Defining Unlicensed Practice
Of Law In Florida

It’s A Conundrum

Defining Unlicensed Practice of Law

FALDP

It’s a conundrum. How do we avoid practicing law, when no one seems to know the definition of practicing law?

I queried google and arrived at the American Bar Association’s web page with definitions of the practice of law, broken down by state.


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 online at:

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.

Bravo!

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