Florida - UPL (Unauthorized Practice of Law)
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]
The Florida Supreme Court, on its own motion, amended Rule Regulating The Florida Bar 10-9.1, which sets forth the procedures for issuance of advisory opinions on the unlicensed practice of law (“UPL”). Paragraph (c) of the rule addresses when an advisory opinion may be rendered in connection with a civil suit alleging UPL.
“In our opinion in The Florida Bar Re: Advisory Opinion – Scharrer v. Fundamental Administrative Services, No. SC14-1730 (Fla. Oct. 15, 2015), we clarified that the decision in Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), requires that a civil complaint alleging a cause of action for damages based on the unlicensed practice of law must allege that this Court has ruled that the specified conduct at issue is the unlicensed or unauthorized practice of law, and that, if this Court has not yet ruled that the actions at issue constitute unlicensed practice, the civil case may be dismissed without prejudice or stayed until the parties can seek such a determination. We also concluded that the language in Bar Rule 10-9.1(c), requiring that a civil suit be ‘voluntarily dismissed’ without prejudice, is inconsistent with Goldberg. Accordingly, we hereby amend Rule Regulating the Florida Bar 10-9.1(c) as set forth in the appendix to this opinion, to remove the requirement for a ‘voluntary’ dismissal.” 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]
Petitioners sought an advisory opinion from the Bar’s Unlicensed Practice of Law (“UPL”) Committee. Petitioners presented 6 broad, multi-faceted questions, regarding whether activities of a nonlawyer company and its in-house counsel (who is not licensed in Florida) constitute UPL. The Committee consolidated Petitioners’ questions into a single question and promulgated a proposed advisory opinion that was filed with the Supreme Court.
The proposed opinion concluded that it does not constitute the unlicensed practice of law for a nonlawyer company or its in-house counsel who is not licensed to practice law in Florida to control, direct, and manage Florida litigation on behalf of a nonlawyer company’s third party customers when the control, direction, and management is directed to a member of The Florida Bar who is representing the customer in litigation. The proposed opinion went on to state that, while generally the conduct is not the unlicensed practice of law, there are circumstances in which the activity of the nonlawyer company or its in-house counsel could constitute the unlicensed practice of law depending on the level of involvement of the Florida lawyer. Ultimately, the proposed opinion stated that whether the practice is or is not the unlicensed practice of law would be dependent on the facts and circumstances of the particular case.
The Supreme Court disapproved the proposed opinion. In Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010), the Court “held that a civil complaint alleging a cause of action for damages based on the unlicensed practice of law must allege that this Court has ruled that the specified conduct at issue is the unlicensed or unauthorized practice of law.” If a question has not been ruled upon by the Court, Rule 10-9.1 of the Rules Regulating The Florida Bar authorizes a petitioner to seek an advisory opinion addressing that question. “In this instance, we conclude that Petitioners’ request for an advisory opinion did not allege the type of specific facts that, if assumed true, the Standing Committee could use to evaluate whether FAS [the nonlawyer company] and Zack [the in-house counsel not licensed in Florida] engaged in the unlicensed practice of law. The Standing Committee then consolidated Petitioners’ six questions into a single and more general question. As a result, we conclude that the proposed advisory opinion does not adhere to the process the Court established in Goldberg, in that it does not offer meaningful guidance as to whether the specified conduct at issue would constitute the unlicensed practice of law. Accordingly, we disapprove the advisory opinion; however, our decision is without prejudice to Petitioners submitting a revised petition for an advisory opinion, and to the Standing Committee conducting further proceedings consistent with our opinion in this case.” 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 was being prosecuted in circuit court on 2 counts of unauthorized practice of law (“UPL”). He petitioned the Second DCA for a writ of prohibition, seeking to block the UPL prosecution. He argued that the UPL prosecution was barred by double jeopardy because the circuit court had “initiated a direct criminal contempt proceeding against him based on the same facts that give rise to” the UPL charges.
The appellate court denied the petition. “Jeopardy does not attach in direct criminal contempt proceedings.” 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]
The Florida Bar Real Property, Probate, and Trust Law Section sought a formal advisory opinion from the Bar’s Standing Committee on Unlicensed Practice of Law regarding certain activities engaged in by non-lawyer community association managers (“CAMs”). After holding a hearing and gathering comments and testimony, the Committee promulgated an opinion for review by the Florida Supreme Court. The Court approved the opinion, giving it “the force and effect of an order of this Court.” See Rule 10-9.1(g)(4), Rules Regulating The Florida Bar.
The opinion first concluded that certain activities found to be the unlicensed practice of law (“UPL”) in a 1996 opinion of the Court were still considered to be UPL when engaged in by non-lawyer CAMs. See Florida Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So2d 1119 (Fla. 1996).
The opinion then addressed 14 additional activities. The Court agreed that the following 4 activities are UPL when engaged in by non-lawyer CAMs:
-- Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members;
-- Preparation of construction lien documents (e.g. notice of commencement, and lien waivers, etc.);
-- Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc.; and
-- Any activity that requires statutory or case law analysis to reach a legal conclusion.
The following 4 activities are not UPL when engaged in by non-lawyer CAMs:
-- Preparation of a Certificate of assessments due once the delinquent account is turned over to the association’s lawyer;
-- Preparation of a Certificate of assessments due once a foreclosure against the unit has commenced;
-- Preparation of Certificate of assessments due once a member disputes in writing to the association the amount alleged as owed; and
-- Drafting of pre-arbitration demand letters required by 718.1255, Fla. Stat.
Whether the following 6 activities are UPL when engaged in by non-lawyer CAMs depends on the specific circumstances involved:
-- Determination of number of days to be provided for statutory notice (UPL if determination requires interpretation of statutes, administrative rules, governing documents, or rules of civil procedure);
-- Modification of limited proxy forms promulgated by the State (UPL if the question involves discretion in the phrasing or involves interpretation of status or legal documents);
-- Preparation of documents concerning the right of the association to approve new prospective owners (UPL if preparation involves exercise of discretion or interpretation of statutes or legal documents);
-- Determination of affirmative votes needed to pass a proposition or amendment to recorded documents (UPL if determinations involve interpretation and application of statutes and association’s governing documents);
-- Determination of owners’ votes needed to establish a quorum (UPL if determinations involve interpretation and application of statutes and association’s governing documents); and
-- Identifying, through review of title instruments, the owners to receive pre-lien letters (UPL if CAM makes legal determination of who needs to receive a pre-lien letter). 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]
The Florida Supreme Court approved an advisory opinion prepared by the Florida Bar Unlicensed Practice of Law Committee concerning “Medicaid planning” activities engaged in by nonlawyers. Formal Advisory Opinion 2011-4 concludes that “it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare, and execute a Qualified Income Trust including gathering the information necessary to complete the trust.” Distinguishing the situation in Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978), the opinion further concluded that “a nonlawyer should not be authorized to sell personal service or Qualified Income Trust forms or kits in the area of Medicaid planning.” The opinion explains: “The use of the internet, the complexity of Medicaid planning and the harm that can result from nonlawyers giving improper advice, more fully discussed below, leads the Standing Committee to the conclusion that the use of legal kits and forms should not be allowed in this area.”
Further, a nonlawyer’s enlisted of attorney assistance will not render the activities permissible: “It is the opinion of the Standing Committee that unless the client establishes an independent attorney-client relationship with the attorney, payment from the client is directly to the attorney, and the initial determination that the particular legal document or Medicaid planning strategy is appropriate for the client given the client’s particular factual circumstances is the determination of the attorney, then the company would be engaged in the unlicensed practice of law.” 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).