Florida Supreme Court recognizes, but limits, private cause of action for UPL in Florida.  [Added 5/21/10]

    Petitioners filed class action suits seeking to recover document preparation fees charged by Lenders for work allegedly performed by non-lawyer personnel that constituted the unlicensed practice of law ("UPL").  The trial courts dismissed the action, concluding that only the Florida Supreme Court "has jurisdiction to hear any claim based on the unlicensed practice of law and that Florida does not recognize a private cause of action to recover fees based upon" UPL.  Petitioners appealed.

    The Fourth DCA heard the consolidated appeals.  The appellate court "recognized that rule 10-7.1 of the Rules Regulating the Florida Bar, established by [the Supreme] Court, specifically provides that victims may bring private actions to recover fees and damages based on unlicensed practice. [Goldberg v. Merrill Lynch Credit Corp., 981 So.2d 550, 551 (Fla. 4th DCA 2008)].  The Fourth District, however, concluded that the rule was silent as to when such a suit may be brought and held that 'a supreme court determination on the unauthorized practice of law [is] a prerequisite' to such suits.  Id. at 552.  The Fourth District affirmed the dismissals because the respondents had not previously been prosecuted for their conduct by The Florida Bar or disciplined by [the Supreme] Court.  See id. at 551."

    The Florida Supreme Court reviewed the Fourth DCA's decision.  In its opinion the Court noted that it did not address the question of whether the conduct in question constituted UPL, but only "whether the class actions should go forward prior to a determination of the unauthorized practice of law being made by this Court."  The Court approved the appellate court's affirmance of the dismissals, although it used different reasoning.

    The Court determined that a private cause of action for UPL does lie in Florida.  "Petitioners argue that this Court’s rules expressly provide that while a complaint for injunctive relief must be filed by The Florida Bar in this Court, nothing precludes a victim from bringing a private civil action against an unlicensed practitioner to recover fees and damages.  We agree.  Rule 10-7.1(d)(3) of the Rules Regulating the Florida Bar specifically states that '[n]othing in this section shall preclude an individual from seeking redress through civil proceedings to recover fees or other damages.'  Therefore, the petitioners have standing to seek restitution of any claimed damages and are not jurisdictionally barred from initiating a civil action for recovery of any damages caused by the unlicensed practice of law."

    The complaints in the matter before the Court, however, were properly dismissed for failure to state a cause of action.  "To state a cause of action for damages under any legal theory that arises from the unauthorized practice of law, we hold that the pleading must state that this Court has ruled that the specified conduct at issue constitutes the unauthorized practice of law.  . . .  Stated another way, a claimant must allege as an essential element of any cause of action premised on the unauthorized practice of law that this Court has ruled the activities are the unauthorized practice of law. .  . . ."  (Citations omitted.)

    Determinations of UPL by the Court would include rulings on proposed advisory opinions from the Florida Bar Standing Committee on UPL and Court decisions in other actions brought by the Florida Bar.

    Regarding procedural aspects of private UPL actions, the Court stated:  "[I]f the actions complained of have been ruled on by this Court, then a plaintiff may be able to state a cause of action with proper pleading, even though the defendant accused of the unauthorized practice of law has not been subject to a Florida Bar proceeding.  However, a plaintiff will not be able to state a cause of action premised on the unauthorized practice of law on a case of first impression (where this Court has not ruled on the actions at issue).  In those cases, the pleading may be dismissed without prejudice or the action may be stayed until a determination from this Court pursuant to the advisory opinion procedures of rule 10-9.1 or the complaint and injunctive relief procedures of rules 10-5, 10-6, and 10-7 of the Rules Regulating the Florida Bar."

    Finally, the Court suspended Rule 10-9.1(c) and directed the Florida Bar to propose rule changes in accordance with its opinion.  Goldberg v. Merrill Lynch Credit Corp., 35 So3d 905 (Fla. 2010).

Florida Supreme Court approves changes to simplified forms for use by nonlawyers assisting third parties.  [Added 4/16/10]

    In response to a petition from the Florida Bar's Board of Governors, the Florida Supreme Court approved changes to the Bar-developed and Court-approved simplified forms that may be used by non-lawyers to assist other persons pursuant to Rule 10-2.1(a), Rules Regulating The Florida Bar.

    The Court approved amendments to these forms:  (1) Residential Lease for Single Family Home and Duplex (for a term not to exceed one year); (2) Residential Lease for Apartment or Unit in Multi-Family Rental Housing (Other than a Duplex) Including a Mobile Home (for a term not to exceed one year); and (3) Residential Landlord-Tenant Forms.  The Court deleted two forms:  (1) Residential Lease for Unit in Condominium or Cooperative (for a term not to exceed one year) and (2) Residential Lease for Single Family Home and Duplex (for a term not to exceed one year) 1992 version.  The Court also approved instructions to accompany some of the forms.  The Court expressed no opinion as to the legal correctness of the forms or the instructions.

    The Court's actions were effective immediately.  In re: Revisions to Simplified Forms Pursuant to Rule 10-2.1(a) of the Rules Regulating The Florida Bar, __ So.3d ___, 35 Fla.L.Weekly S216 (Fla., No. SC09-250, 4/15/2010), 2010 WL 1488111.

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]

    Client contacted Lawyer, who was licensed to practice law in North Carolina but not Florida, about possible representation in an estate matter.  Lawyer agreed to investigate the case for a $10,000 fee "and reserved the right to modify the fee arrangements if the scope of his engagement changed."  Lawyer acknowledged in writing to Client that he would need to be admitted pro hac vice in Florida and to associate with Florida counsel.  Subsequently Lawyer agreed to perform legal services for Client in the estate matter.  Lawyer wrote another letter to Client again stating that he was not admitted to practice in Florida and would need to bring in a Florida-admitted lawyer.  Lawyer contacted a Florida law firm about its possible involvement, but the firm was never hired.

    Ultimately the case was settled at mediation.  The day before the hearing to approve the settlement, Lawyer went to Client's home and asked her to sign the agreement and another document "which obligated [Client] to write a check to [Lawyer] in the amount of $1,000,000."  The next morning Client fired Lawyer.  The court approved the settlement and ordered that the $1,000,000 fee be placed into the trust account of one of Client's prior attorneys.  The money was then disbursed to Client.  The court later ordered Client to return the money to the trust account, but she could not do so.

    Client filed a declaratory judgment action against Lawyer, contending that "he had engaged in the unlicensed practice of law and was not entitled to fees for services."  Among other things, Client contended that her fee agreement with Lawyer was void ab initio and unenforceable because he was not admitted to practice law in Florida.  Lawyer counterclaimed.  The trial court "found that [Lawyer] engaged in the unauthorized practice of law and that his retainer agreement was void ab initio" but also ruled that "allowing [Client] to retain the fruits of [Lawyer]’s representation without compensation would be unjust enrichment" and awarded a fee to Lawyer based on quantum meruit.  Client appealed the quantum meruit award, and Lawyer cross-appealed the ruling that the fee agreement was void ab initio.

    The Fourth DCA affirmed.  "The trial court appropriately recognized that [Lawyer]’s letter contract with [Client] was void ab initio based upon Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995).  In Chandris our supreme court held that entering into a contingent fee contract to provide legal services in Florida by an attorney not authorized to practice in this state was void ab initio unless the services provided fit into one of the exceptions permitted in Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978)."  None of those exceptions applied in the instant case.  The court also observed that the unlicensed practice of law is illegal in Florida.  See F.S. 454.23.  "To award fees for illegal activities is contrary to public policy."

    The court further stated that reversal of the quantum meruit fee award was required by its decision in Vista Designs, Inc. v. Silverman, 774 So.2d 884 (Fla. 4th DCA 2001), which followed Chandris.

    The court also rejected Lawyer's claim that his conduct was permissible under the 2005 amendments to Florida Rule of Professional Conduct 4-5.5, concerning multijurisdictional practice.  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).