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The Florida Association of Legal Document Preparers presents a collection of essays about the unauthorized practice of law (UPL) in contrast to consumers' right to access the legal system. In Florida there is a vast gray wasteland in which the unauthorized practice of law resides. The most egregious incidents of UPL should be vigilantly prosecuted -- those incidents where a nonlawyer pretends to be a lawyer and causes harm to a consumer.
We strive to frame this issue in the context of consumers' rights. Our belief is that some consumers are not able to afford to hire an attorney. Others are unable to comprehend form instructions to prepare the forms themselves.
Consumer's access to the legal system and the unauthorized practice of law are closely related. By creating some of the laws surrounding the unauthorized practice of law, the government is theoretically protecting consumers from unscrupulous opportunists who claim to be lawyers when they're not; give damaging legal advice; and take consumers money and take off.
However, we believe, the governmental effort is actually a thinly veiled effort to maintain the turf for the attorneys. We admit that, as in any industry, there are some bad actors among legal document preparers; just as there are among attorneys. However, for the most part, we believe that most legal document preparers want only two things:
1. To serve their customers;
2. To earn an honest living.
Consumers and pro se litigants -- this affects you. If document preparers are harassed by Florida Bar UPL Committees with unfounded allegations of "potential harm" document preparers may cease to exist. Florida legal document preparers represent a low cost alternative for legal services. Not a substitute for an attorney -- an alternative. Some consumers cannot manage to pay attorney's fees, and lacking some sort of assistance, typically go without taking any action at all. The results can be devastating to them, their finances, and their families.
We owe it to ourselves and our children to continue to expect, no not only "expect" -- demand, that we live in a free society. To expect and demand that our freedoms are not unreasonably curtailed by our government. America is the land of the free, albeit with plenty of warts and wrinkles, we are still the greatest country on the planet. So far so good - we can travel when and where we want, with few exceptions; we can marry as we please; divorce as we please; have as many children as we can afford; work wherever we can get hired; start a business; get an education; say what we want to whom; worship as we please; and bear arms.
Consider the reasons colonists came to America ... they were poor, oppressed, thrown out of debtors prison onto the streets. They came across the ocean to the new world for a new beginning, a chance for a new life and for freedom. Besides the Indians, who were here first, these colonists are our forefathers and our examples. Their spirits are imprinted on our collective DNA. Consider the mentality--"one door shuts and another one opens"; "this branch in the road is a dead end, so let's chop a new one through the jungle"--is characteristically American. We are rugged individualists, fiercely independent, watchful of the government, and endlessly resourceful.
So why would we be accepting of the government's paternalistic stance claiming that they know better than us, as to how we might be harmed? There is possible harm in everyday life, from crossing the street to eating a peach. You can drown in a tea spoon of water and be electrocuted turning on a light. Yet, the government allows us and expects us to navigate life and make our own decisions based on the potential risks. And rightly so. But, when it comes to the possible harm that could be done by a non-lawyer document preparer, our government is there to [ostensibly] protect consumers from potential possible harm.
Absent any consumer complaint; and despite no evidence of harm -- the very fact that there could be potential harm is cause enough for the Florida Bar to unleash their power against document preparers. And their power is considerable. According to the "2012 Survey of Unlicensed Practice of Law Committees" the Florida Bar has the largest annual budget of any state for prosecution and investigation of the unauthorized practice of law (UPL) -- an astounding 1.6 million.
An inadvertent mistake of language in advertising, a document preparer referring to himself as a paralegal, can trigger an investigation. The letter from the Florida Bar typically begins - you may be engaging in the unauthorized practice of law ... and continues to explain that UPL is a third degree felony with fines up to $5000 per incident and up to five years in prison. Intimidating and frightening to a document preparer whose only crime was to call himself a paralegal.
Without a case filed in circuit or criminal court, the Florida Bar UPL Committee can and often does initiate an investigation and prosecution against a document preparer. No consumer complaint required.
In addition, attorneys have standing to initiate a UPL case against a document preparer. The UPL Committees are apparently given the right to prosecute UPL cases through the Florida Supreme Court despite the criminalization of UPL. At the investigation stage, there is no court case filed, instead the case is assigned a TFB case number, which stands for - The Florida Bar. Hearings are held by the Florida Bar UPL Committee where the document preparer is questioned under oath behind closed doors at the courthouse; and typically, the document preparer is not advised of the nature of the hearing and often appears pro se. Yet another intimidating tactic employed by the UPL committee under the auspices of investigation and prevention of potential consumer harm; is to subpoena a document preparer's records to include all documents prepared for their customers within a specified time period. The specified time period is often months or even years.
Although the document preparers, many of whom specialize in family law document preparation, acknowledge their preparation on each form prepared at the time of preparation by including their information on each form; and the documents prepared are usually public record, having been filed in the courts anyway; the prospect of having to produce all documents for the UPL Committee is chilling. The intrusive nature of the requests amount to an overreaching fishing expedition; and undermine the trust between the document preparer and their customers. The further prospect of someone from the UPL Committee contacting a document preparer's customers to ask them whether they received legal advice is deep freeze. Many consumers and apparently many UPL Committee members don't distinguish well between legal advice and legal information.
I titled this essay - The Unbridled Pursuit of Liberty (UPL) for the sole purpose of retooling the acronym. There is actual consumer harm resulting from unauthorized practice of law investigations and that harm is done to consumers by the UPL Committees. The foxes overseeing the hen house. In intimidating document preparers out of business, consumers lose.
Consider the soon to be divorced wife with small children whose powerful philandering husband refuses to pay the bills during divorce proceedings to starve her out in an ill advised effort to force her to take him back. The wife, in this scenario, having depended on her husband financially has no means to afford an attorney, and also does not qualify for legal aid if there is no domestic violence and she has more than $500 to her name -- has no choice but to proceed pro se. A document preparer can help by assisting this woman with procedure, preparing professional documents, and including the requests in the petition or answer that this pro se litigant requests and desperately needs to level the playing field.
Or consider the unwed father left reeling after his first child support hearing before a General Magistrate. The unwed father welcomed the chance to go to court to finally be able to regularly see his child; and voluntarily provided for his child since day one without any court order. But, he quickly learns that the voluntary payments don't count; and the child support hearing has nothing whatsoever to do with child custody. A document preparer could assist this father by preparing documents to have his case heard in circuit court with the outcome that he would be named the legal father with full rights of paternity.
This wife and this unwed father would
suffer harm if document preparers cease to exist. These two consumers
are minute examples of the sea of consumers that cannot afford to
hire an attorney, but need some sort of legal help. The wife could
become homeless with children unless she manages to obtain temporary
support pending the final judgment of divorce. The unwed father
remains at the mercy of his baby's mama as to when he sees his child
-- harming not only the unwed father, but the child as well.
In 1859, John Stuart Mill, wrote in "On
Liberty" the following words:
object of this Essay is to assert one very simple principle, as
entitled to govern absolutely the dealings of society with the
individual in the way of compulsion and control, whether the means
used be physical force in the form of legal penalties, or the moral
coercion of public opinion. That principle is, that the sole end for
which mankind are warranted, individually or collectively, in
interfering with the liberty of
action of any of their number, is self-protection. That
the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will,
is to prevent harm to others. His
own good, either physical or moral, is not a sufficient warrant. He
cannot rightfully be compelled to do or forbear because it will be
better for him to do so, because it will make him happier, because,
in the opinion of others, to do so would be wise, or even right...
The only part of the conduct of anyone, for which he is amenable to
society, is that which concerns others. In the part which merely
concerns himself, his independence is, of right, absolute. Over
himself, over his own body and mind, the individual is sovereign."
Mill, John Stuart (1859). On Liberty (2 ed.). London: John W.Parker & Son.
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