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Unauthorized Practice of Law
Defined(?)

It’s a conundrum. How do legal document preparers avoid the unauthorized practice of law, when no one seems to know the definition of practicing law?

On the American Bar Association’s web page definitions of the practice of law are broken down by state. The 1962 (!) case, Sperry, appears as the Florida definition for the unauthorized practice of law, affectionately shortened to: "UPL".

Unlicensed Practice of Law in Florida

Florida
State ex rel. The Florida Bar v. Sperry, 140 So.2d 587, 591 (1962)

"Many courts have attempted to set forth a broad definition of the practice of law. Being of the view that such is nigh onto impossible and may injuriously affect the rights of others not here involved, we will not attempt to do so here. Rather we will do so only to the extent required to settle the issues of this case.

It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law."

Can the "Practice of Law" be Defined?

So after stating in Sperry that defining the practice of law is “nigh onto impossible”, the court opinion continues to attempt it, (even though it states otherwise). “Representing another before the courts is the practice of law.”

However, certain agencies allow the practice of law by nonlawyers in administrative proceedings, therefore this is the authorized practice of law by nonlawyers.

Sperry is still widely depended upon to define the unlicensed practice of law in Florida. And no small wonder that it is widely used -- it is also very broad. Read the last paragraph over a few times -- the paragraph in bold italics.

The Ridiculousness of Sperry

Now think about how many times in your daily life someone who was not an attorney explained a contract to you or advised you of important rights. Unlicensed practice of law? I think not.

Maybe it was a Realtor listing your house for sale; or the young man who signed you up for your cell phone plan; or the lady at the title company who presided at the closing of your house; or your homeowner’s association telling you why you may not paint your house blue; or the cable guy locking you into a two year contract; and on and on.

Even worse, as I read that paragraph another time, it seems that if the person explaining the contract or law knows more than you do, then the person doing the explaining is most definitely engaging in the unlicensed practice of law.

Is Sperry an Attempt to Protect Lawyers?

A joint letter prepared by the Department of Justice, and the Federal Trade Commission, December 2002, commented on the American Bar Association’s proposed Model Definition of the Practice of Law. The following is an excerpt from the conclusion of that letter, which can be read and relished in its entirety here: Comments on the American Bar Association's Proposed Model Definition of the Practice of Law

"By including overly broad presumptions of conduct considered to be the practice of law, the proposed Model Definition likely will reduce competition from nonlawyers. Consumers, in turn, will likely pay higher prices and face a smaller range of service options. The Task Force makes no showing of harm to consumers from lay service providers that would justify these reductions in competition. As the New Jersey Supreme Court has concluded:

Not every such intrusion by lay persons into legal matters disserves the public: this Court does not wear public interest blinders when passing on unauthorized practice of law questions. We have often found, despite the clear involvement of the practice of law, that nonlawyers may participate in these activities, basing our decisions on the public interest.

Likewise, the Task Force, in recommending a proposed Model Definition of the practice of law, should allow lay competition that is in the public interest, and craft an appropriate definition of the practice of law that is based upon a careful review of the harms and benefits of lay participation in any service that the Definition would cover."

Landmark U.S. Supreme Court February 2015

What do legal document preparers and teeth whitening technicians have in common?

More than you might think.

The U.S. Supreme Court released an opinion on February 25, 2015 - NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, PETITIONER v. FEDERAL TRADE COMMISSION - 574 U. S. ____ (2015) ruling in favor of non-dentists and against dentists and their coercive tactics to restrict trade.

North Carolina dentists took exception to upstart Teeth Whitening Services offering teeth whitening to consumers at a lower cost than offered by dentists. North Carolina dentists are regulated by the Board of Dental Examiners, which is made up of - you guessed it - mostly dentists. Are you starting to see the correlation? The Florida Bar regulates attorneys and is made up of Florida attorneys. Anyway, the dentists took to sending the Teeth Whitening Services threatening letters, including cease and desist letters, and threats of criminal punishment for their teeth whitening activities. Sound absurd? It is, and we live it.

We, as Florida legal document preparers, live under the constant threat of coercive threats from the Florida Bar UPL Committees targeting document preparers with unsupported allegations of the unlicensed practice of law (UPL). And although, the Florida Bar UPL Committees try their best to frame their investigations as protective of potential consumer harm - no dice. Members of the Florida Bar UPL Committees and some Florida attorneys would just as soon document preparers would all disappear and go away forever. Since that is unlikely to happen, instead, they "investigate" the potential harm that document preparers pose. The telling point is that there doesn't need to be any allegation of consumer harm to trigger an investigation. And there is no definition of the practice of law to begin with. So how can anyone be accused of the unauthorized practice of law, when the practice has never been defined. A UPL investigation can cost a document preparer thousands in legal fees; threats of jail; curtailment of freedom of speech (by the way commercial speech is protected as free speech); and administrative fines imposed as a stipulated settlement when the UPL Committee finally drops their investigation.

And above all, these UPL witch hunts damage consumers. Florida legal document preparers are harassed, sometimes to the point of closing their businesses, due to the unfounded investigations and threats of fines and jail time. Document preparers provide a valuable service to consumers who either cannot afford; or do not choose to afford attorney fees. Without document preparers, many consumers would go without any legal help as financially out of reach. Without document preparers many consumers would not be able to divorce; modify their child support; sue in small claims; or any number of things that document preparers can help with.

Following are excerpts from the Supreme Court opinion:

"Starting in 2006, the Board issued at least 47 cease-and desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers. Many of those letters directed the recipient to cease “all activity constituting the practice of dentistry”; warned that the unlicensed practice of dentistry is a crime; and strongly implied (or expressly stated) that teeth whitening constitutes “the practice of dentistry.” App. 13, 15. In early 2007, the Board persuaded the North Carolina Board of Cosmetic Art Examiners to warn cosmetologists against providing teeth whitening services. Later that year, the Board sent letters to mall operators, stating that kiosk teeth whiteners were violating the Dental Practice Act and advising that the malls consider expelling violators from their premises...."

and:

"...[T]he ALJ [Administrative Law Judge] conducted a hearing on the merits and determined the Board had unreasonably restrained trade in violation of antitrust law. On appeal, the FTC again sustained the ALJ. The FTC rejected the Board’s public safety justification, noting, inter alia, “a wealth of evidence . . . suggesting that non-dentist provided teeth whitening is a safe cosmetic procedure.” ..."

and

"...When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest...."

and

"...By statute, North Carolina delegates control over the practice of dentistry to the Board. The Act, however, says nothing about teeth whitening, a practice that did not exist when it was passed. After receiving complaints from other dentists about the nondentists’ cheaper services, the Board’s dentist members—some of whom offered whitening services—acted to expel the dentists’ competitors from the market. In so doing the Board relied upon cease-and desist letters threatening criminal liability, rather than any of the powers at its disposal that would invoke oversight by a politically accountable official.... "

and

"...The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies...."

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