sunEthics

 

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.

(1) At least 30 days in advance of the committee meeting at which a hearing is to be held with respect to a potential advisory opinion, the committee shall give public notice of the date, time, and place of the hearing, state provide a general description of the subject matter of the request and the bar website and address where a full copy of the question presented can be obtained, and invite written comments on the question. On the announced date the committee shall hold a public hearing at which any person affected shall be entitled to present oral testimony and be represented by counsel. Oral testimony by other persons may be allowed by the committee at its discretion. At the time of or prior to the hearing any other person shall be entitled to file written testimony on the issue before the committee. Additional procedures not inconsistent with this rule may be adopted by the committee.

(2) – (3) [No change]

(g) [No change]

 

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University, Thomas Goode Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2012