Advice to All Florida Lawyers and Law Students Regarding Misconduct and Grievances

The following information tells how and where consumer allegations involving possible misconduct of a Florida lawyer may be filed. It also explains The Florida Bar grievance system, established by the Supreme Court of Florida to enforce uniform standards of professional conduct.

WHO REGULATES THE CONDUCT OF LAWYERS?

The Supreme Court of Florida regulates lawyer conduct in the state. The court created The Florida Bar and requires all lawyers to be members of that organization and to pay dues which fund the total cost of the lawyer discipline program.

The Florida Bar acts as a prosecutor in lawyer discipline cases, much like the state attorney’s office does in criminal cases. Staff lawyers and grievance committees, of which one-third of the members are not lawyers, investigate alleged lawyer misconduct in those cases referred to the grievance committees. Trials are held before Supreme Court-appointed judges.

LAWYERS’ CONDUCT RULES ARE STRICT

Most lawyers are reputable. They sincerely try to do all they lawfully can on behalf of their clients. Lawyers value their good reputation. The Florida Bar wants to do all it can to resolve any difficulties which may rise between you and the lawyer.

We know that even if only a few lawyers engage in misconduct, our responsibility is to do something about it. In some cases, the problem between the attorney and the client does not constitute a violation of ethics rules.

The procedures established by the Supreme Court of Florida and The Florida Bar for dealing with your allegations are designed to provide a thorough review of the matter in order to resolve the unfortunate situation in a way that is fair both to you and to the lawyer involved.

WHAT IS THE PURPOSE OF THE LAWYER GRIEVANCE SYSTEM?

The purpose of The Florida Bar grievance system is to provide a means to discipline a lawyer if the lawyer deserves it. The Supreme Court imposes discipline directly. However, a grievance committee may recommend that an attorney receive an admonishment for misconduct considered minor.

The Florida Bar, as a prosecutorial agency, does not and cannot give individual legal service or advice to any person making allegations.

Further, any loss the client may have sustained as a result of the matter involved cannot be recovered through disciplinary proceedings. The lawyer may be punished, but if the complaining person has suffered a financial or property loss, that person’s rights must be enforced by usual legal methods against the person responsible for the loss.

In addition, The Florida Bar has no authority to review a court decision on a particular matter — and the Bar’s grievance system may never be used as a substitute for an appeal of such cases.

WHAT ARE A LAWYER’S OBLIGATIONS?

When attorneys enter the practice of law in Florida, they all obligate themselves to uphold the law and to abide by the Rules Regulating The Florida Bar. These rules of the Supreme Court of Florida specifically regulate the professional conduct of lawyers. Those who violate these professional standards are subject to discipline.

However, lawyers are human. Sometimes they make mistakes. Some are more competent than others. A lawyer may lose the trust and confidence of a client for various reasons. In many cases where a client becomes dissatisfied, grounds for discipline do not exist because a lawyer can be disciplined only for violating the standards of conduct set forth in the Rules Regulating The Florida Bar.

The Rules Regulating The Florida Bar are fairly extensive and we understand that you may not be familiar with them. While not all-inclusive, the following acts may constitute rule violations and should be reported to us: misrepresentation, neglect, conflicts of interest and failure to return or safekeep client property.

Allegations of unprofessional conduct against a Florida lawyer are serious matters and immediately put into action the investigative and judicial processes of The Florida Bar. The Bar, as an arm of the Supreme Court of Florida, receives and reviews all complaints alleging unethical conduct by lawyers licensed to practice in Florida. The lawyer inevitably suffers from the allegation, regardless of whether any misconduct is ultimately found.

If you feel your problem may be the result of inadequate communication — lack of sufficient agreement or some misunderstanding — it may be that the problem can best be solved by a frank talk with the lawyer. Call the lawyer, explain your dissatisfaction, and ask for a full explanation of the matter involved. Such a discussion often will eliminate or lead to a solution of the problem.

HOW ABOUT FEE DISPUTES?

Fee disputes are not handled by The Florida Bar’s grievance system because of restrictions placed on us by decisions of the United States Supreme Court related to antitrust. Also, fee disputes generally do not involve questions of ethics or professional conduct unless the fee is clearly excessive. However, the Bar does have a statewide fee arbitration program available to resolve these problems. Information regarding the Fee Arbitration Program may be received by calling (850) 561-5600.

WHERE DO I FILE A COMPLAINT?

You must put your allegations in writing, either by using The Florida Bar’s Form or by providing the following information:

1. Give the bar your name, address and phone numbers as well as similar information on the attorney involved. You’ll also need to say if you have another attorney. Because information provided to the bar will become public and is subject to disclosure to the lawyer about whom you complain, your address and telephone number cannot be withheld by the bar. If your address and telephone number are not known to the lawyer, and you want it to stay that way, provide an alternative means for the bar to contact you (such as a post office box or business address and telephone number, if proper).2. Try to set forth the facts on which your allegations are based. Attach copies of any court papers, documents, letters or other materials that pertain to your allegations when you write the bar office. Please do not send original documents. If the bar has to copy originals for you, there will be a charge.

3. The complaint must contain a statement providing: “Under penalty of perjury, I declare the foregoing facts are true, correct and complete.” The complaint must be signed and forwarded to The Florida Bar’s office in your area. The address is listed at the end of this brochure.

WILL THE LAWYER KNOW ABOUT MY COMPLAINT?

Yes. The lawyer is normally sent a copy of your allegations and given an opportunity to answer. Many inquiries involve only communication problems and can be solved by getting the attorney and client to discuss the problem.

WHAT HAPPENS AFTER I FILE A COMPLAINT?

All matters reviewed by The Florida Bar are at first considered inquiries and are reviewed by Bar Counsel to determine if The Florida Bar has jurisdiction to investigate the allegations. If The Florida Bar has jurisdiction, the inquiry is considered as a complaint and a formal disciplinary file is opened. When a disciplinary file is opened, Bar Counsel continues the investigation and decides if the complaint should be referred to a grievance committee. There is no right to appeal a determination by bar counsel not to refer a matter to a grievance committee. During the investigation, the lawyer involved may be asked to respond to your allegations and will be asked to send you a copy of the response, if one is requested and given.

The length of each investigation depends upon the facts and circumstances of each case. Therefore, the time from when the complaint is filed until the time of final decision varies from case to case.

WHAT WILL IT COST ME?

No cost or fee is charged for filing an inquiry against a Florida lawyer. All members of The Florida Bar are required to pay dues which cover the cost of lawyer discipline. You may, however, be required to devote some of your time to attending grievance committee hearings and testifying at trial.

The grievance committee members all donate their time as a voluntary public service and all other costs are paid by The Florida Bar. When the Supreme Court of Florida imposes discipline against a lawyer, the lawyer is also ordered to pay the costs involved.

WHAT IS A GRIEVANCE COMMITTEE?

Grievance committees of The Florida Bar are made up of volunteer members in your community, at least one-third of whom are not lawyers. Each of Florida’s 20 judicial circuits has at least one such committee.

The grievance committee investigates complaints with much the same purpose as a grand jury. That is, the committee decides whether there is a probable cause to believe an attorney violated the professional conduct rules imposed by the Supreme Court of Florida on Florida Bar members. There is no right to appeal “no probable cause” determinations by grievance committees.

This committee might also recommend that an attorney receive an admonishment if misconduct is considered minor.

The grievance committee may decide whether a trial before a judge is necessary and may make that decision with or without having a hearing on your complaint. If the attorney involved is present before the grievance committee, you will be given the opportunity to be there.

IS THERE A TRIAL?

If the grievance committee finds probable cause to believe unprofessional conduct occurred, Bar Counsel is directed to file a formal complaint against the accused lawyer with the Supreme Court of Florida. The Supreme Court then appoints a circuit or county court judge as a referee to hold a trial on the complaint.

The referee will hear all relevant evidence, which may include your testimony, that of the accused lawyer and any other witnesses. The referee then makes findings of fact and files a report and recommendations with the Supreme Court of Florida.

The Supreme Court reviews the trial record, referee’s report and recommendations. It alone has final authority to determine guilt and to discipline the lawyer, beyond the issuance of an admonishment.

WHAT CAN I EXPECT?

You can expect that your inquiry will receive The Florida Bar’s prompt and full attention.

You can expect that every attempt will be made to deal with your inquiry in a manner which is fair to both you and the lawyer about whom you inquire.

You can expect to receive written notice of the status of your inquiry as well as notice of the final decision.

The Bar disciplinary system provides an orderly and just way to deal with allegations of misconduct against lawyers. We sincerely hope the problem that gave rise to your allegations will be resolved in a manner you find to be both effective and fair.

WHAT SHOULDN’T I EXPECT?

Don’t expect your allegation to be decided just because of what you claim to have happened. Nor, in fairness to you, can the lawyer about whom you inquire expect the matter to be decided just on the basis of his or her version of what happened. The final decision must depend upon the weight of all available and relevant evidence and testimony.

One should not expect to receive a refund of money paid to your lawyer. Even though refunds sometimes occur, the discipline system was not created as a means to recover your money. For fee disputes, you may request arbitration. For other monies entrusted to your attorney, you may be able to receive money from the Clients’ Security Fund of The Florida Bar.

WHAT KINDS OF DISCIPLINE ARE POSSIBLE?

The discipline of lawyers in Florida can range from an admonishment to suspension from the practice of law for a definite or indefinite period of time, or disbarment. Admonishments can be issued by grievance committees, referees, The Florida Bar Board of Governors or the Supreme Court of Florida.

Sometimes, the Supreme Court allows an attorney to resign — most often permanently — from The Florida Bar when faced with serious disciplinary problems. In effect, a permanent resignation is more severe than disbarment, since the attorney may never again practice law in Florida. In a disbarment, an attorney may be eligible to apply for readmission to the profession after at least five years, although in practice, very few disbarred lawyers apply to be readmitted or are allowed to practice law again.

WHAT IS THE CLIENTS’ SECURITY FUND?

The Florida Bar Clients’ Security Fund was created so that The Florida Bar might repay people who suffer financial losses due to misappropriation of funds by Florida lawyers when the funds were given to the lawyer under an attorney and client relationship.

The Fund’s money comes solely from the dues of Florida Bar members.

The Clients’ Security Fund went into operation on January 1, 1967. Misappropriations, which occurred before January 1, 1967, are not covered by the fund.

The Florida Bar investigates each claim and grants payments from the fund at its discretion according to the circumstances of each case. Payments from the fund are a matter of grace and not of right, and no payment may be made from the fund until a claim is thoroughly investigated. The sum reimbursed may be only a portion of the amount lost or it may be full restitution. There is a $50,000 limit on any claim. Claims for restitution of fees paid when a lawyer has provided no useful services are limited to up to $2,500.

If you are unsure whether you have a claim, you should nevertheless ask for a form. The effort may be worth your while.

A WORD ABOUT CONFIDENTIALITY AND IMMUNITY

The rules of the Supreme Court of Florida require that The Florida Bar treat inquiries and complaints pending with Bar Counsel and grievance committees as confidential. You and witnesses, however, are not prohibited from talking about your problem with the lawyer or revealing that you have made an inquiry with The Florida Bar. You also may give others copies of any documents you give to or receive from The Florida Bar or the lawyer involved. While you are allowed to speak freely about the fact that you have made an inquiry into a lawyer’s conduct and may share with others any documents you receive, you need to understand that there may be consequences that result. If you make your inquiry with the Bar’s disciplinary system and do not make comments to or give documents to persons outside the system you cannot be successfully sued. However, if you do speak to persons outside of the disciplinary system or share documents with those persons, you may be sued. The success of such suits will depend on the facts of each case and cannot be fully discussed in this pamphlet. Once the matter is closed, an admonishment is recommended or probable cause is found, the matter becomes public information and the part of the file defined as the “public record” is available to anyone who wishes to see it. Review of files is available only by appointment. You should contact The Florida Bar to determine when files will be available. A fee for review and/or copies is required.

The Florida Bar cannot pre-review your inquiry to tell you if you have a “good case.”  If you are unsure, you should seek independent legal advice.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

Speaker at St. Thomas School of Law

Attorney Lars K. Soreide, of the law firm Soreide Law Group, PLLC, was once again asked to speak at St. Thomas School of Law in Miami, FL, in March, 2011, to the first year law students.  Mr. Soreide was invited back to speak at St. Thomas University School of Law’s Distinguished Speaker Series to discuss the growing problem of law applicants getting called in for investigative and formal hearings by the Florida Board of Bar Examiners for financial mismanagement. Topics discussed included: credit card debt, bankruptcy, foreclosure, short sales, student loans and over all financial responsibility. Strategies for formally documenting a record of rehabilitation and how to work with your creditors was also discussed. This was followed by a questions and answer session where applicants could ask questions with their specific concerns. For a more detailed explanation they were directed to contact him through his website www.FloridaBarHearing.com.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

LSAC Pre-Enrollment Programs

The Law School Admissions Council, LSAC, has compiled a list of  law schools that offer programs where pre-enrollment programs exist.   These are programs where admission to the law school is contingent upon the successful completion of a pre-enrollment program. Interested students should contact the law school for individual program eligibility and requirements.  This list was in effect as of 4-21-10.  Always check with the school, prior to enrolling in any program.

  • Appalachian School of Law
  • Campbell Law School
  • Charlotte School of Law
  • University of Detroit Mercy School of Law
  • University of District of Columbia David A. Clarke School of Law
  • Faulker University’s Thomas Goode Jones School of Law
  • Florida A&M University College of Law
  • Florida Coastal School of Law
  • Loyola University New Orleans School of Law
  • John Marshall Law School (Chicago)
  • Michigan State University College of Law
  • North Carolina Central University School of Law
  • Nova Southeastern University Shepard Broad Law Center
  • Ohio Northern Law School
  • Oklahoma City University School of Law
  • Phoenix Law School
  • Saint John’s University School of Law
  • Saint Louis University School of Law
  • Saint Mary’s University School of Law
  • Saint Thomas University School of Law (Miami)
  • Texas Southern University Thurgood Marshall School of Law
  • Whittier Law School
  • Widener University School of Law

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

THE FLORIDA SUPREME COURT DISCIPLINES 26 ATTORNEYS

The Florida Bar, the state’s guardian for the integrity of the legal profession, announced on it’s website on March 31, 2011, that the Florida Supreme Court in recent court orders disciplined 26 attorneys, disbarring four and suspending 20. Some attorneys received more than one form of discipline. One attorney was placed on probation; two attorneys were publicly reprimanded. Two attorneys were ordered to pay restitution.

An official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.
The court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than 5 percent of disbarred lawyers seek readmission. 

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

SUPREME COURT DISCIPLINES 27 ATTORNEYS

Summary of orders issued Jan. 4 – Feb. 3, 2011 from The Florida Bar’s website:

The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined 27 attorneys, disbarring seven and suspending 15. Some attorneys received more than one form of discipline. Two attorneys were placed on probation; five attorneys were publicly reprimanded. Two attorneys were ordered to pay restitution.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

FLORIDA’S SUPREME COURT DISCIPLINES 20 ATTORNEYS

The following information was obtained on The Florida Bar’s website.

It was announced on Feb. 1, 2011, that The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined 20 attorneys, disbarring five and suspending 12. Some attorneys received more than one form of discipline. Two attorneys were placed on probation; three attorneys were publicly reprimanded. One attorney was ordered to pay restitution.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at and/or downloaded from The Florida Bar’s website.

The court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission. 

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

SUMMARY OF UNLICENSED PRACTICE OF LAW CASES IN FLORIDA

 

In order to determine whether an activity constitutes the unlicensed practice of law, a two part analysis must be made.  First, it must be determined whether the activity is the practice of law.  The second question is whether the practice is authorized.  If an activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a nonlawyer.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).

The first question which must be addressed in order to determine whether a service or activity constitutes the unlicensed practice of law is to determine whether the activity constitutes the practice of law. In The Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962), judg. vacated on other grounds, 373 U.S. 379 (1963) the Court found that setting forth a broad definition of the practice of law was “nigh onto impossible” and instead developed the following test to determine whether an activity is the practice of law:

…if the giving of (the) advice and performance of (the) 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.

When applying this test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.”  The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980).

Although a codified definition does not exist, there is a large body of case law applying the Sperry test to determine whether a specific activity constitutes the unlicensed practice of law.  Therefore, although one cannot go to one particular source such as a dictionary for a definition, in most instances whether an activity constitutes the unlicensed practice of law can be found in case law.

Once it is determined whether an activity is the practice of law, it must be determined whether the Court or another body has authorized a nonlawyer to engage in the activity.  An activity may be authorized by court rule, case law, an administrative rule or a federal rule or statute.

What follows is a summary of what has been held to constitute the unlicensed practice of law in various circumstances.  Any authorized activities are also noted.  (Please note that the following is only a partial list of unlicensed practice of law cases.  There are over 230 reported unlicensed practice of law cases/opinions in Florida.)

1. ACCOUNTANTS  

Generally, it constitutes the unlicensed practice of law for an accountant, whether or not a CPA, to draft corporate documents.  Although the accountant may not draft the documents, the accountant may sell the forms necessary to establish a corporation and complete the forms with information provided in writing by the individual.  The Florida Bar v. Fuentes, 190 So 2d 748 (Fla. 1966); The Florida Bar v. Town,174 So. 2d 395 (Fla. 1965), The general rule and exception applies to all nonlawyers.

A CPA may represent individuals before the IRS in tax matters.  This practice is specifically authorized by 26 C.F.R. § 601.502 and C.F.R. Part 10.  As the activity is authorized by a federal rule, Florida may not enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 363 U.S. 379 (1963).

2.  ADMINISTRATIVE PRACTICE

In the Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980) the Supreme Court of Florida held that the legislature has the constitutional authorization to oust the Court’s responsibility to protect the public from the unlicensed practice of law in administrative proceedings under Article V, Section 1 of the Florida Constitution, and when it does so any “practice of law” conduct becomes in effect, authorized representation.  In other words, the legislature may authorize nonlawyer representation in administrative proceedings.  The activity is still the practice of law, it is merely authorized.  However, in order to do so, the agency must have a properly promulgated rule and the nonlawyer must follow the dictates of the rule.  The authorization is not blanket authority to appear in any proceeding but must be sought on a case-by-case and agency-by-agency basis.

3.  APPEARANCES PRO SE

The general rule is that an individual may appear pro se and represent themselves in court.  Fla. Stat. § 454.18.  This general rule does not apply to probate proceedings or to corporations.  In a probate proceeding, unless the individual attempting to appear pro se is the sole interested party in the matter, the individual must be represented by a member of The Florida Bar.  Rule 5.030, Probate and Guardianship Rules, Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).  A corporation, as a fictitious entity, may not appear pro se.  Szteinbaum v. Kaes Invecsiones Valores, 476 So. 2d 247 (Fla. 3d DCA 1985).  The general rule that a corporation may not appear pro se does not apply to small claims court as Rule 7.050 of the Small Claims rules specifically allows a corporation to appear pro se.  However, an exception exist for evictions.  In those cases, a corporation may not appear pro se and must be represented by an attorney.  Johnstown Properties Corp. v. Gabriel, 50 Fla. Supp. 138 (Fla Polk Cty. Court 1980).

4.  FEDERAL PRACTICE

Generally speaking, you must be a member of The Florida Bar in order to represent an individual in federal court.  In the area of federal administrative practice, if there is a rule or regulation which allows an attorney admitted in another state or a nonattorney to appear before the agency, Florida cannot enjoin the activity as the unlicensed practice of law.  The Florida Bar v. Sperry, 373 U.S. 379 (1963).  The activity is still the practice of law, it is merely authorized.  Whether the activity is allowed and the extent to which the individual may appear and/or practice will be governed by the rules of that particular agency.  If the agency does not have a rule allowing the practice, any representation would constitute the unlicensed practice of law.  The Fla. Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997).

5.  HOUSE COUNSEL

An attorney licensed in a state other than Florida may work in Florida as Authorized House Counsel for a corporation if the attorney registers pursuant to Chapter 17 of the Rules Regulating The Florida Bar.  The activities which the Authorized House Counsel may perform are limited and do not include going to court.

6.  OUT-OF-STATE ATTORNEYS

An attorney admitted to the practice of law in a state other than Florida may not engage in the general practice of law in Florida or establish a law office in Florida.  An attorney licensed to practice law in a state other than Florida may establish an interstate practice in Florida only if the attorney follows the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).  An attorney admitted to the practice of law in a state other than Florida may not appear in a Florida court as the representative of a party unless the attorney first seeks permission to appear pro hac vice pursuant to Rule 2.510 of the Florida Rules of Judicial Administration.  (It should be noted that this rule does not allow a resident of Florida to appear pro hac vice.)  Rule 4-5.5 of the Rules Regulating the Florida Bar describes the legal services in an out-of-state attorney can provide in Florida on a temporary basis.

7.  BANKRUPTCY

It constitutes the unlicensed practice of law for a nonlawyer to prepare bankruptcy forms for another.  The Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998).  This includes the petition and any necessary schedules.  However, the nonlawyer may sell blank forms necessary for a bankruptcy and complete the forms with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So 2d 1186 (Fla. 1978).  It also constitutes the unlicensed practice of law for a nonlawyer to represent someone in bankruptcy court.  The Florida Bar v. Kaufman, 452 So. 2d 526 (Fla. 1984).

8.  DO-IT-YOURSELF LEGAL KITS AND BOOKS

Generally speaking, a nonlawyer may sell legal forms and kits and complete them with information provided in writing by the customer.  Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978).  If the nonlawyer is using a Supreme Court Approved form, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1(a), Rules Regulating The Florida Bar.

Generally speaking, it does not constitute the unlicensed practice of law for a nonlawyer to sell a book that contains general legal information.  New York County Lawyers Association v Dacey, 287 N.Y.S. 2d 422 (N.Y. 1967); 283 N.Y.S.2d 984 (N.Y. App. 1967).  The book may also contain legal forms.

9.  EVICTIONS

It constitutes the unlicensed practice of law for a nonlawyer to represent a third party in an eviction.  Generally speaking, a nonlawyer may not prepare evictions forms for another unless the nonlawyer is merely typing the information provided in writing by the individual or completing a Supreme Court Approved form with the factual information provided by the individual.  An exception exists for property managers.  In The Fla Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions, 605 So. 2d 867 (Fla.1992), clarified, 627 So. 2d 485 (Fla.1993) the Court held that a property manager may sign and file complaints for evictions and motions for default in uncontested residential evictions for nonpayment of rent as long as the property manager is using a Supreme Court Approved form.

10.  FEDERAL PATENT PRACTICE

Title 37 C.F.R. §§10.1(1), 10.6, and 10.36 allow an attorney admitted in another state or a registered patent agent to prepare and file patent applications before the Office of Patent and Trademark.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry,  373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.  However, the authorization granted by the federal regulations does not extend to actions in state court.  Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (Fla. 4th. DCA 2001).

11.  FEDERAL TAX PRACTICE

Title 31 C.F.R. § 10 allows attorneys admitted in any state and some nonlawyers to represent individuals before the IRS.  Similar regulations exist for Tax Court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

Federal regulations also allow nonlawyers to prepare federal income tax returns for individuals.  Arguably, this activity is also the practice of law and merely authorized.

12.  GENEALOGISTS/HEIR HUNTERS

While “heir hunting” is generally allowed and would not be considered the practice of law, the heir hunter may not solicit heirs to recover part of the estate or file pleadings to do so.  The Florida Bar v. Heller, 247 So. 2d 434 (Fla. 1971).

13.  HOLDING OUT TO PERFORM LEGAL SERVICES

It constitutes the unlicensed practice of law for a nonlawyer to hold himself out as an attorney either expressly or impliedly.  This would include using the title Esquire (The Fla. Bar v. DeToma, 501 So. 2d. 599 (Fla. 1987)), using the initials J.D. if they are being used to solicit legal services (The Florida Bar v Catarcio, 709 So. 2d 96 (Fla 1998)), using “legal” in the name of your business (The Florida Bar v. Miravalle, 761 So. 2d 1049 (Fla. 2000)), using the title “attorney” or “lawyer” (The Florida Bar v Gordon, 661 So. 2d 295 (Fla. 1995)), and using any other title, such as notario publico, which holds the person out as being able to provide legal services (The Florida Bar v. Borges-Caignet, 321 So. 2d 550 (Fla. 1975)).  It also constitutes the unlicensed practice of law for a corporation to advertise to provide legal services even if the services are being performed by a member of The Florida Bar.  The Florida Bar v. Consolidated Business and Legal Forms, 386 So. 2d 797 (Fla. 1980).  This is due to the fact that a corporation may not practice law.

The Court has also held that it constitutes the unlicensed practice of law for a group of nonlawyers to hold themselves out as a panel of judges capable of granting divorces in Florida.  The Florida Bar v. Gentz, 640 So. 2d 1105 (Fla. 1994).

Rule 10-2.1(c) of the Rules Regulating The Florida Bar defines “nonlawyer” as including members of the bars of other states.  Therefore, the general case law regarding holding out applies to out-of-state attorneys as well.  However, if the attorney is part of a properly constituted interstate practice or is engaging in an authorized activity in Florida, the attorney’s title may appear on letterhead and business cards as long as necessary limiting language is also included.  The Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981), The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).

14.  IMMIGRATION

Title 8 C.F.R.  292 permits an attorney admitted in another state to represent individuals before the INS.  This permission does not extend to federal district court.  The activity is the practice of law, it is merely authorized by federal regulation.  Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963) Florida cannot enjoin the activity as the unlicensed practice of law.

This authorization does not generally extend to nonlawyers.  (There are some very limited circumstances in which a nonlawyer may represent someone before INS such as on a one case basis for no fee.)  Nonlawyer representation of another in an immigration matter therefore constitutues the unlicensed practice of law.  The Florida Bar v. Matus, 528 So. 2d 895 (Fla. 1988), The Florida Bar v. Becerra, 661 So. 2d 299 (Fla. 1995), The Florida Bar v. Lopez, 231 So. 2d 819 (Fla. 1970).

15.  INDIVIDUAL REPRESENTATION

Generally speaking, a nonlawyer may not represent another in court.  An out-of-state attorney who wishes to represent someone in a Florida court must seek permission to appear pro hac vice in order to do so.  Rule 2.510 Fla.R.Jud.Admin. A nonlawyer may be able to represent another individual in an administrative proceeding if the agency has a properly promulgated rule allowing the activity.  The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).  On a related note, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to represent an individual in a securities arbitration matter.  The Florida Bar re: Advisory Opinion – Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla.1997).

16.  INSURANCE ADJUSTERS

Florida Statute §626.854 sets forth the definitions and prohibitions on the activities of public adjusters.  Basically, a public adjuster may represent an insured in negotiations with their own insurance company on matters involving property damage.  The public adjuster may not negotiate on matters involving bodily injury or represent the parties in court.  Larson v. Lesser, 106 So 2d 188 (Fla. 1958).

17.  JAILHOUSE LAWYERS

 

There are several constitutional cases from the United States Supreme Court that deal with the issue of legal assistance to inmates.  From an unlicensed practice of law standpoint, the Code of Federal regulations and the Florida Administrative Code allow limited nonlawyer assistance in parole and probation matters.  However, a nonlawyer may not give an inmate legal advice, draft pleadings for the inmate or represent the inmate in court.  The Florida Bar v. Mills, 410 So. 2d 498 (Fla. 1982).

18.  LAW CLERKS/STUDENTS

A law student or law graduate may not practice law unless certified by the Supreme Court of Florida as a Certified Legal Intern pursuant to Chapter 11 of the Rules Regulating The Florida Bar.  If so certified, the law student or law graduate may represent certain individuals in limited circumstances.

19.  MECHANICS LIENS

The Supreme Court of Florida has held that a nonlawyer may prepare the notice to owner and notice to contractor required by the mechanics lien statute.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Notice to Owner and Notice to Contractor, 544 So. 2d 1013 (Fla. 1989).  However, a nonlawyer may not prepare liens or give legal advice regarding the statute.  The Fla. Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996).

20.  PREPARATION OF LEGAL DOCUMENTS

Generally speaking, a nonlawyer may sell forms and complete the form with information provided in writing by the individual.  The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). If the nonlawyer is using a form approved by the Supreme Court of Florida, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form.  Rule 10-2.1 (a), R.Reg.Fla.Bar.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.  This general rule has been applied in a variety of circumstances including the following:

     a.  BANKRUPTCY

Nonlawyers may only type bankruptcy forms from information provided by the individual in writing; they cannot offer legal advice or help select the forms.  In re: Calzadilla, 151 B.R. 622 (Bkrtcy. S. D. Fla. 1993).

     b.  CORPORATE

A nonlawyer may not prepare corporate documents for another.  This includes the articles of incorporation, the corporate charter and related documents.  The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966); The Florida Bar v. Keehley, 190 so. 2d 173 (Fla. 1966).

     c.  DIVORCE

The general rule discussed above applies to the family law area.  The forms contained in the family law rules are considered Supreme Court Approved forms.  The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.  If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.

     d.  INSURANCE DOCUMENTS AND PENSION PLANS

The Supreme Court of Florida has held that a nonlawyer insurance agent may not prepare legal documents, including pension plans.  The Florida Bar v. Turner, 355 So. 2d 766 (Fla. 1978).  However, in the area of pension plans, the Court has held that certain nonlawyers who are authorized to appear before the IRS are allowed to draft certain pension documents, including the plan itself.  The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. 1990).

     e.  PROBATE

The general rule has been applied to the probate area.  The Supreme Court of Florida has held that it constitutes the unlicensed practice of law for a nonlawyer to draft a living trust and related documents for another. The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Living Trusts, 613 So. 2d 426 (Fla. 1992).  The Court also held that a nonlawyer cannot draft a will for a third party.  The Florida Bar v. Larkin, 298 So. 2d 371 (Fla. 1974).  However, a nonlawyer corporate creditor may file a statement of claim in a probate matter.  Summit Pool Supplies v. Price, 461 So. 2d 272 (Fla. 5th. DCA 1985).

     f.  REAL PROPERTY (INCLUDING REAL ESTATE LICENSEES & TITLE INSURANCE        COMPANIES)  

In 1950, the Supreme Court of Florida held that a real estate licensee may prepare the contract for sale of real estate but any other documents must be prepared by a member of The Florida Bar.  Keyes Co. v. Dade County Bar Association, 46 So. 2d 605 (Fla.1950).  The drafting of the contract is considered the practice of law, a non-licensee may not draft the contract.  The Court merely carved out an exception for licensees.

The Court later carved out an exception for title insurance companies.  In The Florida Bar v. McPhee, 195 So. 2d 552 (Fla. 1967) the Court held that a title insurance company may conduct the closing and prepare documents incident to the issuance of title insurance only if the company is actually issuing the title insurance.  Again, the activity is the practice of law, it is just authorized in these limited circumstances to these individuals.

As to others, the Court has held that it constitutes the unlicensed practice of law for a nonlawyer to prepare a warranty deed, quitclaim deed, land trusts, leases and mortgage agreements.  The Florida Bar v. Irizarry, 268 So. 2d 377 (Fla. 1972); The Florida Bar v. Hughes, 697 So. 2d 501 (Fla. 1997); The Florida Bar v. Lister, 662 So. 2d 1241 (Fla. 1995); The Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. 1985)(there are 3 Supreme Court Approved leases which nonlawyers may complete with information provided orally by the individual).  However, an authorized agent may bid at a mortgage judicial foreclosure sale.  Heilman v. Suburban Coastal Co., 506 So. 2d 1088 (Fla. 4th DCA 1987).

21.  SEMINARS ON LEGAL RIGHTS

A nonlawyer may conduct a seminar at which general legal information is given, however, the nonlawyer may not give specific legal advice.  The Florida Bar v. Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968).  Therefore, while the nonlawyer may give general information, the nonlawyer may not answer specific legal questions.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552

THE FLORIDA SUPREME COURT DISCIPLINES EIGHT ATTORNEYS

Summary of orders issued Oct. 5 – Dec. 1, 2010

On The Florida Bar’s website, it was announced that The Florida Bar, the state’s guardian for the integrity of the legal profession, that the Florida Supreme Court in recent court orders disciplined eight attorneys, disbarring one and suspending six. Some attorneys received more than one form of discipline. One attorney was publicly reprimanded. Four attorneys were ordered to pay restitution.

It was noted that as an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles and may be reviewed at The Florida Bar’s website.
These Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam.

This information was obtained from The Florida Bar’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

Florida Lawyers Draw Suspicion in Foreclosure Mess

Recently a Palm Beach Post article by Christine Stapleton and Kimberly Miller stated that young Florida lawyers out of law school and looking for work,  found steady paychecks in burgeoning firms whose business is based on repossessing the American dream.

The article states that more than 260 attorneys work at four of Florida’s largest foreclosure firms, and 48 percent of them have been practicing law for less than three years, according to Florida Bar records obtained by The Palm Beach Post.

With this fall’s allegations of forged foreclosure documents, fraudulent notarizations and questionable affidavits submitted in tens of thousands of foreclosure cases, those nascent lawyers are now under a cloud of suspicion.

Some may face Florida Bar investigations that could end their careers, while homeowner advocates wonder whether the foreclosure crisis would have reached its state of disorder if it weren’t for legions of novice lawyers doing the legwork.

And as the state’s overwhelmed court system sorts through the foreclosure chaos, many of the attorneys who worked for the now deposed law firms have been hired at other large companies doing foreclosure work.

The Palm Beach Post stated that the Atlanta-based McCalla Raymer law firm, which handles foreclosures for mortgage giant Fannie Mae in Georgia, hopes to do the same in Florida. In November, as the firm began setting up shop in Orlando with 10 former attorneys of a diposed Florida firm, disgruntled homeowners in Georgia filed a federal class-action lawsuit against the firm, claiming it used forged documents to take their homes, often while they were in the midst of modifying their loans. This month four other Georgia homeowners – who are representing themselves – have filed similar lawsuits against McCalla Raymer.

The firm initially registered to do business in Florida as McCalla Raymer Florida LLC but dissolved that firm a month later and is now registered to do business in Florida as Stone, McGehee & Silver. The firm, which hired former Fannie Mae associate general counsel and foreclosure expert Susan Reid last month, has plans to expand throughout Florida, advertising for attorneys in Tampa, Fort Lauderdale, Miami and Orlando. While at Fannie Mae, Reid worked with foreclosure attorneys in its retained attorney network, including those from an office that was diposed in Florida.

Still, the distribution of former attorneys from a diposed firm to other firms feels like an injustice to some home­owners in foreclosure.

In sworn statements taken by the state attorney general’s office, two former employees of a diposed Florida firm – a paralegal and a legal assistant – attest to wrongdoing at the firm that included hiding problem files from federal auditors, forging signatures and making up documents as staff struggled to keep up with a mounting volume of foreclosures.

Lack of experience could have led young lawyers to follow their employer’s lead, unaware they may be committing an offense, nonetheless lawyers share a large portion of blame in the foreclosure fracas.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.

FLORIDA’S SUPREME COURT DISCIPLINES 18 ATTORNEYS 11/30/10

It was announced November 30, 2010 by The Florida Bar, the state’s guardian for the integrity of the legal profession, that the Florida Supreme Court in recent court orders has disciplined 18 attorneys, disbarring eight and suspending seven. Some attorneys received more than one form of discipline. Two attorneys were publicly reprimanded and three were placed on probation. One attorney was also ordered to pay restitution.

The Florida Bar, an official arm of the Florida Supreme Court, and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the 90,000-plus lawyers admitted to practice law in Florida.

The Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. The disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that rejects many who apply. It includes a rigorous background check and retaking the bar exam. Historically, fewer than five percent of disbarred lawyers seek readmission.

This information was obtained from The Florida Bar’s website.

The Soreide Law Group, PLLC,  represents those seeking admittance to the Florida Bar, and existing lawyers, for both investigative hearings and formal hearings in front of the Florida Bar. For more information about our services please visit: www.floridabarhearing.com or call (888) 760-6552.