In the Name of Consumer Protection

Laws prohibiting the unauthorized practice of law (UPL) exist to protect unsuspecting legal consumers from harm. Consumers should be wary of accepting poor legal advice from anyone. When visiting a lawyer's office a prospective client only needs to read the credentials on the wall to feel secure. Prior to a first consultation, a consumer can easily look up a lawyer online to find out whether that lawyer has a disciplinary history.

On June 3, 2011 “The Santa Rosa Press Gazette” reported that 25 Florida attorneys were disciplined by the Florida Bar. Most of those attorneys were found guilty of multiple grievances. The disciplinary measures ranged from temporary suspension of 30 days to permanent disbarment.


Anyone Else Would be In Jail

The most frequent infraction was mishandling clients' funds. The dollar amount of mishandled funds ranged from around $1,000. to well over $100,000. That these infractions represent financial harm is clear. Laymen, business people, legal document preparers, and anyone else would be in jail.

Lawyers have multiple opportunities to abuse the trust placed in them. The second most common infraction for which those 25 lawyers were sanctioned was failing to communicate with their clients. I can only speculate that they were sanctioned for failing to return phone calls to clients from whom they had accepted a retainer.

According to the Florida Bar, laws prohibiting UPL exist to protect legal consumers from the harm of accepting legal advice from someone who is not a lawyer. More specifically, in Florida, the harm of accepting legal advice from anyone who is not a member of the Florida Bar. The Florida Bar is vigilant in pursuing investigations of nonlawyers who may be guilty of committing UPL, no evidence of harm required. In fact, there doesn't even need to be a consumer complaint for the Florida Bar to initiate a UPL investigation of a nonlawyer.


Protection from Potential Harm?

My question: If the laws prohibiting UPL exist to protect consumers from harm, and there is no evidence of consumer harm – why try to protect a consumer when the consumer is not in harm's way? That sounds a bit paternalistic to me. The Florida Bar seems to claim that even if there is no consumer complaint, no apparent harm to anyone, there still may be potential harm.

The alleged potential harm that an unknown consumer may suffer from the imaginary legal advice given by a hypothetical nonlawyer.

It could happen.


Recent UPL Investigations


In three recent Florida Bar UPL investigations no consumer harm has been alleged. I know of these three investigations because I read the correspondence from both sides. In one instance the Florida Bar initiated an investigation against a legal document preparer, for a craigslist advertisement which clearly stated that the legal document preparer was not a lawyer and did not give legal advice. The Florida Bar UPL committee took exception to certain wording on the ad, such as “we can help”; “degree in Legal Studies”; and “independent paralegal”. The legal document preparer removed the ad immediately after the Florida Bar's first contact. After several more rounds of correspondence, with the Florida Bar demanding that the legal document preparer sign a notice letter; and the legal document preparer refusing – the Florida Bar went away.

"A Nullity"

In a second investigation the legal document preparer had prepared a Motion for Civil Contempt/ Enforcement, in an attempt to help her customer enforce the terms of a Marital Settlement Agreement. The customer was literate, intelligent, lived in Washington state; and preferred to use the clerical services of a Florida legal document preparer rather than deal with the intricacies of civil process and procedure long distance.

The former husband of the legal document preparer's customer; and the former husband's attorney filed the complaint against the legal document preparer together, alleging, among other things, that the Motion for Civil Contempt/ Enforcement was a “nullity” because it was prepared by a legal document preparer and not an attorney. The former husband and the former husband's attorney sought to have the Motion for Civil Contempt/ Enforcement dismissed on the grounds that it had not been prepared by an attorney. They lost.

The legal document preparer, upon being accused of UPL hired an attorney to defend her; wrote letters in answer to the Florida Bar investigation; and was generally intimidated. The final letter from the Florida Bar ending the UPL investigation as unfounded; included a laundry list of sanctions that could have been imposed if the legal document preparer had been found guilty. Among the items listed were threats of a felony charge/ conviction; and threats of fines up to $5000.


UPL Investigation in Progress

The third UPL investigation is in progress. Once again there is no consumer complaint, and no consumer harm. Do we have a pattern here? So far the legal document preparer has appeared in front of the Florida Bar's UPL Committee upon their request. The legal document preparer answered their questions, and denied engaging in the unauthorized practice of law. The most recent development is that the Florida Bar has demanded that the legal document preparer hand over the names and addresses of all of the legal document preparer's customers for the past three months; and the legal document preparer refused. We're waiting to see what happens next.


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