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The FALDP Docket -- Florida Association of Legal Document Preparers Monthly Newsletter
May 14, 2011

Florida Association of Legal Document Preparers

The FALDP Docket

Volume 2; Issue 5 - Revised
May, 2011


JOIN US FOR OUR LIVE WEBINARS

The first in our series of webinars, The ABC's of LDP's - Running a Successful Legal Document Preparer Business was a hit.

Thank you all for your participation. There was lively discussion and interaction following the power point presentation.

We have two more Webinars planned, be sure and join us.

• Advance registration is required, bandwidth is limited.
• Premium Members - FREE
• Basic Members - $10.00* (per webinar session)

Advance registration will be available on our site. Emails will be sent with your webinar login information.


WEBINAR SCHEDULE

Family Law Document Preparation - A Practical Primer

May 28th, Presentation 11:00a to 12:00p, Live Discussion 12:00p to 1:00p

An overview of preparing documents for Florida family law. Ken will be unveiling our new family law forms preparation software, which will be made available to members after the webinar. We think you'll say “WOW!”. An ebook about preparing Florida dissolution of marriage documents will also be sent to all webinar participants.


The FAQs of BPPs - Bankruptcy Petition Preparation Basics An overview of preparing documents for Chapter 7 Bankruptcy.

Saturday, June 25th, 11:00a to 12:00p

NOTE: Enrollment in our Webinars is free for Premium Members; and only $10. each for Basic Members. Basic Members can sign up for the entire series for $25. which will automatically upgrade your membership to Premium. To participate in any of our Webinars, you must be an FALDP member.


Happy Birthday To FALDP

The Florida Association of Legal Document Preparers has been in existence for one year. This time last year we announced our association and opened up membership. Our year officially begins on June 1 – the start of hurricane season.

Our association has grown tremendously over the past year, and we thank you all for your input and participation. We can't exist without you. Traffic on our site has grown from zero last year to averaging well over 2,000 unique hits per month.

Although there is still plenty of work to do, we are happy with the progress of our association. The networking is working. I see and hear of members exchanging work, giving referrals, and turning to each other for advice (not legal advice, of course).

I know that I have had customers contact me directly because of my listing in the member directory, I suspect other members have had the same.


Membership Renewal

We will be sending out renewal notices during the last week of May. Our annual fees have not changed - $40 for Basic Membership; and $65 for Premium Membership. Members who joined in May of 2011, do not need to renew, your membership is paid until June 2012.

Members who joined during our membership drive in January 2011, joined at half price, and your renewal is at the regular rate. Those of you who joined during February, March, and April of 2011, we will be offering a discount for your annual renewal.

We hope each and every one of you has found enough value in our association to renew. Remember there is strength in numbers.

Yesterday I posted a letter on our site which I emailed to Governor Rick Scott. Please take a look at it, Letter To Governor Rick Scott and post your comments. Better yet, send the governor a letter yourself. Feel free to borrow my words, paraphrase or plagiarize my letter to your heart's content.


FALDP MEMBER SPOTLIGHT

Julie Jefferson

The first time I encountered Julie Jefferson was on TV. She has a TV commercial promoting her legal document preparation business – Freedom Rings – starring herself.

I immediately wrote down her web address, and sent her an email inviting her to join us. Her TV commercial is posted on her website, check it out at www.freedomrings.biz

fter graduating from UCF with a B.A. in Legal Studies, Julie searched high and low for a paralegal position that paid enough to pay the bills. She finally found a position at a law firm in Sarasota; worked there for nearly a year; then left to have a baby. She stayed home for her son's first year, then began a new job search.

After responding to an ad for a sales job at a national legal document franchise, Julie was hired amid fierce competition. She was hired as a manager at We the People of Sarasota; a national chain which is now bankrupt, and infamous for their Florida UPL case. According to Julie, We the People's final demise was caused by a change in management, rather than UPL.

At We the People she went through a two week corporate training course, where she learned their business practices. She already had law firm experience, and a Bachelor's Degree. As manager she took in the document preparation work from customers, and sent it out to processors who were located in another office. The processors would return the documents to her; and she would check them – for accuracy and completeness.

After We the People closed down, Julie took over their storefront location. Freedom Rings is on a main thoroughfare in busy downtown Sarasota. Customers still come in her store and ask if this is We the People, even though her sign is there.

The previous owners even abandoned their neon window signs – Divorce, Bankruptcy – which Julie hung back up in the window, and she was back in business.

When I asked Julie, the one thing she would like consumers to know about the legal system, she said she would like citizens to understand the harassment that legal document preparers endure so that consumers may access their legal system.

She is passionate about her work as a legal document preparer; and helping her customers access their legal system. It is the people's law, attorneys may not hoard the legal system.

As a high profile business -- a TV commercial, in a busy downtown storefront, in a location with a history; Julie has been repeatedly targeted by the Florida Bar.

This Member Spotlight section has been added as a regular feature of our newsletter.


LDP's - A CALL TO ACTION

WE NEED YOUR HELP.

Members, colleagues, and associates, we need your help in our efforts. Many of you are aware of the Florida Bar's proposed rule changes that affect us. More important than the possible effect on us, is the effect on citizen's access to the legal system.

If you've been too busy working hard to know about the proposed UPL rules changes, please read about them on our site, and post your comments.

There is also proposed legislation which would change everything. If the proposed amendment to the Florida Constitution passes in 2012, neither the Florida Supreme Court nor the Florida Bar would control court rules; attorneys; or UPL regulation. Regulation would be according to statutes passed by the legislature.

WHAT YOU CAN DO:

1. Spread the word. Educate your customers, business associates, and everyone else you come into contact with about citizens rights to access the legal system. Write letters to the editor, post on blogs, and call in to talk radio. (Shout out to Mike Wappler for his appearance on talk radio.) Don't forget to tell us about your efforts and write your own pages, comments, and articles on FALDP's website, FALDP Facebook page, and our new FALDP Blog.

2. Help us organize a letter writing campaign to sponsors and opponents of the legislation. We need volunteers to draft the letters, and others to analyze which politicians to target. More on this to come.

3. We need volunteers to help us with a second campaign to let the trade schools know how difficult the Florida Bar makes it for "nonlawyers", a.k.a. LDPs to operate in Florida. Those of you who are graduates of legal studies programs; legal assisting; or paralegal programs; or are currently in school, please contact your professors and school administrators and let them know how it is in the real world.

(I was told by the Florida Bar that I may not state in my advertising that my undergraduate degree is in "Legal Studies". I know of at least one other member who received a similar warning from the Florida Bar).


UPL In The News

One of our members recently received a letter from the Florida Bar stating that she is no longer under investigation. That news is a relief, however, even their letter stating that she is no longer under investigation is chilling. Here is an excerpt, quoted from the Florida Bar letter:

As a reminder, it constitutes the unlicensed practice of law for a nonlawyer to give legal advice to another person, or interpret the legal effect of laws or statutes for another person; and to prepare, draft or assist in the preparation or drafting of any pleadings, motions, or other legal documents for another person without direction, supervision and review by a lawyer.

It is a contempt of the Supreme Court of Florida, as well as a third-degree felony punishable by a term of imprisonment up to five (5) years, and a fine up to Five Thousand Dollars ($5,000.00), for an unlicensed individual and/or business entity to engage in the practice of law, including, giving legal advice, drafting legal documents; or providing legal services except when authorized by Florida or federal law, court rule, case law or administrative rule.

This, to a legitimate business person, who has already been found to have been wrongfully accused. I would hate to see the Florida Bar's love notes to people who were rightfully accused. I am not sure when they raised the fine to $5000. That may be a cumulative fine of $1000. per incident, I'm not sure. Could someone please fact check that and email me. When I searched that question, I came across the playbook for UPL prosecutions, here is the link:

UPL Referee Manual

Name names!

Another of our FALDP members is currently under investigation by the Florida Bar UPL Committee. The most recent development is that the Florida Bar has requested that she provide the names and addresses of all of her customers for the past three months.

Remember the McCarthy era? I know, most of us are not old enough to actually remember the antics of “The House Committee on Un-American Activities”.

In the fifties, Senator Joseph McCarthy wrecked the careers of many Hollywood actors by accusing them of being communists. Accused actors were interrogated about the identity of anyone else who may have ever attended a communist meeting – name names! That was then, and amidst the cold war hysteria.

Nowadays the McCarthy era is considered a shameful and embarrassing government witch hunt conducted by an over zealous bureaucrat.

Even the late great Lucille Ball was accused of Un-American activities. In her defense, her husband, Desi Arnez quipped, “The only thing red about Lucy is her hair, and even that's not legitimate”.

Let us hope, we are not forced to name the names of our customers, who trust us with their confidential information so that we may help them access their court system.


What's New at FALDP


NEW INTERACTIVE FORMS

Legal Document Preparers who prepare Florida family law forms struggle with the official PDF forms published by the Florida Supreme Court on www.flcourts.org Even some of the newer forms, just posted this past December, are lacking.

Some of the fill-able forms fill incorrectly, with different point sizes or fonts. Other PDF forms don't fill at all, with a promise that they will become fill-able in the future.

FALDP is working on it. We are in the process of making the forms fill-able, and while we're at it, improving the formatting. No worries, none of the language has been touched. These forms are suitable for legal document preparers to use for their customers, or for consumers to use for themselves.

Have a look at our Interactive Family Law Forms page.


THE BIG PICTURE

And History Repeats Itself

The following is an excerpt from an Amicus Brief filed, October 2, 1978, by William H. Adams III, Esquire, in support of the defense of Rosemary Furman. If you would like to read the entire brief, I will be happy to send it to you. The case most often cited, even today, by the Florida Bar in support of their position on UPL is Brumbaugh. Rosemary Furman's case was decided around the same time as the Brumbaugh case. Please read more about Rosemary Furman on our site, if you need to better understand the background information.

I have removed many of the citations, for easier reading. Mr. Adams' discussion of the constitutional aspects of UPL are especially enlightening. It would be nice if attorneys would step forward and offer us their assistance as Mr. Adams offered his assistance to Rosemary Furman in 1978. All of the words are those of Mr. Adams, none are mine.

IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Petitioner,

vs.

ROSEMARY W. FURMAN, d/b/a Northside Secretarial Service,

Respondent.

BRIEF OF AMICUS CURIAE

William H. Adams III Jacksonville, FL

“The doctrine as applied in Florida was relatively liberal even before this Court's decision in The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla.1978). Real estate brokers could as an incident to their work prepare sales agreements (but not deeds, which are far simpler documents). Title companies could prepare the documents and conduct the closing of transactions which they insured. But the Court has never been called upon to make an in-depth analysis of the factors which must be considered in determining whether, and under what circumstances, "giving legal advice" falls within the exclusive province of members of the Bar. As a result, as the Court acknowledged in Brumbaugh, the line between legal and illegal activities has been blurred at best. Wherever the line should properly be fixed, it is clear that the very existence of the line has created substantial popular controversy. The fact that the line is so difficult to draw may suggest the absence of a principled reason for the state to draw it at all. 111. The Constitutional Issues.

In Brumbaugh, the Court recognized that a person has a constitutional right to represent himself. It also announced that it would not enforce unnecessary regulations that have the effect of hindering individuals in the exercise of this right. It observed in Brumbaugh that persons who decide to represent themselves need access to information to prepare their cases. Obtaining this information does more than benefit individuals who choose to handle their own cases. It makes court proceedings more efficient. It would, of course, be better for the courts if people were represented by competent counsel, but if they have decided to represent themselves, access to information enables them to do so with considerably less confusion.

In Brumbaugh, the Court pointed out that persons who want to represent themselves can go to law libraries and read books containing the kind of information they need even though there is no guarantee that the information is accurate. They may also buy and use forms and printed materials, but they may not receive "legal advice" from nonlawyers. Accordingly, the Court held that Ms. Brumbaugh could not make inquiries or answer questions from her clients about which forms to use, how to fill them in or where to file them. In other words, she could give only generalized advice in the form of printed material. She could not give or receive information designed to personalize the advice and take into account the particular circumstances of her customers.

In Brumbaugh, the Court was faced with a difficult dilemma. It recognized that under Bates v. State Bar of Arizona, 433 U.S. 305 (1977), Ms. Brumbaugh probably had a constitutional right to sell printed materials and legal forms containing information people needed to handle their own divorces. The Court obviously wanted to protect that right and, at the same time, preserve the traditional idea that when a layman "gives legal advice" he is engaging in the unauthorized practice of law. The result was a line drawn between generalized written advice and personalized assistance. The Court suggested that this distinction is appropriate because people who seek legal assistance are likely to place more trust in individual advisers than in printed materials.

Professor Friedman's prescription for dealing with the licensing issue is to put the burden "strongly upon" those who seek to justify restrictions of the type involved in this case. Where the restraint affects the free flow of information, as it does if the right to give and receive "legal advice" is limited, the Constitution creates the strong burden of proof which must be carried by those who seek to sustain the validity of the restraint.

The Court was correct in observing that persons seeking this kind of information place more trust in individual advisers than in written materials. But this is not a reason f o r prohibiting lay advice. Individuals place their trust in advisers because most people, particularly those in the socio-economic classes most likely to seek advice from lay persons, can learn more easily through face-to-face, oral communications. Advice given by nonlawyers like Ms. Brumbaugh or Ms. Furman may not be as complete or accurate as it would be if it were given by an attorney, but it is much more likely to provide the needed information. People who go to Ms. Furman for advice surely get more and better information from her than they could get through the sterile process of reading through divorce books in a law library. People are more likely to put trust in personalized advice than in written information because they can understand it better. It does not follow, however, that personalized advice is likely to be more harmful to them than written information. Under Brumbaugh, Ms. Furman is entitled to sell standardized forms and printed material containing generalized legal advice. People who are not accustomed to reading technical material may have difficulty understanding the material she sells. It is difficult to see why oral explanation to consumers of how printed material should be used is likely to do more harm than consumers' use of the printed material by itself. The only way many consumers can effectively absorb the information they need is through an oral exchange of information with someone who knows more than they do. Even if consumers could find a lawyer who would be willing to give them this kind of advice, no principled reason is apparent why the law should prevent them from seeking oral advice from the adviser of their choice. It is respectfully submitted that although the rule in Brumbaugh was an important milestone the distinction it draws between general and personalized information effectively deprives people who wish to represent themselves of the only reasonably available source of the information they need to enable them to do so.

Giving legal advice and assistance to people who wish to represent themselves is clearly a kind of commercial speech. In the past it was thought that commercial speech stood on a different footing than speech of other kinds. It is now recognized that even commercial speech is protected by the First Amendment. Bates v. State Bar of Arizona, supra; In re Primus, U. S., 56 L.Ed. 2d 417, 98 S.Ct. (1978);Cf. Ohralik v. Ohio State Bar Ass'n., U. S.,56 L.Ed. 2d 444, 98 S.Ct. (1978). See also Coase, Advertising and Free Speech, Journal of Legal Studies 1 (1977).

Although the ultimate contours of the constitutional protection afforded to commercial speech cannot be known at this time, it seems clear from the cases cited that the state may not prevent or regulate commercial speech unless it carries the burden of showing that the restraint imposed is narrowly drawn and reasonably necessary to protect against serious potential harm. The Court recognized this principle when it decided the Brumbaugh case.

The only empirical study of whether the use of divorce kits has had adverse effects concludes that kit users derived about the same benefits as persons who used lawyers. No greater adverse effects were reported. Nevertheless, the study found that although kits were effective, their use had been artificially restricted by "difficulties inherent in unassisted kit use." The report said:

The conclusion is inescapable that the for- malities requisite to divorce need not be the exclusive domain of lawyers. From this flow two corollaries. The First is that the public should not be denied access to lay divorce assistance. Laymen can safely be permitted to offer personalized form pre- paration aid and to publish kits. If abuses develop, the states retain the option to impose civil liability or institute licensing requirements. (Emphasis added.) [Note - Emphasis added by original author – William H. Adams, III]

CONCLUSION

This brief is not intended to cast doubt on the motives, sincerity or good faith of members of The Florida Bar who honestly believe that people who rely on legal advice given by unlicensed persons will suffer serious damage. No one can deny that damage is a possibility. On the other hand, we all know that the process of rationalization unconsciously motivated by natural self interest often results in a quite honest exaggeration of risk.

The law is a great and honored calling. Our function as members of the legal profession is to do what we can to see that law, as it develops, promotes rather than restricts human freedom. As lawyers we cannot afford to make it appear that we feel so insecure in our own professional worth that we must use the force of the state to prevent our would-be clients from going elsewhere for advice.

In the words of a recent article on this subject: “In the long run, the legal profession will not thrive and prosper by indicting,prose- cuting, convicting, enjoining, and issuing orders to show cause to those laymen and lay organizations that, in their ordinary day-to-day business, are involved with people and the law. The legal profession will thrive and prosper if, by its deeds, it can cause a now skeptical public to believe that it has something more and better to offer than even the best intentioned amateur.”

The Unauthorized Practice of Law and Pro Se Divorce: An Empirical Analysis, 86 Yale L.J. 104 at 165

The Court should exercise its policy making responsibility to relax substantially that aspect of the unauthorized practice of law doctrine which prevents lay persons from giving "legal advice." [Emphasis added]

What do you think? We welcome your comments.


FALDP Contact Information:
Main number – (727) 344-9240
Fax – (888) 840-4934
Email – staff@faldp.org
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