -- Trans Health Management, Inc. v. Webb, __ So.3d __, 38 Fla.L.Weekly D2585 (Fla. 1st DCA, No. 1D12-1355, 12/10/2013), 2013 WL 6438940.
No “special background” in type of litigation at issue needed for out-of-state lawyer to be admitted pro hac vice in Florida state court. [Added 10/25/13] -- Kelley v. Kelley, 123 So.3d 692 (Fla. 4th DCA 10/23/2013).
Supreme Court holds disbarred lawyer who continued to practice in contempt and orders him jailed for 60 days. [Added 5/14/13] -- Florida Bar v. Palmer, __ So.3d __ (Fla., No. SC10-543, 5/9/2013), 2013 WL 1908405.
Court erred in dismissing case where party was not notified that his lawyers had withdrawn and was not provided copy of withdrawal order. [Added 3/7/13] -- Brunoehler v. Burger, 108 So.3d 733 (Fla. 5th DCA 3/1/2013).
Court erred in revoking a foreign lawyer’s pro hac vice admission based on a conflict alleged by the opposing party. [Added 2/15/13] -- Information Systems Associates, Inc. v. Phuture World, Inc., 106 So.3d 982 (Fla. 4th DCA 2/13/2013).
Lawyer’s representation of criminal defendant while on one-month suspension from practice is not per se reversible error, per Fourth DCA. [Added 12/17/12] -- Thornhill v. State, 103 So.3d 949 (Fla. 4th DCA 2012).
Court erred in striking pleadings filed pro se by out-of-state lawyer on grounds that he committed UPL. [Added 12/6/12] -- Bovino v. MacMillan, 101 So.3d 937 (Fla. 4th DCA 2012).
Supreme Court amends family law form to implement disclosure requirements for non-lawyers who help parties complete forms. [Added 11/20/12] -- In re: Amendments to the Family Law Rules of Procedure, 104 So.3d 314 (Fla. 2012).
Court erred in denying pro hac vice admission based on alleged conflicts of interest. [Added 7/9/12] -- THI Holdings, LLC, v. Shattuck, 93 So.3d 419 (Fla. 2d DCA 2012).
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 re: Amendments to the Rules Regulating The Florida Bar – 10-9.1 (Procedures for Issuance of Advisory Opinions on the Unlicensed Practice of Law), 82 So.3d 66 (Fla. 2012).
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 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).
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).
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).
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).
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).
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 is in the June 1, 2007, issue of the Florida Bar News.
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. Florida Bar v. Stein, 916 So.2d 774 (Fla. 2005). Laws mople Forms and Service Center of Sarasota, Inc., 883 So.2d 1280 (Fla. 2004).