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Laws prohibiting the unauthorized practice of law (UPL) theoretically 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 January 30, 2015 the Florida Bar reported that 22 Florida attorneys were disciplined by the Florida Bar. Most of those attorneys were found guilty of multiple infractions. The disciplinary measures ranged from temporary suspension to permanent disbarment.
The most frequent infraction was mishandling clients' funds. The dollar amount of mishandled funds ranged from a few thousand dollars to millions. That these infractions represent financial harm is clear.
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.
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 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.
A Florida Bar UPL Committee or a private attorney can initiate an investigation of a legal document preparer without any consumer complaint. In fact, a complaint from a consumer alleging that he was harmed by a legal document preparer due to the unauthorized practice of law is rare. Consumer complaints represent only about 4% of UPL complaints initiated against legal document preparers.
The letter from the Florida Bar UPL Committee typically begins - "you may be engaging in the unauthorized practice of law" ... and continues on to include possible penalties for UPL. The unauthorized practice of law is criminalized in Florida, and is a third degree felony. Penalties can include fines up to $5,000. per incident and jail up to five years.
"Courts are also complicit in the pro-lawyer, anti-consumer bias found in UPL cases. Rhode’s article shows that courts adjudicating UPL cases rarely considered whether people were hurt by alleged UPL, much less how they were hurt. Only about a quarter of reported cases discussed public harm when litigated, despite the bar’s continued statements that UPL exists to protect the consumer. In the court cases where it was mentioned, public harm was used only to aid in determining a penalty, rather than to discuss how UPL harmed the consumer in question. Thus, even if UPL restrictions are intended to protect consumers, courts are not applying them for that purpose.
Cases that are litigated under UPL restrictions can also include legal services rendered which were actually helpful to consumers. Regardless of whether or not the person offering legal services provided a useful or even desperately needed service, he/she can be penalized under UPL restrictions. If these rules existed to protect and aid legal customers, as the bar states, a legal service that was helpful to the person receiving it should not be litigated under UPL. Yet Rhode found evidence supporting the lack of interest in interpreting UPL cases from a consumer point of view—only 11 percent of the UPL cases discussed whether or not the violation in question had met an important public need. The UPL services in question may have actually benefited legal consumers, but the bar and the courts chose to ignore the interests of the public.
One of Rhode’s conclusions is that “[a] more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar.” The bar may state that UPL litigation is aimed at protecting the consumer, but Rhode’s article proves that this is a tired statement without much substance. While the bar may have become more adept at selling this argument, it’s no more true than it was when Rhode first studied the topic three decades ago".
Prospective members must submit an application and meet standards prior to joining. We also hold regular webinars to keep members up to date on changes in laws and forms; host an annual conference; offer online courses for document preparers to increase their skills.
Two pages have recently been added to this site - Compliance - where consumers can complain if they feel they have been harmed by a document preparer. And, another page - Recognition - where consumers can offer feedback when they receive effective assistance from a member of the association.