Access to courts and the unauthorized practice of law: 10 years of UPL advisory opinions.

• Author: Sondak, Robert M.
• Position: Florida Supreme Court

10 Years of UPL Advisory Opinions

In February 1988, the Florida Supreme Court began issuing advisory opinions as to whether nonlawyer conduct constitutes the unlicensed practice of law (UPL). After 10 years of UPL advisory opinions, certain trends in the law have crystallized. The Florida Supreme Court has in several instances restated and amplified on existing law, and in other instances has created a new body of law to meet the needs of the public. New issues, with even more long term impact on the practice of law, remain to be decided. This article examines those opinions and other activities which have grown out of the court's 10 years of advisory opinions.

The court's purpose for agreeing to issue UPL advisory opinions was to offer nonlawyers the opportunity to learn, in advance of UPL enforcement proceedings, whether their proposed conduct was consistent with the prohibition on the unauthorized practice of law. Since unauthorized practice is a criminal misdemeanor, F.S. [sections] 454.23, and is also punishable by the Florida Supreme Court as indirect criminal contempt, Rule 10-7.2 of the Rules Regulating The Florida Bar, the availability of a procedure to learn, in advance, whether prospective conduct is prohibited has obvious benefits for nonlawyers.

The advisory opinion procedure has, however, developed far differently from its original intent. The opinions issued by the Florida Supreme Court have addressed existing rather than proposed conduct. The court's opinions have faced fundamental issues relating to the separation of powers, the role of professionals with expertise in law related fields, and the promotion of access to the legal system. In the course of answering requests for advisory opinions, the court has begun to restate and redefine the prohibition on unauthorized practice of law, thereby raising new questions for both lawyers and nonlawyers.

History

Normally, courts are prohibited from issuing advisory opinions, and are limited to cases and controversies. Martinez v. Scanlon, 582 So. 2d 1167, 1170-71 (Fla. 1991). The Florida Constitution contains an exception to this rule, permitting the court to answer requests for advisory opinions by the Governor. Fla. Const. Art. IV, [sections] 1(c). The court also has the inherent power to answer requests for advisory opinions by agencies which act on its behalf. See The Florida Bar Re: Advisory Opinion Concerning Applicability of Chapter 119, Florida Statutes, 398 So. 2d 446, 447 (Fla. 1981). None of these exceptions, however, gave the public a method of requesting an advisory opinion on prospective conduct.

In the 1960s, the Standing Committee on Unauthorized Practice of Law of The Florida Bar (the "standing committee on UPL") began issuing informal advisory opinions. Committees in several other states also were issuing advisory opinions, all without direct participation by the courts of those states.

In Surety Title Insurance Agency, Inc. v. Virginia State Bar, 431 F. Supp. 298 (E.D. Va. 1977), vacated and remanded with instructions, 571 F.2d 205 (4th Cir. 1978), a U.S. district court found that the Virginia State Bar's practice of issuing unauthorized practice of law opinions, when coupled with the threat of disciplinary proceedings, violated the federal antitrust laws. The district court opinion was vacated by the Fourth Circuit on procedural grounds, after which the case was settled. Therefore, there was no final judicial resolution of the antitrust issue. In view of the potential antitrust exposure, state bar associations, including The Florida Bar, ceased issuing advisory opinions.

In 1984, the U.S. Supreme Court decided Hoover v. Ronwin, 466 U.S. 558 (1984), which held that actions of the Arizona Committee on Examinations and Admission was exempt from antitrust challenge because they were "state action" of the judicial branch of government. Thereafter, the American Bar Association issued proposed rules for courts wishing to issue advisory opinions. The basic concept of the ABA rule was that if advisory opinions were an affirmative command of the judicial branch and the opinions were issued by the court rather than the bar, then the advisory opinions would be exempt from the antitrust laws under the "state action" doctrine as set forth in Hoover. The Florida Supreme Court adopted procedures for issuing advisory opinions on the unlicensed practice of law in July 1986. The Florida Bar Re: Rules Regulating The Florida Bar, 494 So. 2d 977, 1115-16 (Fla. 1986).

Advisory opinions are especially needed because there are few bright line rules explaining what conduct constitutes the practice of law. See The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191-92 (Fla. 1978) ("any attempt to formulate a lasting, all encompassing definition of the `practice of law' is doomed to failure"). Moreover, in the wake of the Rosemary Furman controversy, The Florida Bar v. Furman, 376 So. 2d 378 (Fla. 1979), and The Florida Bar v. Furman, 451 So. 2d 808 (Fla. 1984), the leadership of The Florida Bar believed that changes in UPL enforcement were essential. See, e.g., the President's Page of the January 1985 Florida Bar Journal, in which Gerald F. Richman suggested that the Bar leave the field of UPL enforcement to the state attorney.

The advisory opinion rule was only one of several changes in UPL enforcement during this era. In 1986, the UPL rules were changed to provide that The Florida Bar could seek civil injunction enforcement only, leaving to the state attorneys' offices all criminal enforcement of UPL restrictions. The Florida Re: Rules Regulating The Florida Bar, 494 So. 2d 977, 1111 (Fla. 1986). It was hoped that this approach to UPL enforcement would reduce the amount of controversy the Bar's UPL program would generate. In 1996, the court readopted rules authorizing indirect criminal contempt proceedings. In re: Amendment to Rules Regulating The Florida Bar, 627 So. 2d 272, 296-98 (Fla. 1996).

A more far-reaching change occurred in 1987, when the Florida Supreme Court adopted an amendment to the definition of the practice of law in Ch. 10 of the Rules Regulating The Florida Bar, The Florida Bar Re: Amendments to Rules Regulating The Florida Bar (Chapter 10), 510 So. 2d 596, 597 (Fla. 1987). The amendment permitted "nonlawyers to engage in limited oral communications to assist individuals in the completion of legal forms approved by the Supreme Court of Florida." The purpose of this amendment was to address the criticism of the rule in The Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1194 (Fla. 1978), that nonlawyers may sell legal forms and type the forms, copying the information given to them in writing by their customers, but may not engage in any oral communication concerning the forms. Consequently, at least insofar as forms which are approved by the Florida Supreme Court, form sellers now may point out errors in the information customers write on the forms, thereby simplifying and streamlining the process.

Advisory Opinion Process

The procedures for issuing advisory opinions require a written request seeking an advisory opinion concerning activities which may constitute the unlicensed practice of law, stating in detail all operative facts upon which the request for opinion is based. Rule 10-9.1(b), Rules Regulating The Florida Bar. The Standing Committee on UPL is required to publish a notice in The Florida Bar News and in a newspaper in the Florida county in which the meeting will be held, giving the date, time, and place of the next standing committee meeting, stating the question presented and inviting written comments. At the meeting, "any person affected shall be entitled to present oral testimony and be represented by counsel. Oral testimony by other persons may be allowed by the committee at its discretion." Rule 10-9.1(f)(1).

After the meeting, the committee must decide either to issue a written proposed advisory opinion or send a letter declining to issue an opinion. If the committee concludes that the conduct in question is not the unlicensed practice of law, the committee may issue an "informal" advisory opinion to that effect. Rule 10-9.1(g)(1). All other proposed advisory opinions must be filed with the Florida Supreme Court together with the record. The party requesting the opinion is given notice of its filing together with a copy of the opinion. Rule 10-9.1(g)(2). The committee must publish a summary of the proposed advisory opinion in The Florida Bar News. Rule 10-9.1(f)(3).

Anyone may, within 30 days, file a brief objecting to the opinion. The committee may file its responsive brief and reply briefs then could be filed. The Supreme Court may allow oral argument. Rule 10-9.1(g)(3). Thereafter, the court may "approve, modify, or disapprove the advisory opinion, and the ensuing opinion shall have the force and effect of an order of this court and be published accordingly." Rule 10-9.1(g)(4).

HRS Nonlawyer Counselor Opinion

The first request for an advisory opinion under the new rule came from an unusual source, the Florida Department of Health and Rehabilitative Services (HRS), which requested a formal advisory opinion as to whether its nonlawyer counselors (social workers) could prepare and file pleadings and appear in court on behalf of HRS in uncontested dependency court cases. After holding two public hearings, the Standing Committee on UPL issued a proposed advisory opinion concluding that HRS counselors were engaged in the unlicensed practice of law. HRS objected to the opinion, briefs were filed, and on October 12, 1987, the court heard oral argument.

The issues raised by the HRS request were far from routine. F.S. Ch. 39 appeared to authorize HRS employees to perform all of these functions. The Supreme Court was faced with questions of separation of powers both as to the legislative power to authorize the practice of law in dependency cases, and the judiciary's power to enjoin an agency of the executive branch from...