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]

    Nonlawyer was the subject of a Florida Bar unlicensed practice of law ("UPL") investigation in 1998.  She was working on immigration matters.  By order of the Florida Supreme Court Nonlawyer was permanently enjoyed from UPL in Florida.  She sold her business to others, who renamed the business Millennia Consulting Services.  Nonlawyer continued to serve as an employee/manager for the business.

    Lawyer became involved with Millennia, establishing an office outside the Millennia suite in Aventura for work on labor and immigration matters.  Prior to that, Lawyer had operated exclusively out of his Hollywood office.  Lawyer, however, did not show his Hollywood office on his Aventura office letterhead.  Lawyer "entered into a partnership or business relationship with [Nonlawyer], through which he provided legal services to clients of Millennia through his law office at the Aventura address."  Lawyer "allowed [Nonlawyer] to be in control of Millennia's legal services and his law office's day-to-day operations at the Aventura location."  Eventually the business relationship between Lawyer and Nonlawyer soured, with Lawyer terminating the relationship and a new lawyer being found for affected clients.  Allegedly eight clients were adversely affected by Lawyer's misconduct in their cases.

    The Florida Bar charged Lawyer with ethical violations, and the referee who tried the case recommended that Lawyer be found guilty of violating rules that included Florida Rules of Professional Conduct 4-1.1 (competence), 4-1.3 (diligence), 4-1.4 (communication), and 4-5.4(c) (partnership with nonlawyer that includes the practice of law).  The referee recommended that Lawyer be suspended for 3 years.

    The Bar sought Supreme Court review of the recommended discipline.  The Court ordered Lawyer disbarred.

    Lawyer challenged the finding that he violated Rule 4-5.4(c).  The Court agreed with the referee.  "Due to the sharing of at least one employee, space, and fees, the referee appropriately found, based on competent, substantial evidence, that [Lawyer]'s law office and Millennia blended together into one operation that was in essence a partnership."

    Regarding discipline, the Court concluded:  "In addition to committing misconduct similar to that in [Florida Bar v.] Elster [770 So.2d 1184 (Fla. 2000)] and [Florida Bar v.] Abrams [919 So.2d 425 (Fla. 2006)], [Lawyer] affected more clients than in either of those cases, attempted to mislead the Bar during its investigation, assisted in the unlicensed practice of law, and formed an improper partnership with a nonlawyer whom he previously represented.  Thus, notwithstanding the referee’s erroneous determination that [Lawyer] was responsible for a client’s threatened deportation, the record supports a harsher sanction than in Elster and Abrams — disbarment.  See Fla. Stds. Imposing Law. Sancs. 7.1."  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]

    Plaintiffs sued in class actions seeking to recover fees paid for document preparation by non-lawyers.  Plaintiffs alleged that the conduct in question constituted the unauthorized practice of law ("UPL").  The trial court dismissed the actions, apparently on the ground that the Florida Supreme Court has exclusive authority regarding what constitutes UPL.

    Plaintiffs appealed.  They contended that Rule 10-7.1, Rules Regulating The Florida Bar, provides for such claims.  Despite appearing to agree with Plaintiffs on this point, the Fourth DCA affirmed:  "While we agree that the Rule provides for such claims, we hold that the claims must await a decision by the Supreme Court of Florida as to whether the conduct constitutes the unauthorized practice of law.  We therefore affirm."

    The court distinguished 2 cases relied upon by Plaintiffs, Vista Designs, Inc. v. Melvin K. Silverman, P.C., 774 So.2d 884 (Fla. 4th DCA 2001), and Preferred Title Services, Inc. v. Seven Seas Resort Condominium, Inc., 458 So.2d 884 (Fla. 5th DCA 1984).  In those cases the allegations of UPL were used as a "shield" against claims for fees filed by others, while in the instant case Plaintiffs were attempting to use the UPL allegations as a "sword."  The court stated:  "Here, however, the plaintiffs are pursuing an affirmative claim using the defendants’ alleged unauthorized practice of law in preparing documents as the basis. No case has approved of using the alleged unauthorized practice of law as a sword prior to a determination by the Supreme Court of Florida that the services actually constitute the unauthorized practice of law. We are not compelled to be the first."  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.

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]

    In an unpublished opinion the Eleventh Circuit affirmed a lower court decision that a lawyer licensed only in New York does not have a constitutional right to establish an office in Florida and advertise that he will represent clients on "New York Legal Matters Only" or "Federal Administrative Law."

New York Legal Matters Only.  The Florida Bar contended that the lawyer's advertising for these matters would be unlawful.  The court agreed.  "Under Florida law, it is unlawful for '[a]ny person not licensed or otherwise authorized to practice law in [Florida]' to practice law within the State of Florida.  Fla. Stat. § 454.23 (2004).  Gould, who is not admitted to the Florida Bar, does not have the authority to practice New York law in Florida.  See Fla. Stat., R. Regulating the Fla. Bar 4-5.5(b); Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003); Chandris, S.A. v. Yanakakis, 668 So.2d 180, 184 (Fla.1995); Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978).  Because the proposed advertisement concerns unlawful activity, the Florida Bar is entitled to regulate the advertisement.  See Cent. Hudson, 447 U .S. at 563-64, 100 S.Ct. at 2350."

Federal Administrative Law.  The court rejected the lawyer's assertion that he could advertise and engage in a practice "limited to federal administrative law."  The court stated:  "The words ‘federal administrative law’ apply to a broad range of legal issues, and are not limited to the representation of persons before federal agencies.  Issues of federal administrative law arise in state and federal courts, as well as before federal agencies.  . . .  The proposed advertisement for a ‘practice limited to federal administrative law’ is misleading and relates, at least in part, to unlawful conduct.  Gould’s proposed speech is not protected by the First Amendment and is subject to regulation by the Florida Bar."  Gould v. Florida Bar (11th Cir., No. 06-15142, Dec 12, 2007) (not selected for publication in the Federal Reporter), 2007 WL 4403556 , affirming Gould v. Harkness, 407 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).

UPL for lawyer licensed only in New York to open Florida office and advertise for "N.Y. Legal Matters Only."  [Added 8/28/06]  -- 

    Lawyer is licensed to practice law in New York.  Lawyer is not licensed to practice in Florida, although he has resided in Florida for 29 years.  Lawyer wished to open an office in Florida and advertise for legal business, stating in the ad that he was seeking either "New York Legal Matters Only" or "Federal Administrative Practice."  Concerned that the Florida Bar would prosecute him for the unlicensed practice of law (UPL) if he did this, Lawyer filed suit in federal court against the Florida Bar seeking to be permitted to engage in the proposed conduct.

    The court decided the case on motions for summary judgment.  The court stated that it "will only discuss and rule on the First Amendment issues" presented, although in its order the court did discuss the issue of UPL in Florida.  The court ruled in favor of the Bar.  While Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980) protects commercial speech, the court noted that speech proposing unlawful activity or that is misleading does not enjoy First Amendment protection.  The court concluded that Lawyer's proposed conduct was unlawful.  "[I]t is clear that [Lawyer]'s establishment of a Florida office is UPL" (citing Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978) and Rule 4-5.5(b), Florida Rules of Professional Conduct).  Additionally, the court concluded that the proposed advertisement was misleading because it did not state that Lawyer was licensed only in New York.  Gould v. Harkness, 407 F.Supp.2d 1357 (S.D.Fla. 2006), aff'd, Gould v. Florida Bar (11th Cir., No. 06-15142, 12/12/2007), unpublished, 2007 WL 4403556.

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).