Tag Archive for: Florida Bar

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.

BAR APPLICANTS IN FINANCIAL TROUBLE

FINANCES CAN BECOME PROBLEMS FOR BAR APPLICANTS

          With increasing frequency I am representing more and more applicants in Florida Bar Investigative Hearings and Formal Hearings before the Florida Board of Bar Examiners with financial problems. These problems range from home foreclosure to unpaid credit card debt.  Applicants ask all the time,”How do I prepare for this hearing when I haven’t done anything to resolve any of these issues?”  Well, the fact of the matter is there are many things you can do. For instance,  it is up to the Florida Bar Applicant to establish a record of rehabilitation at the Investigative or Formal Hearing. One way that I advise my clients to establish financial rehabilitation, is to take a financial educational course. There are several that I find to be particularly helpful and accepted by the Board as establishing financial rehabilitation.  The classes have you set out a plan, which the Board appreciates, that shows how you are going to get out of debt and stay out of debt. If you are in the financial position to pay off debt and close out accounts, then I strongly suggest you do so and submit a newly amended financial affidavit reflecting your new plan.

            The Florida Board of Bar Examiners’ chief concern is that an Applicant isn’t going to turn their back on their creditors. Even if you pay $20 a month or any nominal amount you can afford toward your debt, it is more beneficial to you at your Bar Hearing because this acknowledges you owe the money and are working toward honoring your debts and not turning your back on your creditors. Why are they so concerned you may ask? Well, the answer to that question is simple, trust accounts. You will manage other people’s money as an attorney. If you can’t manage your own finances, don’t expect the Board to allow you to manage others.

            What if my home is in foreclosure or I am delinquent in my mortgage? The popular philosophy on this matter is completely opposite of that of the Florida Bar. Many people feel that in most instances it is financially irresponsible to continue to pay on a mortgage when the value of the house is underwater. The bank took a risk lending on the property just as you took a risk borrowing the money. It was an honest business transaction, with you on the one hand trying to make an investment in a property, and the bank on the other trying to make interest.  However, the Bar does not adopt this outlook and that is the only outlook you should be concerned with. Again, it goes straight to the core of financial responsibility. If you borrow money, you pay it back. If you can’t work out a new deal, then you at least need to stay in constant communication with your creditors and pay what you can. If you can’t pay anything, short sale the property. Also, put everything in writing, send letters so you have documented evidence at your hearing of this communication and work out plan.

            Do everything in your power to resolve all the financial issues before the hearing. Financial irresponsibility is one of the hardest bar hearings to defend because it is a problem today. If you committed a crime years ago, it is actually easier to defend because you have time on your side and it was an isolated incident, whereas with financial problems, as you sit before the Florida Board of Bar Examiners, that problem is still on going. For more advice on Florida Bar Investigative and Formal Hearings you should speak with a lawyer experienced with these types of issues. For a free consultation as to how to prepare for your Florida Bar Investigative Hearing or Formal hearing call, Lars K. Soreide, Esq., with the Soreide Law Group, PLLC. We represent applicants throughout the state of Florida. Our main office is located in downtown Fort Lauderdale. www.FloridaBarHearing.com (888) 760-6552.

The Disciplinary Actions for Substance-Abusing Attorneys Vary Widely

In the National Law Journal, Leigh Jones writes that an Indiana lawyer shows up at the courthouse drunk and gets into a car accident. His license is suspended, but stayed, for 180 days. A New Hampshire attorney and admitted alcoholic takes on what turns out to be a meritless case and conceals the defeat from clients. He is disbarred.

Also, an Iowa attorney and self-described alcohol abuser involved in a series of disciplinary actions, including taking a client’s money and abandoning a divorce case, gets a license suspension. He can apply to renew it in six months. Meanwhile, a Florida attorney who’s been sober and in a 12-step program since his arrest on drug charges in 2004 is disbarred for the six-year-old offense.

Each of these four cases involved substance abuse — and each had a very different outcome. The decisions, all from the past two years, show how broad the inconsistencies are in the way courts dole out punishment for substance-abusing attorneys. Whether because of uneven precedent, murky ethics rules or a hard-line stance against recognizing addiction as a mitigating factor in misconduct, courts can give attorneys little more than a slap on the wrist in some cases. In others, careers are finished.

In the Iowa case, for example, the court found that attorney Ross Hauser, who had practiced for 23 years, abandoned his client’s divorce action and failed to respond to disciplinary complaints. Records indicated that he admitted having a history of alcohol abuse. The Iowa Supreme Court in May, while recognizing the attorney’s multiple previous discipline problems, suspended his license with a chance for reinstatement after six months. The court rejected a recommendation by the state’s grievance commission that he provide ongoing evidence that substance abuse was not affecting his practice. The court wrote that it did not have a system in place to do so.

“There are concerns that attorneys are not being dealt with, one, in an enlightened manner and, two, consistently,” said Judge Robert Childers, chairman of the American Bar Association’s Commission on Lawyer Assistance Programs. He sits on the Tennessee Circuit Court’s 30th Judicial District, based in Memphis.

In New Hampshire, William Conner took on a case representing a couple suing a contractor over the construction of their home. Court records said the lawyer, who admitted that he was an alcoholic and had a previous public censure, failed to pursue the case, which was later determined meritless. The court said he also hid from the couple that the case had been dismissed. The court ruled that, although alcoholism can be a mitigating factor, disbarment was the only appropriate punishment for him.

But, Indiana attorney Peter Katic appeared in court with a blood-alcohol content more than twice the legal limit and was involved in a car accident while intoxicated, according to court records. The Indiana Supreme Court last year suspended Katic, who had previously served as a judge and had been disciplined twice for judicial misconduct, for six months. It stayed the suspension provided that he meet the monitoring requirements of the lawyer assistance program.

Bill Weigel, president of the National Organization of Bar Counsel, recognizes the inconsistencies in how disciplinary bodies and courts deal with substance-abuse problems. Because the cases are so “fact specific,” consistency can be difficult to achieve, he said. “These cases are so situational.”

Richard Baron would like to think that courts have become more enlightened about attorney addiction, but he’s not convinced. For 25 years, Baron has represented attorneys, most with substance-abuse issues, in disciplinary actions. In August, he had one of the biggest surprises of his career. Although his client, Daniel Noah Liberman, had been drug- and alcohol-free for six years, the Florida Supreme Court disbarred him following his guilty plea to a 2004 drug trafficking charge. The court on Aug. 26 rejected a referee’s recommendation that Liberman receive a three-year suspension. He had no previous arrests or discipline problems. The court noted that he “had an illness; he was drug addict.”

Liberman, who had been supplying friends with small amounts of metham­phetamine and Ecstasy, was asked by a friend, who unbeknownst to Liberman had been arrested and was working as an informant, to supply him with Ecstasy for a party. The amount Liberman supplied met the limit for a trafficking charge.

In a dissent, Florida Supreme Court Justice Barbara Pariente wrote that Liberman had accepted responsibility for his conduct, had gone into a rehabilitation program immediately following his arrest and always had tested negative on random drug tests. He was a supervising tutor for children at a charity serving poor and homeless people. The justice wrote that he had continued to work as a paralegal and was “a productive member of society.” She noted that there was no evidence that Liberman’s conduct had harmed any clients.

Even so, the majority concluded that only disbarment could “measure up to the gravity of a conviction for illegal drug trafficking.” The majority also determined that the mitigating circumstances were insufficient to warrant anything less than disbarment. Liberman did not respond to requests for an interview. Baron said the decision demonstrates a “hard right turn” by the court and ignores precedent in a strikingly similar case. “They were out to punish him,” Baron said.

PREVENTION VS. PUNISHMENT

There are about 45 lawyers assistance programs across the country, most of which work directly with bar counsel and courts to provide confidential support and facilitate addiction recovery through drug testing, 12-step programs and mental health assistance. In many states, they provide recovery “contracts” with attorneys, who agree to submit to monitoring.

John Clegg wishes he’d never gotten involved with a lawyers assistance program. The former partner at McGlinchey Stafford got help from the Louisiana program in 2006 for a cocaine addiction after firm leaders confronted him about his erratic behavior. His billing had become inconsistent, he was looking disheveled at work and he had behaved aggressively during a firm-hosted golf tournament, where he told an off-color joke that offended attendees.

Firm leaders and lawyers assistance workers held an intervention for Clegg, who admitted that he had used crack cocaine. He went to 90-day in-patient treatment, and once he got out, he returned to work at the firm under a five-year “contract” with the assistance program.

With his approval, program workers monitored his recovery and — because he had waived the program’s duty of confidentiality — they communicated with the law firm about his recovery progress. When he twice tested positive for drug use, however, the firm, compelled by its duty to its clients, alerted disciplinary authorities.

In July, the Louisiana Supreme Court ruled that, although assistance program volunteers and employees had a duty of confidentiality that participants can waive, that duty did not extend to law firms themselves. The court suspended Clegg for a year and a day and deferred all but six months on the condition that he continue treatment through the lawyers assistance program.

Clegg, who could not be reached for comment for this story, said at the time the decision was issued that he had planned to seek rehabilitation on his own before the intervention but decided to use the Louisiana program once co-workers confronted him. He made the wrong decision about getting help with the Louisiana program, he said. The ruling, he believes, served as a deterrent to getting help. “You’re just setting yourself up for discipline,” he said. “The only charges against me were because I was a [legal assistance program] participant.”

ABA RULES

A way to bring consistency to disciplinary actions involving substance abuse may be through the American Bar Association’s Model Rules of Professional Conduct. Last year, the ABA adopted a rule that substance abuse and mental health professionals hailed as a victory.

The rule allows for the conditional admission to practice for law graduates who have experienced chemical dependency. It provides that applicants who otherwise meet requirements but could have been prohibited from admission because of past drug or alcohol problems can practice if they demonstrate rehabilitation.

Four states are considering adopting the rule. Eighteen already have similar provisions in place. The purpose of the change is to prevent applicants seeking admission to the bar from keeping their addiction and recovery a secret. Otherwise qualified applicants often do not disclose their problems for fear they will prohibit admission, said Childers, chairman of the ABA’s Commission on Lawyer Assistance Programs. Childers pushed for the ABA’s new rule. “It encourages students to get help early on,” he said.

The new rule is not about coddling lawyers, he said. “This really is aimed a protecting the public. There are lawyers out there getting licensed with no conditions, no monitoring in place.”

Childers said he is aware of the Liber­man disbarment in Florida and is troubled by it. The commission will hold its annual conference in October. He expects much discussion about the Liberman case. “I’m hoping it’s an aberration,” he said.

Creating a rule to bring about consistency for existing attorneys is more difficult than dealing with attorneys seeking admission, Childers said. The facts of each case vary significantly, including whether there are prior sanctions, the number of misconduct claims, the degree of client harm and whether laws were broken. The key, he said, is to bring all parties to the table, including bar counsel, judges and health care professionals, and to work through the ABA commission’s “protocol” to create a proposal.

“I’d like to see absolute uniformity, but the facts of every case are different,” he said. “That’s why we have judges.”

This article is from the National Law Journal.

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 21 ATTORNEYS 8/31/10

It was announced on Aug. 31, 2010, on The Florida Bar’s websited 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 21 attorneys, disbarring seven and suspending 11. Some attorneys received more than one form of discipline. Three attorneys were publicly reprimanded and one was placed on probation. Two were ordered to pay restitution.

As an official agency 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 88,000-plus lawyers admitted to practice law in Florida. Since Aug. 1, 2007, case files have been posted to attorneys’ individual Florida Bar profiles.

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.

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 Paralegals ask to be Bar Licensed and Regulated

Gary Blankenship wrote in his article for The Florida Bar’s, The Florida Bar News, that as part of the required three-year review of the Bar’s voluntary Florida Registered Paralegal program, the Bar is looking into the request by some paralegals that they be licensed and regulated by the Bar or the Supreme Court.

It was announced that The Bar Board of Governors, at its July 23 meeting, approved a recommendation from the Program Evaluation Committee to set up a nine-member committee to examine regulating paralegals.

“That program [FRP] is up for review right now. But the registered paralegals have requested that we look into requiring that they be regulated in some form or fashion, and their request specifically is that they be regulated by The Florida Bar or the Florida Supreme Court,” said board member Greg Coleman, chair of the Program Evaluation Committee, which will review the registered paralegal program.

Coleman noted that several years ago, paralegals went to the Legislature to request mandatory regulation. That measure died when the Bar agreed to study the issue, which led to the registered paralegal program.

“This time they came to us first. We had quite a long discussion,” Coleman said. “We think it is worthwhile exploring and think it’s something that should be discussed and vetted.”

It was announced that the new committee will include three members from the PEC subcommittee, three paralegals, and three others chosen by Bar President Mayanne Downs.

“The [PEC] motion was to have this committee appointed to explore this issue of paralegal regulation and anything else the president wants to throw into the mix,” Coleman said. “There’s a real threshold question on whether the Supreme Court can regulate paralegals, and that will be looked at.”

Notably, the board approved the recommendation by a voice vote.

Mark Workman, president of the Florida Alliance of Paralegal Associations, said regulation would protect the public by helping to crack down on unsupervised paralegals who do unauthorized legal work and also help in “setting educational standards, ethical guidelines and to enhance the public’s perception of who we are and what we can and cannot do.”

Workman also said, “We want to have a valid say in our direction . . . in the direction the paralegal profession goes.”

Workman added that his organization performed a survey of paralegals and the preliminary results showed 95 percent felt the $150, which is paid annually to the Bar by those participating in the Florida Registered Paralegal program, should be spent exclusively on matters to help and advance paralegals.

Ninety percent said paralegal representatives on the Bar’s FRP Committee should be elected by paralegals rather than appointed by the Bar; 87 percent said paralegals should have a voice in their profession, he said. Another 79 percent favor mandatory regulation of paralegals, but only 50 percent thought the Bar’s existing FRP program should be mandatory.

“We do want more control over our profession,” Workman said. “We believe that it is through the Supreme Court that we should be regulated; it needs to stem from the Supreme Court and not directly from The Florida Bar.”

Johnna Phillips, a former president of the Paralegal Association of Florida and a member of the Bar committee that came up with the current FRP program, said mandatory regulation is a logical step and not necessarily a major change from the current program.

It could be as simple as requiring that anyone using or given the title paralegal meet the education and testing requirements of the FRP program. That includes passing one of two nationally recognized paralegal certification exams.

It would also abolish the current grandfather clause, due to expire in another year, of the FRP program, she said.

“We would want something that is very similar to the provisions of the FRP program without the grandfathering,” Phillips said. “Candidates would have to meet the credentials of the FRP program at the time the sunset goes away. There would be a mandatory education requirement for those who call themselves paralegals.”

Paralegals wanted a mandatory scheme when the FRP program was set up, and accepted that as a first step, she said.

“I think mandatory would be the next reasonable step in the process,” Phillips said. “There are a whole host of other categories inside the legal team; legal secretaries and legal assistants are certainly part of the legal team. Our time is being billed out and clients should have some sense of assurance when they’re seeing time billed for a paralegal; it is truly someone who is a paralegal.”

This article appeared on 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.