800-515-0496

Avoid UPL! ~ Course Navigation

Have You Been Shopped?

Have you ever had that sinking feeling after hanging up the phone with a new prospective customer that something was just not right? Did you then mentally replay the entire conversation word for word hoping that you didn't say something that might sound like you were engaging in the unauthorized practice of law (UPL)? It's a sinking feeling alright, and one you surely want to avoid.

First, always remember to say these words at the beginning of a conversation even if you have to interrupt your potential customer. I am not an attorney, I am a legal document preparer. And what that means is I can prepare legal documents, explain procedure, and give you legal information, but I cannot offer advice or representation. See, it even rhymes.

But, still, that sinking feeling … Maybe the customer knew too much legal terminology. We know there are pro se litigants out there who are quite sophisticated, so that's not always a tell tale sign. Some pro se's are down right litigious and seriously missed their calling, they should be attorneys themselves. But, that begs the question if the pro se is so knowledgeable why would they need a document preparer anyway.

Another possible sign of a shopper is their being very well spoken and professional sounding. Again, plenty of our customers are professional people and are quite articulate. So, not necessarily a tell tale sign.

Here's one though that is an absolute tell tale sign. If your prospective customer is talking about their ongoing case, ask for the case number. And look it up while you're on the phone with them if you can. If that prospective customer won't or can't tell you a case number, chances are high that you're being shopped.

I think some of the UPL shopping episodes could be classified as entrapment. UPL being a crime and all. But, hard to prove, and it is an affirmative defense to a UPL allegation. By the time you have a chance to offer any sort of affirmative defense, you're in the middle of an investigation – exactly what you don't want.

Be vigilant. Always say the disclaimer, even if they told you they were calling from your website or ad, and you know full well it says right there that you're not an attorney and cannot offer advice or representation. Say the words anyway.

The UPL Investigation

Typically the UPL investigation begins with a letter that starts - “The Florida Bar has initiated an unlicensed practice of law investigation based on ...” And then the letter goes on to state their allegations. The UPL letter often states that UPL is a third degree felony and if found guilty can result in incarceration and/ or fines. The letter also usually requests that the document preparer respond to the allegations within 20 days of receiving the letter.

The Florida Constitution grants authority to regulate the practice of law to the Florida Supreme Court. Article V, Section 15, of the Florida Constitution specifies that:

The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

In turn the Florida Supreme Court delegates the authority to investigate UPL to the Florida Bar. Ultimately the case may be referred to state attorney for prosecution. The rules and procedure are  unclear. An actual case number is not issued -- only a TFB case number. “TFB” stands for the Florida Bar.

If a document preparer receives the UPL investigation letter, he needs to take action.

• First, it is the document preparer's right to know whether the investigation was opened because of a complaint. We suggest that document preparers respond to the complaint by asking in writing who made the complaint. We believe this is important information to know whether a consumer has been harmed, an attorney feels threatened, or the Florida Bar initiated the investigation on its own. 
• Second, the document preparer should set about correcting whatever infractions possible. Such as potentially confusing language on their website. Language that could be misleading and make consumers think that the document preparer is an attorney. And anything else that the Florida Bar's UPL letter mentioned.
• Third, prepare a response to the complaint letter.

One member who was investigated in 2014, responded to the Florida Bar UPL letter by sending them blank sample documents of every type of document she prepared. She stated in detail what types of documents she did and did not prepare and also provided the Florida Bar with the questionnaires she uses for document preparation for bankruptcy and immigration. Her investigation was closed as unfounded in less than two months.

We fully support cooperation with the Florida Bar, if for no other reason than survival. The Florida Bar has an annual budget of around 1.6 million dollars for the investigation of UPL. Cooperation, however, does not mean that document preparers should not defend themselves. Whether a document preparer should proceed pro se or retain counsel is a business decision that needs to be based on that document preparers unique circumstances, the specific nature of the UPL complaint, and the document preparer's financial situation.

After the document preparer responds to the initial UPL letter the Florida Bar may “request” an informal meeting with the document preparer to discuss the issues. Or, the Florida Bar may “request” or subpoena documents that the document prepared for consumers or uses in their business. Or, sometimes nothing happens.

If the Florida Bar requests an “informal” meeting, be aware of what you may be walking into. The informal meeting may be attended by the entire local UPL Committee and feel more like a kangaroo court than a meeting. Many document preparers have gotten through these informal meetings by taking along an attorney/ friend. If you don't know an attorney to bring along, you could consider inviting another FALDP member to accompany you for moral support, or hiring an attorney just to attend that meeting with you.

At this meeting, you might be asked a lot of questions by the UPL Committee members present. Answer as honestly as you can, but you may need to remind the panel that you understood this to be an informal meeting and did not prepare any answers. They may also attempt to intimidate you by stressing the penalties that could be imposed, or asking you to sign a “Cease and Desist Order”. You don't have to sign it. We suggest that you politely decline signing it, and state that you need time to run it by your attorney before you do anything.

Florida Bar Rules regarding the investigation of UPL.