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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Florida Legal Ethics

V. LAW FIRMS AND ASSOCIATIONS

5.1   Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary:

5.1:101      Model Rule Comparison

FL Rule 4-5.1 is identical to MR 5.1.

5.1:102      Model Code Comparison

The Model Code has no counterpart to FL Rule 4-5.1.

5.1:200   Duty of Partners to Monitor Compliance with Professional Rules

Primary Florida References: FL Rule 4-5.1(a)
Background References: ABA Model Rule 5.1(a), Other Jurisdictions
Commentary: ABA/BNA § 91:203, ALI-LGL § 4, Wolfram § 16.2

[The discussion of this topic has not yet been written.]

5.1:300   Monitoring Duty of Supervising Lawyer

Primary Florida References: FL Rule 4-5.1(b)
Background References: ABA Model Rule 5.1(b), Other Jurisdictions
Commentary: ABA/BNA § 91:203, ALI-LGL § 11, Wolfram § 16.2

In Florida Bar v. Nowacki, 697 So. 2d 828 (Fla. 1997), the Court found that a lawyer had violated rule 4-5.1 by the "wholesale delegation of her caseload to a new associate." The lawyer was undergoing treatment for breast cancer and had hired a paralegal and associates to whom she delegated the day-to-day running of her office. The lawyer was available to her staff and clients only for emergencies.

5.1:400   Failing to Rectify the Misconduct of a Subordinate Lawyer

Primary Florida References: FL Rule 4-5.1(c)
Background References: ABA Model Rule 5.1(c), Other Jurisdictions
Commentary: ABA/BNA § 91:203, ALI-LGL §4, 5, Wolfram § 16.2

[The discussion of this topic has not yet been written.]

5.1:500   Vicarious Liability of Partners

Primary Florida References: FL Rule 4-5.1
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary: ABA/BNA § 91:203, ALI-LGL § 58

[The discussion of this topic has not yet been written.]

5.2   Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.2
Background References: ABA Model Rule 5.2, Other Jurisdictions
Commentary:

5.2:101      Model Rule Comparison

FL Rule 4-5.2 is identical to MR 5.2.

5.2:102      Model Code Comparison

The Model Code contains no counterpart to FL Rule 4-5.2.

5.2:200   Independent Responsibility of a Subordinate Lawyer

Primary Florida References: FL Rule 4-5.2(a)
Background References: ABA Model Rule 5.2(a), Other Jurisdictions
Commentary: ABA/BNA § 91:204, ALI-LGL § 5, Wolfram § 16.2

There are no Florida cases or ethics opinions regarding this rule.

5.2:300   Reliance on a Supervisor's Resolution of Arguable Ethical Issues

Primary Florida References: FL Rule 4-5.2(b)
Background References: ABA Model Rule 5.2(b), Other Jurisdictions
Commentary: ABA/BNA § 91:207, ALI-LGL § 5, Wolfram § 16.2

There are no Florida cases or ethics opinions regarding this rule.

5.3   Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.3
Background References: ABA Model Rule 5.3, Other Jurisdictions
Commentary:

5.3:101      Model Rule Comparison

FL Rule 4-5.3 is identical to MR 5.3.

5.3:102      Model Code Comparison

DR 4-101(D) provides that a lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client.

5.3:200   Duty to Establish Safeguards

Primary Florida References: FL Rule 4-5.3(a)
Background References: ABA Model Rule 5.3(a), Other Jurisdictions
Commentary: ABA/BNA § 91:205, ALI-LGL §§ 4, 5, Wolfram § 16.3

In Florida Bar v. McAtee, 601 So. 2d 1199 (Fla. 1992), a lawyer was found to have violated Rule 4-5.3 where an employee of the lawyer's firm had stolen trust money by not depositing all of the funds that had been received, had stolen money from accounts maintained by the lawyer as a bankruptcy trustee, and caused other shortages in the trust account by depositing trust funds to the office account or making late deposits. There was no indication in the opinion that the lawyer had any knowledge of the employee thefts until after the fact, so presumably the basis for the finding of misconduct lies in the lawyer's failure to establish adequate safeguards to ensure proper handling of trust account funds.

5.3:300   Duty to Control Nonlawyer Assistants

Primary Florida References: FL Rule 4-5.3(b)
Background References: ABA Model Rule 5.3(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3

In Florida Bar v. Lawless, 640 So. 2d 1098 (Fla. 1994), a lawyer was found to have violated Rule 4-5.3 by failing to adequately supervise a paralegal. In Florida Bar v. Sheppard, 529 So. 2d 1101 (Fla. 1988), a lawyer was found to have violated Rule 4-5.3(b) by permitting a nonlawyer to sign correspondence which did not disclose her nonlawyer status.

5.3:400   Responsibility for Misconduct of Nonlawyer Assistants

Primary Florida References: FL Rule 4-5.3(c)
Background References: ABA Model Rule 5.3(c), Other Jurisdictions
Commentary: ABA/BNA § 91:205, ALI-LGL §§ 4, 5, Wolfram § 16.3

In Florida Bar v. Flowers, 672 So. 2d 526 (Fla. 1996), a lawyer was found to have violated Rule 4-5.3(c) by ratifying the misconduct of a nonlawyer associated with him. The problem arose because the lawyer had a nonlawyer tenant (an immigration consultant) and allowed a situation to exist whereby individuals seeking immigration assistance meeting with the consultant could reasonably believe that they were in fact being represented by the lawyer. The consultant's office was accessible only after entering the front door marked "Law Offices of Ralph L. Flowers," after entering into a reception area staffed by Flowers' secretary and entering through an unmarked door in an alcove to a hallway leading to the consultant's office, marked only by a faded stick-on letter "O." There was no effort made to distinguish the lawyer's office from that of his tenant.

5.4   Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.4
Background References: ABA Model Rule 5.4, Other Jurisdictions
Commentary:

5.4:101      Model Rule Comparison

FL Rule 4-5.4(a)(2) permits a lawyer who undertakes to complete unfinished legal business of a deceased lawyer to pay to the estate of the deceased lawyer the proportion of the compensation representing the services rendered by the deceased lawyer. FL Rule 4-5.4(a)(4) allows payment of bonuses to nonlawyer employees, provided such payment is not based on generating clients or business and is not calculated as a percentage of legal fees received by the lawyer or law firm. FL Rule 4-5.4(e) omits the language from MR 5.4(d) that forbids a lawyer to practice in the form of a professional corporation or association if a nonlawyer is a corporate director or officer thereof. Effective July 1, 1996, FL Rule 4-5.4(e) was amended to permit the practice of law in the form of a professional limited liability company or registered limited liability partnership, in conformance to amendments to FL Rule 4-8.6 and 1995 legislation recognizing the LLP form.

5.4:102      Model Code Comparison

DR 3-102(A)(1) & (2) are virtually identical to FL Rule 4-5.4(a)(1) & (2). DR 3-102(A)(3) is similar to FL Rule 4-5.4(b). DR 5-107(B) is identical to FL Rule 4-5.4(d). DR 5-107(C) is similar to FL Rule 4-5.4(e).

5.4:200   Sharing Fees with a Nonlawyer

Primary Florida References: FL Rule 4-5.4(a)
Background References: ABA Model Rule 5.4(a), Other Jurisdictions
Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

In Florida Bar v. Beach, 675 So. 2d 106 (Fla. 1996), a lawyer was found to have violated Rule 4-5.4 when he provided legal advice to a client through a paralegal service. The paralegal service collected a fee from the client for preparation of paperwork, research and attorney time and then paid a portion of the fee to the lawyer. The rule also prohibits paying a percentage of fees earned to investigators and legal assistants. Florida Bar v. Rue, 643 So. 2d 1080 (Fla. 1994).

5.4:300   Forming a Partnership with Nonlawyers

Primary Florida References: FL Rule 4-5.4(c)
Background References: ABA Model Rule 5.4(b), Other Jurisdictions
Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5

[The discussion of this topic has not yet been written.]

5.4:400   Third Party Interference with a Lawyer's Professional Judgment

Primary Florida References: FL Rule 4-5.4(d)
Background References: ABA Model Rule 5.4(c), Other Jurisdictions
Commentary: ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8

[The discussion of this topic has not yet been written.]

5.4:500   Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

Primary Florida References: FL Rule 4-5.4(e)
Background References: ABA Model Rule 5.4(d), Other Jurisdictions
Commentary: ABA/BNA § 91:413, ALI-LGL § 60, Wolfram § 16.4, 16.5

[The discussion of this topic has not yet been written.]

5.4:510      Group Legal Services

[The discussion of this topic has not yet been written.]

5.4:520      Nonprofit Organizations Delivering Legal Services

[The discussion of this topic has not yet been written.]

5.5   Rule 5.5 Unauthorized Practice of Law

5.5:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.5
Background References: ABA Model Rule 5.5, Other Jurisdictions
Commentary:

5.5:101      Model Rule Comparison

FL Rule 4-5.5 is virtually identical to MR 5.5. However, FL Rule 3-6.1 permits a lawyer, law firm, or professional association to employ lawyers who have been suspended, disbarred, or have resigned from the bar to perform such services as may be ethically performed by other lay persons employed in attorneys' offices, under specified conditions. In 1994, the Florida Supreme Court approved Chapter 17, the Authorized House Counsel Rule, under which lawyers licensed in other jurisdictions are permitted to practice in Florida while exclusively employed by a business corporation, without taking the bar examination in Florida.

5.5:102      Model Code Comparison

DR 3-101(B) corresponds to FL Rule 4-5.5(a). DR 3-101(A) corresponds to FL Rule 4-5.5(b).

5.5:200   Engaging in Unauthorized Practice

Primary Florida References: FL Rule 4-5.5(a), 3-3.1, Fla. Stat. § 454.23, FL Rules Chapter 10
Background References: ABA Model Rule 5.5(a), Other Jurisdictions
Commentary: ABA/BNA § 21:8001, Wolfram § 15.1

5.5:210      Practice of Law by Nonlawyers

Regulation of the unlicensed practice of law involves the tension between the need to provide broad access to courts and the need to protect the public from incompetent legal representation. See Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. 1980) ("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.")

Applicable Rules

Regulations against the unlicensed practice of law apply to lay persons. They also apply to attorneys in two ways: (1) attorneys are guilty of unlicensed practice of law when they practice during suspension or after resignation or disbarment. Florida Bar v. Weisser, 721 So. 2d 1142 (Fla. 1998); Florida Bar v. Neely, 675 So. 2d 592 (Fla. 1996); and (2) lawyers may not assist nonlawyers in the unlicensed practice of law. FL Rule 4-5.5.

Standing to enforce rules against unlicensed practice of law

The Florida Supreme Court's exclusive jurisdiction over the discipline of lawyers carries with it the power to prevent the unlicensed practice of law. Florida Bar v. Smania, 701 So. 2d 835, 836 n.1 (Fla. 1997); FL Rule 10-1.1. Only the Florida Bar, as the official arm of the Supreme Court, has standing to enforce the rules relating to the unlicensed practice of law. See FL Rule 10-1.2. Neither an attorney, nor a local bar association, nor a private litigant has standing to bring an action to enjoin the unlicensed practice of law. Heilman v. Suburban Coastal Corp., 506 So. 2d 1088, 1089 (Fla. 4th DCA 1987); Sigma Fin. Corp. v. Investment Loss Recovery Servs. Inc., 673 So. 2d 572 (Fla. 4th DCA 1996); Dade-Commonwealth Title Ins. Co. v. North Dade Bar Ass'n, 152 So. 2d 723 (Fla. 1963).

Procedures for Prosecution of UPL

All complaints alleging unlicensed practice of law must be signed, in writing, and under oath. FL Rule 10-5.1(a). The complaint is reviewed by UPL staff counsel who may conduct a preliminary investigation, for a determination of whether the alleged conduct constitutes the unlicensed practice of law. FL Rule 10-5.1(b). If UPL staff counsel declines to pursue the complaint, the complainant must be notified of the reasons for the decision. Such a decision by UPL staff counsel does not preclude further action by the Florida Bar. FL Rule 10-5.1(b). UPL staff counsel may refer the matter to the appropriate circuit UPL committee for further investigation. FL Rule 10-5.1(c). UPL committee proceedings may be informal and the committees are not bound by the rules of evidence. FL Rule 10-6.1(a). The UPL committee can subpoena witnesses. FL Rule 10-6.2. The UPL committee can (1) close the case; (2) accept a cease and desist order; or (3) recommend litigation. FL Rule 10-6.3(a). Final approval of the standing committee and a designated reviewer is required before litigation.

The Florida Bar may petition the Florida Supreme Court for an injunction. FL Rule 10-7.1(a) The Supreme Court may issue an order to show cause why the petition should not be granted. FL Rule 10-7.1(b)(2). If the respondent files an answer which raises issues of material fact, the Supreme Court may refer the matter to a referee. FL Rule 10-7.1(b)(6). The referee must file a written report containing findings of fact and conclusions of law. FL Rule 10-7.1(d)(1). The Supreme Court must review the referee's report and determine whether the respondent engaged in the unlicensed practice of law, whether an injunction is necessary, whether costs should be awarded and if further relief should be granted. FL Rule 10-7.1(e). The Supreme Court has the authority to issue an injunction at any stage of the proceedings. FL Rule 10-7.1(f).

The rules also authorize proceedings for indirect criminal contempt pursuant to a sworn petition by the president of the Florida Bar or the chair of the standing committee. FL Rule 10-7.2(a). The court may issue an order to show cause and refer the matter to a referee. FL Rule 10-7.2(a), (c). Punishment for indirect criminal contempt is a fine of up to $500.00 and/or imprisonment of up to 5 months. The Supreme Court may approve, modify or reject the referee's finding of guilty and recommended sentence. FL Rule 10-7.2(d).

What is the practice of law?

The general rule is that giving legal advice and performing services which require legal skill and a knowledge of the law greater than that possessed by the average citizen is the practice of law. State ex rel. The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), overruled on other grounds, Sperry v. Florida, 373 U.S. 379 (1963).

Some cases seem obvious, for example, filing pleadings to assist someone in disputing a traffic ticket, Florida Bar v. Eidson, 703 So. 2d 442 (Fla. 1997), or operating a "law office" in the county law library, as in Florida Bar v. Leslie, 664 So. 2d 961, 961 (Fla. 1995).

Other cases are more difficult. In Florida Bar v. Florida Serv. Bureau, Inc., 581 So. 2d 900 (1991), the court held that it was not unlicensed practice of law for the defendant nonlawyers to give assistance to landlords seeking to evict delinquent tenants, limited to telling what the eviction procedure entails. The court ruled that the respondents were not providing "legal advice" because the information provided was limited to what anyone could have discerned from reading the eviction statute. Id. at 901. The court noted that when legal advice or the filing of a complaint was necessary, the respondents referred the landlords to an independent attorney. Id. Respondents avoided the following activities which had been specifically prohibited in Florida Bar v. Mickens, 505 So. 2d 1319, 1321 (Fla. 1987): (1) filing complaints for residential landlords; (2) counseling landlords about legal matters concerning evictions; (3) completing eviction forms with information supplied orally by the landlord; and (4) appearing in any judicial proceeding.

Gathering the necessary information for a living trust is not the practice of law and may be performed by nonlawyers. Florida Bar re: Advisory Opinion—Nonlawyer Preparation of Living Trusts, 613 So. 2d 426, 427 (Fla. 1992). However, going beyond the mere gathering of information, to answering specific legal questions, determining whether a client needs a living trust, assembling, drafting and executing the trust documents, and funding the living trust, is the practice of law and may not be performed by nonlawyers. Florida Bar v. American Senior Citizens Alliance, Inc., 689 So. 2d 255, 259 (Fla. 1997).

The Supreme Court has stated that the definition of the practice of law "must necessarily change with the ever changing business and social order." Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191-92 (Fla. 1978). The following are considered the practice of law:

(1) preparing legal documents for others. Florida Bar v. Lister, 662 So. 2d 1241, 1242 (Fla. 1995). This includes preparation of a deed, Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. 1985), and drafting articles of incorporation. Florida Bar v. Mills, 398 So. 2d 1368 (Fla. 1981).

(2) accepting or soliciting attorneys' fees. Florida Bar v. Lister, 662 So. 2d 1241 (Fla. 1995).

(3) appearing as a legal representative of someone else. Id.

(4) using a title such as "lawyer," "attorney," "attorney at law," "esquire," "counselor," or "counsel." Florida Bar v. Gordon, 661 So. 2d 295, 296 (Fla. 1995).

(5) sending correspondence as the representative of a client regarding legal matters. Id. at 296.

(6) giving advice regarding the filling out of legal forms. Florida Bar v. Becerra, 661 So. 2d 299, 299 (Fla. 1995).

(7) threatening to file a lawsuit. Florida Bar v. York, 689 So. 2d 1037, 1039 (Fla. 1996).

(8) pretending to be an attorney, even without filing any pleadings or making any court appearances. Florida Bar v. Florida First Fin. Group, Inc., 695 So. 2d 275 (Fla. 1997).

(9) participating in a deposition as the representative of another. State v. Foster, 674 So. 2d 747 (Fla. 1996).

(10) giving advice about rights, duties and obligations or the consequences of certain actions or inaction under Florida or federal law. Florida Bar v. Florida First Fin. Group, Inc., 695 So. 2d 275, 277 (Fla. 1997).

(11) giving advice regarding appellate procedure. Florida Bar v. Mills, 410 So. 2d 498 (Fla. 1982).

(12) representing a client in a securities arbitration. Florida Bar re Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178, 1181 (Fla. 1997).

Receipt of compensation is not a necessary component of the practice of law. Florida Bar v. Smania, 701 So. 2d 835 (Fla. 1997); Florida Bar v. Greene, 589 So. 2d 281 (Fla 1991); but see Florida Bar v. Florida Serv. Bureau, Inc., 581 So. 2d 900, 901 (Fla. 1991) (in finding no unlicensed practice of law, court stated that respondent had not charged for its services).

Practice of Law by Nonlawyers

As the Florida Supreme Court has noted, "The unauthorized practice of law and the practice of law by nonlawyers are not synonymous." Nonlawyers are authorized to practice law in the following instances:

(1) Pro Se representation: In Florida all persons have the right to proceed pro se. Florida Statutes § 454.18 provides: "any person, whether an attorney or not . . . may conduct his or her own cause in any court of this state."

A corporation, however, cannot appear pro se through nonlawyer employees, officers or shareholders, Richter v. Higdon Homes, Inc., 544 So. 2d 300 (Fla. 1st DCA 1989); Punta Gorda Pines Dev. Inc. v. Slack Excavating, Inc., 468 So. 2d 438 (Fla. 2d DCA 1985); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247 (Fla. 3d DCA 1985); Hub Fin. Corp. v. Olmetti, 465 So. 2d 618 (Fla. 4th DCA 1985); Quinn v. Housing Auth. of Orlando, 385 So. 2d 1167 (Fla. 5th DCA 1980), even through its sole stockholder, Southeastern Assocs., Inc. v. First Ga. Bank, 362 So. 2d 967 (Fla. 1st DCA 1978).

The United States Supreme Court has recognized a criminal defendant's limited right to proceed pro se. Faretta v. California, 422 U.S. 806 (1975). In Faretta, the court held that a criminal defendant has the right to proceed pro se upon a voluntary and intelligent waiver of the Sixth Amendment right to counsel. It has been held that this limited right does not extend to the right to have lay representation in a criminal case. United States v. Brown, 600 F.2d 248 (10th Cir. 1979); Bauer v. State, 610 So. 2d 1326 (Fla. 2d DCA 1992).

Prisoners have the right to have assistance from nonlawyer fellow prisoners in the filing of habeas corpus actions. See Johnson v. Avery, 393 U.S. 483 (1969), and civil rights complaints, Wolff v. McDonnell, 418 U.S. 539 (1974).

(2) Family Self-Help Programs: Because of the overwhelming number of litigants who proceed pro se in family law cases (65% of all initial filings in family law cases are filed pro se), the Supreme Court has authorized the creation of family law self-help programs, available without regard to income. The self-help programs are “non-profit, court-sanctioned programs that will be operated under the supervision of attorneys.” In re: Amendments to the Florida Family Law Rules of Procedure (Self Help), 725 So. 2d. 365, 368 (Fla. 1998). The chief judge of each circuit court is authorized to establish a self-help program “to assist self-represented litigants . . . to achieve fair and efficient resolution of their family law case.” Fla. Fam. L. R. P. Rule 12.750. Self-help personnel may provide the following services and such services shall not be considered the unauthorized practice of law:

(a)   encourage self-represented litigants to obtain legal advice;

(b)   provide information about available pro bono legal services, low cost legal services, legal aid programs, and lawyer referral services;

(c)   provide information about available approved forms, without providing advice or recommendation as to any specific course of action;

(d)   provide approved forms and approved instructions on how to complete the forms;

(e)   engage in limited oral communications to assist a person in the completion of blanks on approved forms;

(f)   record information provided by a self-represented litigant on approved forms;

(g)   provide, either orally or in writing, definitions of legal terminology from widely accepted legal dictionaries or other dictionaries without advising whether or not a particular definition is applicable to the self-represented litigant’s situation;

(h)   provide, either orally or in writing, citations of statutes and rules, without advising whether or not a particular statute or rule is applicable to the self-represented litigant’s situation;

(i)   provide docketed case information;

(j)   provide general information about court process, practice, and procedure;

(k)   provide information about mediation, required parenting courses, and courses for children of divorcing parents;

(l)   provide either orally or in writing, information from local rules or administrative orders;

(m)   provide general information about local court operations;

(n)   provide information about community services; and

(o)   facilitate the setting of hearings.

Fla. Fam. L.R.P. Rule 12.750(c)(1)-(15). Self-help personnel are not permitted to:

(a)   provide legal advice or recommend a specific course of action for a self-represented litigant;

(b)   provide interpretation of legal terminology, statutes, rules, orders, cases, or the constitution;

(c)   provide information that must be kept confidential by statute, rule or case law;

(d)   deny a litigant’s access to the court;

(e)   encourage or discourage litigation;

(f)   record information on forms for a self-represented litigant, except as otherwise provided by this rule;

(g)   engage in oral communications other than those reasonably necessary to elicit factual information to complete the blanks on forms except as otherwise authorized by this rule;

(h)   perform legal research for litigants;

(i)   represent litigants in court; and

(j)   lead litigants to believe that they are representing them as lawyers in any capacity or induce the public to rely upon them for legal advice.

Fla. Fam. L.R.P. 12.750(d)(1)-(10). Information provided by a self-help litigant to self-help personnel is not confidential. Fla. Fam. L.R.P. 12.750(f). Further, there is no conflict of interest in providing services to both parties. Fla. Fam. L. R.P. 12.750(g).

(3) Authorization by Legislature to Practice before Administrative Agencies: The Florida Supreme Court has held that the Legislature may authorize the practice of law by nonlawyers before administrative agencies of the state. The Supreme Court has no control over the practice of law before state agencies because of the separation of powers doctrine found in article II, section 3 of the Florida Constitution which provides: "No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."

The Florida Administrative Procedures Act ("APA") authorizes representation by nonlawyers before state agencies. "Any person compelled to appear, or who appears voluntarily, before any presiding officer or agency in an investigation or in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives." Fla. Stat. § 120.62(2). "Agency" is defined broadly in section 120.52(1), Florida Statutes. However, as the Florida Supreme Court has noted, the APA only authorizes "qualified" lay representatives to appear in agency proceedings. Florida Bar v. Moses, 380 So. 2d 412, 418 (Fla. 1980). Agency rules authorizing lay representation must contain specific standards of competence and professional responsibility. Id. The Florida Administrative Code contains model rules which list criteria for "qualified representatives." Fla. Admin. Code § 28-106.106.

(4) Federal Preemption: States are preempted by federal law from prohibiting nonlawyers from practicing before the United States Patent Office. Sperry v. Florida, 373 U.S. 379 (1963).

(5) Nonlawyer Assistance with Legal Forms: To provide better access to the courts, the Florida Supreme Court has adopted simplified forms which require only the insertion of factual information into the blanks. Rules Regulating the Fla. Bar--Approval of Forms, Rule 10-1.1(b), 581 So. 2d 902 (Fla. 1991). Rule 10-1.1(b) was moved to Rule 10-2.1(a). Florida Bar re Amendment to Rules Regulating the Fla. Bar, 605 So. 2d 252 427 (Fla. 1992). FL Rule 10-2.1(a) authorizes nonlawyers to assist in the completion of these forms.

(6) Property manager representation of landlords in uncontested residential evictions: The Florida Supreme Court has specifically authorized nonlawyer property managers to represent individual and corporate landlords in uncontested residential evictions for nonpayment of rent. Florida Bar re Advisory Opinion--Nonlawyer Preparation of and Representation of Landlord in Uncontested Residential Evictions, 605 So. 2d 868 (Fla. 1992); Florida Bar re Advisory Opinion--Nonlawyer Preparation of and Representation of Landlord in Uncontested Residential Evictions, 627 So. 2d 485 (Fla. 1993). An eviction is not considered uncontested if a hearing is required. Id. at 487. This authorization does not extend to nonlawyers other than property managers, which are defined as "responsible for the day-to-day management of the residential rental property, as evidence by such factors as responsibility for renting of units, maintenance of rental property, and collection of rent." Id. The landlord must give written authorization which permits only the completion, signing, and filing of pleadings to evict a tenant for nonpayment of rent. Id. It does not include recovery of past due rent. Id.

(7) Others: The Florida Supreme Court has made provision for limited practice of law by persons not admitted to practice law in Florida, including law students, FL Rule 11-1.1, retired lawyers (including those retired from states other Florida) in pro bono cases, FL Rule 12-1.1, lawyers from other jurisdictions while employed by a legal aid organization, FL Rule 13-1.1, foreign lawyers acting as consultants regarding the laws of their countries, FL Rule 16-1.1, authorized house counsel, FL Rule 17-1.1, and military attorneys, FL Rule 18-1.1.

Advisory Opinions

An individual or organization may obtain an advisory opinion from the standing committee regarding whether a particular hypothetical situation involves the unlicensed practice of law, by sending a written request to The UPL Department, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida, 32399-2300. FL Rule 10-9.1(b). A proposed advisory opinion which finds that the questioned conduct is not the unlicensed practice of law may be reviewed by the Florida Supreme Court. FL Rule 10-9.1(g)(1). If the questioned conduct is the unlicensed practice of law The Florida Supreme Court must review the opinion. FL Rule 10-9.1(g)(2).

Sanctions

Generally, the sanction for unlicensed practice of law by a nonlawyer is an injunction against further practice of law. See, e.g., Florida Bar v. York, 689 So. 2d 1037 (Fla. 1996). Violation of an injunction against the unlicensed practice of law may result in a finding of indirect criminal contempt and subject the violator to incarceration. See, e.g., Florida Bar v. Schramek, 670 So. 2d 59, 61 (Fla. 1996) (respondent sentenced to 90 days' imprisonment).

Restitution may be ordered against a lawyer for unlicensed practice of law, Florida Bar v. Neely, 675 So. 2d 592, 593 (Fla. 1996), but not against a layperson. The Florida Bar v. Warren, 661 So. 2d 304, 305 (1995) (Chapter 10 does not authorize the imposition of restitution); see also Florida Bar re Amendments to Rules Regulating the Fla. Bar (Proceedings Before a Referee), 685 So. 2d 1203 (Fla. 1996) (declining to amend rules to allow order of restitution against layperson).

The Florida Supreme Court has held that a complaint filed and signed by a lawyer not licensed to practice in Florida is an amendable defect rather than a nullity. Torrey v. Leesburg Reg'l Med. Ctr., 769 So. 2d 1040 (Fla. 2001).

Statutory Prohibition against Unlicensed Practice of Law

Florida Statutes section 454.23 prohibits the unlicensed practice of law: "Any person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law or assume or hold himself or herself out to the public as qualified to practice in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to act as a lawyer in this state, and any person entitled to practice who shall violate any provisions of the chapter, shall be guilty of a misdemeanor of the first degree." Fla. Stat. § 454.23 (2001). The statute has been held not to be unconstitutionally vague. State v. Foster, 674 So. 2d 747 (Fla. 1st DCA 1996); State v. Trotter, 677 So. 2d 35 (Fla. 5th DCA 1996). The statute is enforced by the state, rather than by The Florida Bar. See Florida Bar re Amendments to Rules Regulating the Florida Bar (Proceedings Before a Referee), 685 So. 2d 1203 (Fla. 1996).

A separate statute governs the practice of law by disbarred or suspended lawyers: "Any person who has been disbarred and who has not been lawfully reinstated or is under suspension from the practice of law by any circuit court of the state or by the Supreme Court of the state who shall either directly or indirectly practice law in any manner or hold himself or herself out as an attorney at law or qualified to practice law shall be guilty of a misdemeanor of the first degree." Fla. Stat. § 454.31 (2001). Sanctions include imprisonment of up to one year and a fine of up to $1000. Fla. Stat. §§ 775.082(4)(a), 775.083(1)(d). Any lawyer who assists a disbarred or suspended attorney in the practice of law is guilty of a misdemeanor. Fla. Stat. § 454.32 (2001). Section 454.31 has been held to be constitutional in State v. Palmer, 2001 WL 838201 (Fla. 1st DCA, July 26, 2001). In Palmer, a disbarred attorney argued that the statute violated the separation of powers doctrine because the Supreme Court has exclusive jurisdiction over the discipline of attorneys. The First DCA held that the legislature had overlapping jurisdiction over the unlicensed practice of law by disbarred attorneys.

5.5:220      Admission and Residency Requirements for Out-of-State Lawyers

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5.5:230      Pro Hac Vice Admission [see also 8.1:240]

The Supreme Court of Florida recently adopted two rules relating to appearances by lawyers not admitted to practice in Florida: FL Rule 1-3.10, Appearances by Non-Florida Lawyers, and FL Rule Jud. Admin. 2.061, Foreign Attorneys. These rules no longer use the term "pro hac vice." The term "temporary admission" is used instead. Amendments to the Rules Regulating The Florida Bar, 2001 WL 101623 (Fla. Feb. 8, 2001); Amendments to Fla. Rules of Jud. Admin., 2000 WL 1471864 (Fla. Oct. 5, 2000). FL Rule 1-3.10 provides that "a practicing lawyer of another state, in good standing, may, upon association of a member of The Florida Bar, in good standing, and verified motion be permitted to practice upon such conditions as the court deems appropriate under the circumstances of the case." FL Rule 1-3.10(a). Such lawyer must comply with the applicable portions of FL Rule 1-3.10 and the Florida Rules of Judicial Administration, and is subject to the Rules Regulating The Florida Bar. The rule prohibits non-Florida lawyers from engaging in "a general practice before Florida courts." A presumption of a general practice arises if a non-Florida lawyer appears three times within a 365-day period in separate and unrelated representations. FL Rule 1-3.10(2). A court has discretion to allow other appearances upon a showing that the appearances are not a "general practice" or that denial will work a substantial hardship on the client. FL Rule 1-3.10(2). Non-Florida lawyers who have been disciplined or held in contempt during temporary admission will not be granted future temporary admissions. FL Rule 1-3.10(3). The rule does not permit the admission of inactive, suspended, and former members of The Florida Bar. FL Rule 1-3.10(4).

The verified motion filed under FL Rule 1-3.10 or the Florida Rules of Judicial Administration must include:

(1) a statement of the current Florida Bar membership status of the lawyer, if any;

(2) a statement indicating the lawyer is currently a member in good standing of a jurisdiction other than Florida;

(3) a statement indicating the date the legal representation at issue commenced and the party(ies) represented;

(4) a statement identifying, by date, case name, and case number, all other matters in which temporary admission has been sought in the state of Florida in the prior 5 years and whether such admission has been granted or denied;

(5) a statement that all provisions of this rule and the applicable provisions of the Florida Rules of Judicial Administration have been read and that the motion for leave to appear is filed in compliance therewith;

(6) the name, record bar address, and membership status of the member(s) of The Florida Bar associated for purposes of the representation; and

(7) a certificate indicating service of the verified motion upon all counsel of record in the matter in which leave to appear is sought.

FL Rule 1-3.10(b).

Rule 2.061 of the Florida Rules of Judicial Administration is nearly identical to FL Rule 1-3.10, but contains some additional provisions. For example, a lawyer who is a Florida resident is not allowed temporary admission. FL Rule Jud. Admin. 2.061(a). The rule also contains additional requirements for the verified motion for temporary admission, including "a statement identifying all jurisdictions in which the attorney has been disciplined in any manner in the preceding 5 years, or in which the attorney has pending any disciplinary proceeding." FL Rule Jud. Admin. 2.061(b)(3). The motion must also contain the signature of the Florida Bar member associated for purposes of the representation. FL Rule Jud. Admin. 2.061(b)(8).

FL Rules of Appellate Procedure 9.440(a) provides: "Attorneys who are members in good standing of the bar of another jurisdiction may be permitted to appear in a proceeding if a motion to appear has been granted."

5.5:240      Performing Legal Services in Another Jurisdiction

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5.5:300   Assisting in the Unauthorized Practice of Law

Primary Florida References: FL Rule 4-5.5(b)
Background References: ABA Model Rule 5.5(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8201, Wolfram § 15.1

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5.6   Rule 5.6 Restrictions on Right to Practice

5.6:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-5.6
Background References: ABA Model Rule 5.6, Other Jurisdictions
Commentary:

5.6:101      Model Rule Comparison

FL Rule 4-5.6 is identical to MR 5.6.

5.6:102      Model Code Comparison

DR 2-108 is similar to FL Rule 4-5.6.

5.6:200   Restrictions on Lawyers Leaving a Firm

Primary Florida References: FL Rule 4-5.6(a)
Background References: ABA Model Rule 5.6(a), Other Jurisdictions
Commentary: ABA/BNA § 51:1201 ALI-LGL § , Wolfram §

An employment agreement between an associate and a law firm providing that upon leaving the firm the associate must not (1) seek, directly or indirectly, any of the firm's clients; or (2) induce, directly or indirectly, any employee to leave the firm, was found to violate FL Rule 4-5.6. FL Eth. Op. 93-4 (Feb. 17, 1995). The agreement also provided that if the associate, after leaving the firm, continued to work on any ongoing matters for a client of the firm, the associate would pay the firm 50% of any fee received from the client. The contract therefore created a financial disincentive that precluded the departing attorney from representing firm clients, thus, possibly depriving the clients of their attorney of choice. Insofar as the contract attempted to prevent a departing attorney from hiring other lawyers from the firm it violated FL Rule 4-5.6 because it restricted the right of association between lawyers and indirectly the right to practice Id. But see Lee v. Florida Dep’t of Ins., 586 So. 2d 1185, 1188 (Fla. 1st DCA 1991) (“To use rule 4-5.6 as the basis for invalidating a private contractual provision is manifestly beyond the stated scope of the Rules and their intended legal effect.”).

5.6:300   Settlements Restricting a Lawyer's Future Practice

Primary Florida References: FL Rule 4-5.6(b)
Background References: ABA Model Rule 5.6(b), Other Jurisdictions
Commentary: ABA/BNA § 51:1201, ALI-LGL § , Wolfram §

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5.7   Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100   Comparative Analysis of Florida Rule

Primary Florida References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary:

5.7:101      Model Rule Comparison

The Florida rules contain no counterpart to MR 5.7.

5.7:102      Model Code Comparison

The Model Code has no counterpart to MR 5.7.

5.7:200   Applicability of Ethics Rules to Ancillary Business Activities

Primary Florida References:
Background References: ABA Model Rule 5.7, Other Jurisdictions
Commentary: ABA/BNA § 101:2103, ALI-LGL §, Wolfram §

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