As a paralegal in a family law office, I am constantly inundated with questions from clients and potential clients. I am asked a wide range of questions, from what is the next step in their case to what the odds are of winning their case. While some of the questions I am asked I can answer with confidence, I have to be careful not to cross the line into the unlicensed practice of law. Unfortunately, while I am careful, there are many others that are not and do not understand or comply with the rules regarding the unlicensed practice of law.
Many people do not know that, in Florida, the practice of law is strictly regulated by the Florida Bar. To be a lawyer, you not only have to possess the proper education, but you must pass an examination, maintain membership with the Bar, and participate in continuing education. The guidelines that have been adopted to control the practice of law in Florida are called the Rules Regulating the Florida Bar (Rules). For the lay person, this is not common knowledge. To those of us that work in the legal profession, we are acutely aware of the rules. We are called upon to ensure not only our personal compliance but also to report any violations. One of the more frequent violations that I have seen in the last few years has been the “unlicensed practice of law."
The unlicensed practice of law is defined by Rule 10-2.1(a) as “the practice of law, as prohibited by statute, court rule, and case law of the State of Florida.” To put it simply, anyone that is not an attorney, licensed, or permitted to practice law in Florida who is practicing law is participating in the “unlicensed” practice of law. A person that is found to be engaging in the unlicensed practice of law can be criminally charged with charges that range from a first-degree misdemeanor to a third-degree felony. The punishments can range from fines up to $5,000 and prison sentences up to five years.
Per Rule 10-2.1(b), a paralegal is defined as “a person with education, training, or work experience, who works under the direction and supervision of a member of The Florida Bar and who performs substantive legal work for which the member of The Florida Bar is responsible.” In short, if someone is claiming to be a paralegal, they must be employed, directed, and supervised by a lawyer. Further, the Rule states: “It shall constitute the unlicensed practice of law for a person who does not meet the definition of paralegal or legal assistant to use the title paralegal, legal assistant, or other similar term in offering to provide or in providing services directly to the public.”
Despite the rules, there are many people who still inappropriately call themselves paralegals and offer to help you complete forms for your case. There are also people who call themselves “document preparers.” The term “document preparer” is a term that people began using instead to avoid being accused of the unlicensed practice of law. While there can be cases that would be acceptable for the use of a document preparer, those cases are few and far between. The law is so intricate and substantive that Rule 10-2.2 outlines the work that a non-attorney can do and not be considered engaging in the unlicensed practice of law. To summarize, a non-lawyer may assist in completing Florida Supreme Court Approved Forms. Such assistance is limited to asking the factual questions necessary to fill in the blanks on the forms and telling you how to file a form. If you need a document prepared that is not an Approved Form, the non-lawyer may not create their own forms; they may only transcribe a form that you dictate to them. Additionally, they are prohibited from providing editorial comment, giving you legal advice, and adding or deleting information from your forms or the Approved Forms.
You may be asking yourself, why is this important to know? As more and more “document preparers” and solo “paralegals” crop up and advertise, knowing these rules is important to protecting yourself against serious legal issues. Many people believe that they can handle their legal issues without an attorney. While it is sometimes possible to handle a matter completely unrepresented, there are many considerations that you may not be aware of, which a non-lawyer cannot advise you of. For example, if you own properties, retirement accounts, have children, and owned property prior to your marriage, there are important issues to consider that only an attorney can provide you advice on. If you have a divorce in which you have no children, no property, and absolutely agree on the issues, it might benefit you to use a non-lawyer. If you have any other complicated matters, regardless of having an agreement, it is in your best interest to at least consult with an attorney before using a non-lawyer for document preparation.
Some believe that if there are forms for it then it must not be that difficult. I cannot count how many people have contacted our office because they have bought the “packet” from the courthouse and are completely overwhelmed by its size and information required. It is understandable. When you do not deal with legal forms and legalese on a daily basis, even the simplest of questions to a legal professional can be complicated to the lay person.
The complicated nature of the forms isn’t the only issue that you should consider. As I said before, there are more issues that require additional attention be paid to them. There have been many times where clients first hired a document preparer, filed their case, and represented themselves. When it came to a highly contested part of the case, the client learned that there were issues that they had not considered or addressed and they needed to change their filings and correct what was missed. It is at this point that the clients consult with attorneys and learn that everything, typically, must be redone. This costs the clients more time and money.
For example, in one instance, the parties failed to ensure that all their real properties were properly disposed of. This required that a motion for rehearing be done and a lot of extra, unnecessary litigation, fees, and time be expended. Had the client come to the attorney at the beginning or before the final hearing, these issues might have been handled more quickly and cost-effectively.
In another instance, the document preparer actually created their own documents to register, modify, and enforce a divorce from another state. Not only was the case filed improperly, this type of matter does not have any Florida Supreme Court Approved Forms. So the “document preparer” not only decided what type of case should be filed but also made their own form -- the very definition of unlicensed practice of law.
Finally, I have personally seen someone advertise her services as “paralegal type assistance” wherein she can “provide legal assistance…research Florida Statutes and Laws and prepare case law and discovery packages…” This person has even offered to do “wills, married and single, POAs, living wills, and so forth…” If you have read this entire article, you should be able to spot this advertisement as an offer to commit the unlicensed practice of law. Despite this, I have seen numerous people comment and ask her for help for a wide variety of issues. I have personally tried to warn her that what she was offering to do was the unlicensed practice of law. My warning was rebuffed as she was “…only looking up things online for people that any average person can…” As she has refused to correct her advertisements to comply with the rules, as required, I have notified the Florida Bar of this person’s actions.
These warnings are not meant as a condemnation of document preparers. As a paralegal, I have assisted clients in preparing forms, too. When I do help prepare forms, I do so from the Approved Forms and do not provide legal advice. These warnings are meant to provide you, the layperson, with the knowledge you need to assess whether or not you are the victim of the unlicensed practice of law. As I demonstrated, there can be severe consequences for the person who seeks legal assistance but does not obtain proper advice from a licensed attorney. While a simple matter is easily handled through a document preparer, who determines what is simple and complex? The only person who can decide that they have a complex matter and should seek legal advice is you.
Not only am I a paralegal but I am also a divorcee. I know from personal experience how difficult divorces can be to handle on your own. Even if I weren’t a paralegal and didn’t work for an attorney, I can honestly say I would have used an attorney in my case. My case involved personal property, vehicles, child custody, child support, and numerous other issues that, although the forms were available for someone to assist in preparing, they could not replace the valuable advice that I received from my attorney.
I know that hiring an attorney is expensive and using a document preparer can seem like a cheaper alternative. But, as with most things, you get what you pay for. You would not pay a plumber to fix your car. There is a reason that attorneys are required to undergo rigorous schooling and continuous education. The law is expansive, complex, and in a constant state of change. For these reasons alone, it is always advisable to hire an attorney for your legal issues. If you are unable to afford an attorney altogether, you should at least consider consulting with and having an attorney review any paperwork prepared by a non-attorney before it is filed.
Certified Divorce Financial Analyst
Business Valuators / CPAs