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Avoid UPL! ~ Course Navigation

An Ounce of Prevention

An ounce of prevention IS worth a pound of cure. The absolute best way to stay out of UPL trouble and avoid an investigation is to be vigilant about prevention. 

• Review your advertising regularly to make sure you're in the best possible compliance;
• Be aware of what you say and how you say it;
• When communicating with consumers, be sure to refrain from saying anything that could possible be interpreted as legal advice.
• Streamline your business practices and policies so that everything you do is standard. That way, you won't have to stop and try to remember, whether you did something or said something, because you are doing and saying the same things each time.
• Use disclaimers and disclosures over and above the basic - "We are not attorneys and do not provide legal advice".

Naming Your Business

The first thing to know, is that you should not name your business so that it in any way sounds like your business is a law firm. For example, if your name is Samantha Green, here are some good and bad ideas for naming your document preparation business.

Can you see the difference? We do not believe that document preparers are prohibited from using the word "legal" in their business name (although some document preparers have been told just that by the Florida Bar). We believe, that if a document preparer uses the word legal in their business name, it should modify document preparation services and NOT "services" by itself. We, the Florida Association of Legal Document Preparers, LLC have been in existence since 2010 with no repercussions regarding the use of "legal" in our business name. 

Red Flags

Notarizing Documents you Prepare - As far as we know, this is technically allowed, providing the notary/ document preparer does not have a financial interest in the transaction. However, this is an ongoing debate among member document preparers and there is conflicting information from seemingly authoritative sources online. FALDP does not govern notaries, the Office of the Governor does. When member document preparers ask us whether a notary may notarize documents that they prepared, we refer them to the notary rules. Our suggestion is that member document preparers refrain from notarizing documents that they prepare.  

Free consultation - This is in a 1997 case - Florida Bar v Cartacio which held: "... offering 'Free Consultation' in advertising his legal forms preparation service in that it holds him out as able to provide legal services in the nature of consultation and because it goes beyond the limitations placed on nonlawyer advertising by offering more than secretarial and notary services and selling legal forms and general printed materials; ..."

Immigration Consultant - This is a specific designation that is used in California, but not in Florida. 

Paralegal, paralegal service, and legal assistant - These terms are not to be used by document preparers to refer to themselves. This rule is in the Florida Bar UPL Rules. Even though you may have 25 years of paralegal experience and your diploma for Paralegal Studies hanging on your wall ...when you are offering document services to consumers you are NOT a paralegal or legal assistant. Read more here.

We help you from start to finish - This prohibition is more a common sense rule. We have no idea where this is in case law or anywhere else. But, more than one document preparer has been called on this during an investigation. According to the Florida Bar, the implication in this phrase - we help you from start to finish - means that representation is included. Document preparers are more likely to mean that hand holding, moral support, and answering questions are included - start to finish. The argument isn't worth it. Refrain from using this phrase, and simply say what you do start to finish. Like - we are here to answer your procedural questions throughout your case. 

No attorney/ no problem - This phrase and similar phrases sound like document preparation services are a substitute for attorney services. They're not. Phrases like this also needlessly anger attorneys. There is no point in twisting the dragon's tale. 

X years of experience, degree in legal studies/ paralegal studies - We don't know of any industry other than ours where people are prohibited from letting potential customers know about their experience and credentials. The following paragraph is from Florida Bar v Sperry: 

"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..."

Circular reasoning anyone? Of course it is. Why would our customers come to us and pay us if we didn't know anything more than they do? As a practical matter, we have always suggested that members include this type of factual information on the "About Us" page of their site or on their Linkedin profile, but not in their advertising. The Florida Bar claims that a document preparer stating their experience or academic credentials could mislead the public into thinking that the document preparer is capable of giving legal advice is disingenuous at best. A consumer drawing that conclusion despite the multiple disclaimers document preparers use, needs assistance with reading comprehension before receiving legal advice from anyone.

JD, Esquire, Juris Doctor - We have FALDP members who have completed law school. We also have members who were attorneys in their home states or countries. But, as far as the Florida Bar is concerned, if you're not a member of the Florida Bar, you may not use any of these designations. Using any of these is considered to be holding yourself out to be an attorney. Don't do it. If you are a document preparer and have completed law school. Either go take the Florida Bar Exam so that you can be considered a Florida attorney, or drop these designations altogether. Because you have completed law school you will be expected to know exactly how you can use the designation, and you could be penalized later on when or if you decide to join the Florida Bar.

We have an attorney on our team, attorney supervised, an attorney reviews your documents - No you don't. As a document preparer, you do not have an attorney on your team, your work is not supervised by an attorney, and an attorney does not review your documents. All of these statements smack of fee sharing between nonlawyers and attorneys. This is a big no no/ red flag.