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Survival Guide

Avoiding UPL investigation and prosecution is part of our world. Think of it as nothing more than an occupational hazard. If you're a roofer, don't fall off the roof. If you're operating a printing press, don't put your hand between the cylinders. If you're an electrician, don't touch live wires. And, if you've never worked in a dangerous trade; then just consider it as - don't step out of the door of a moving vehicle - common sense/ survival advice. So the occupational hazard of a possible UPL investigation is just part of the landscape. I know a few document preparers that have closed their doors entirely after an investigation. However, the best way to avoid an investigation is to take specific measures to avoid the investigation to begin with. We went over some of them earlier in this course, and we've included more on this page.

Members' Responsibilities

We, at FALDP, will help you defend yourself. We will help you, but also expect you to help yourself, participate in your defense, and keep us informed. Your investigation may be of interest to other members to help people be aware of specifics to avoid or trends in the Florida Bar's investigations. We will keep your identity confidential from other members upon your request. This is what we expect from you if you're received a letter from the Florida Bar suggesting that you may be engaging in the unauthorized/ unlicensed practice of law.

Let us (FALDP) know as soon as you receive the letter.
Listen to our suggestions as to what you should do next. Most Florida Bar letters request that you respond within 20 days. Let us review your letter before you send it. We will help you write it if you like. Many document preparers include far too much information in their response, and some include too little.
Everything you do to defend yourself is your decision. We will not act in your behalf unless you ask us to. If you ask, we will not only help you write your response, but we may also write a letter in your behalf. The letter in your behalf vouches for you as a member in good standing of our association, etc.
Whether we help you is decided on a case by case basis. We do not promise we will help. If you've done something that is serious, or that you've been warned about, we might decline to help you at all.
If you receive a CEASE and DESIST from the Florida Bar, we need you to forward it to FALDP. And we need to know whether and when you signed it.

UPL Survival

Avoid obvious red flags. Do not refer to yourself as a paralegal or legal assistant. If a consumer asks you if you're a paralegal, explain that no, not exactly - in Florida we are not allowed to refer to ourselves as paralegals when assisting pro se litigants. Paralegals are supervised by an attorney, and legal document preparers are not required to be supervised by an attorney.
Use robust disclaimers. The disclaimer and disclosure on www.faldp.org and on www.forthe-people-of-Florida.com were adapted from California's required disclosure/ disclaimer for Legal Document Assistants.
Include the language on your ads - we are not attorneys and do not provide legal advice.
If you e-file for your customers, e-file in their name, not yours. The e-filing system allows for an "other" to file in someone's behalf. But that other should not be a document preparer. Have your customer set up their own account and upload documents for them using their account.
Be aware of what you say on the phone and who you're talking to. Florida Bar UPL Committee members have been known to shop people and pretend to be a consumer. Entrapment? Probably, but protect yourself first. When a consumer calls me and says - I have a question. I say ok - first let me say I'm not an attorney and do not provide legal advice, but I'll answer your question if I can.
Be aware of what you put in writing. If a customer asks what they should or shouldn't do regarding their case, think about it before you answer. If he is asking a legal question, tell him you don't know, and he should ask an attorney that question. Sometimes you need to say "I don't know" even when you know. Even if the question is procedural, consider whether it goes to strategy, in which case the answer is still "I don't know". If it is purely procedural and factual, you can provide the information. If a consumer presses the question, and asks for your opinion. The simplest thing to say is - I don't have an opinion.
It is considered legal advice to select forms for pro se litigants. In my opinion, and I'm not sure whether the Florida Bar agrees with me or not, if the consumer knows what they want to do, but doesn't know what the form is called, then using the form/process they're asking for is not selecting their form. For example, a consumer wants to lower their child support, but doesn't ask you to prepare a Supplemental Petition for Modification of Child Support, because the consumer doesn't know the name of the form. This happens all the time. In my opinion, it is fair enough to tell him the name of the form and prepare it for him.
If you receive a letter from a Florida Bar UPL Committee -- don't panic. Take a deep breath and read it carefully. Forward it to us. If the letter alleges that you may have been engaged in UPL through language in an ad or on your website, correct the language. Then respond to the letter asking for the consumer complaint that triggered their letter. There usually is not a consumer complaint, and they will have to admit that to you. If there is a consumer complaint you have a right to see it.
Do not sign their notice letter; or Cease and Desist Order It is our belief, that once you sign a notice letter from a UPL Committee, you open yourself up to more harassment later on.
Do not immediately go out and hire an attorney to defend yourself. After all, the attorneys are all in the same club, and many of them will take your money, but will not want to cross the Florida Bar. In other words, in many instances, you will not receive the diligent defense you paid for. One of the tactics that the UPL Committees employs is attempting to damage you financially and thereby put you out of business.
If you are required to attend an informal UPL meeting, be aware of the kangaroo court nature of these meetings. Take a court reporter with you. Also consider taking along an attorney friend or another document preparer.
If you receive a subpoena for documents you prepared, object to it. Most of these are fishing expeditions and are attempts to find something you did wrong. If the issue regarding the production of documents goes to a hearing, and the judge requires you to produce your documents, you probably have to or you will be found in contempt of court.
We recently noticed a change in the UPL Rules on the Florida Bar's website stating that ALL documents prepared by a document preparer must be kept for six years:10-2(3) A copy of the disclosure, signed by both the nonlawyer and the assisted person, must be given to the assisted person to retain and the nonlawyer must keep a copy in the assisted person’s file. The nonlawyer must also retain copies for at least 6 years of all forms given to the assisted person. The disclosure does not act as or constitute a waiver, disclaimer, or limitation of liability. We don't know when this rule changed. We don't know whether there is a practical way to follow this rule. And we don't know what notaries are supposed to do, as there is a conflict for notaries in keeping their customer's documents.
Do not be afraid if the UPL Committee refers your case to a state attorney. Personally, I would welcome it. Criminal prosecutors have plenty of real criminals to prosecute; and likely do not have time or resources to pursue a case against you. In criminal law, statutes are strictly construed - not subject to interpretation as in civil law. The level of proof in criminal prosecutions is beyond and to the exclusion of every reasonable doubt; as opposed to a preponderance of the evidence in civil law. And, a basic tenet in criminal law is - no victim no crime.

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