Many individuals out there put in the blood, sweat, and tears (lots and lots of tears) that it takes to graduate law school, and then put in new blood, sweat, and tears (again, lots and lots of tears) into studying for their state’s bar exam and passing the bar. At the end of the day, all of that work bestows the honor upon those individuals the ability to practice law. Unfortunately, there are people out there that intentionally attempt to practice law every day, and there are others who are unintentionally practicing law without a license. The unlicensed practice of law can have serious consequences for both the perpetrator and the person receiving the advice and/or services, regardless of whether the unlicensed practice of law was intentional or unintentional. So how exactly would one determine whether they are practicing law?
According to the Supreme Court of Florida, a two-part analysis must be made in order to determine whether someone is performing the activity of unlicensed practice of law. First, is whether the activity is the practice of law, the second is whether the practice is authorized. If one performs an activity that is authorized and also the practice of law, the activity is not considered the unlicensed practice of law and may be conducted by a nonlawyer.
When looking at the first question, whether the activity is the practice of law, the Court created a test to determine whether an activity is considered the practice of law. This test is known as the Sperry test. In The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), the Court found that setting a broad definition of the practice of law was too broad and nearly impossible and decided to develop the following test to determine whether an activity is considered the practice of law:
If the advice and the performance of service affect an individual’s 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 person giving such advice possess legal skill and 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.
The most important reason for this test is to protect the public from incompetent, unethical, or irresponsible representation. So, what exactly is considered the unlicensed practice of law? Below are a few examples.
When it comes to Real Estate, one of the most common activities that is considered the unlicensed practice of law is when a real estate licensee drafts a purchase agreement and changes and/or consults a buyer or seller of the terms of the agreement. For example, Frieda is a friend of Sally the Seller who is selling her beautiful beachfront property to Bill the buyer. Frieda, who has a background in real estate and is unlicensed, but works as a surgeon at a hospital, decides to help Sally with the sale of her beachfront property. Frieda drafts up the agreement with all of the terms that Sally and Bill agreed on, from scratch. Since Frieda has drafted the contract and is not licensed to practice law, she has performed the unlicensed practice of law. An exception to this is that real estate licensees are allowed to use a Florida Supreme Court form and they are allowed to fill out the form.
Since the pandemic started, evictions have been skyrocketing, and more nonlawyers have been trying to file evictions on behalf of others. When it comes to evictions, it is considered the practice of law for a nonlawyer to represent a third party in an eviction and if a nonlawyer prepares eviction forms for another. However, the exception to this is that a nonlawyer can fill out the information if they are using a Supreme Court Approved form. Another exception is for property managers. Property managers are allowed to sign and file complaints for evictions and motions for default in an uncontested residential eviction for nonpayment of rent so long as the property manager is using a Supreme Court Approved form.
Florida does not allow a nonlawyer to prepare any corporate documents for another person. For example, Eleni the entrepreneur wants to start a bakery in his hometown. Instead of going to her favorite entity formation attorney at Makris Legal, P.A., she decided to ask one of her friends to form it for her that used to work as a secretary at a law firm, including filing the articles of organization and drafting an operating agreement. It not only puts Eleni and her new bakery at risk, but it also is improper for her friend to form the entity and prepare the corporate documents.
When it comes to Probate the Florida Supreme Court has held that it is the unlicensed practice of law for a nonlawyer to draft a living trust and related documents for another person. For example, Gary the grandpa wanted to create a will in order to pass down his assets to his children and grandchildren upon his death. Gary calls his friend who recommends a man who drafted a will for him. Gary’s friend met the man at his local grocery store where the man works. Knowing better, Gary decided to not use the man after finding out that the man works at a grocery store, and decided to call his local estate planning attorney instead. This is a wise decision for Gary because the man is a nonlawyer who is practicing law. Additionally, Florida does not allow a nonlawyer to draft a will for a third party.
Although it is not only improper for nonlawyers to participate in the practice of law, it also can create many issues for the individuals or companies that could be substantially harmed by it. At the end of the day, it is always best to contact a licensed attorney. To reach an attorney with Makris Legal P.A., click here.