Allow nonlawyer legal document preparers continue to help consumers without interference.
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I represent a statewide group of nonlawyer document preparers who strive to provide document preparation services to consumers who cannot afford an attorney, or consumers who choose not to retain an attorney. We stay within the rules regarding the unauthorized practice of law (UPL) as well as we can. But the rules are not clear. There are a few basic rules on the Florida Bar site: a nonlawyer may not hold himself out to be an attorney; a nonlawyer may not refer to himself as a paralegal or legal assistant when providing services to self-represented consumers; and a nonlawyer must intake consumer information in writing unless using Florida Supreme Court approved forms.
All other rules UPL rules are scattered about in case law and Supreme Court Orders. It is extremely difficult for us to follow rules when we don't know what those rules are. We try. We read the cases and try to glean from them the information that we can to be in compliance. The consequences of breaking a UPL rule can be dire. In Florida UPL is a third degree felony.
Nonlawyer document preparers are typically self-employed individuals or small businesses. We are not in a position to fight the Florida Bar. Some document preparers will close their business when faced with a Florida Bar UPL Committee investigation. A UPL investigation can be initiated by the Florida Bar itself, usually for "improper" language or word choice in an advertisement or on a website. For example, I am aware of several instances where a document preparer was told that he may not use the word "legal" in his business name; may not use the word "legal" anywhere on his website; and may not even use the word "legal" in his email address. I have looked everywhere and cannot find this rule.
A UPL investigation can also be initiated by any attorney. In theory, a UPL investigation initiated by an attorney would be to protect the overall integrity of the practice of law; in fact, an investigation initiated by an attorney is usually a vindictive act to protect his turf. Some attorneys believe that the existence of document preparers is a threat to their livelihood. This couldn't be further from the truth. Document preparers prepare forms. Document preparers do not compete with attorneys at all, document preparation services are just that. Document preparers may prepare forms, explain procedure, and provide legal information. Document preparers do not give legal advice or representation. Attorneys do not attend law school for three years to prepare forms.
Sometimes, during a UPL investigation a document preparer is presented with a Cease and Desist Order. The Cease and Desist may be all inclusive, and serves to put the document preparer out of business then and there. If the document preparer refuses to sign the Cease and Desist, the investigation may then be referred to the State Attorney for prosecution. The document preparer is reminded in all correspondence that UPL is a third degree felony and a conviction could result in incarceration or fines. These are terrifying threats made to self-employed document preparers or owners of small businesses, who seek to close the "justice gap".
The justice gap is a known problem. Many consumers are unable to afford counsel when faced with a legal matter. Without document preparation companies these consumers might abandon their legal matter altogether and forego their rights. Or consumers sometimes postpone taking any legal action, and the delay makes their situation worse.
The Florida Bar's aggressive stance on investigating UPL not only harms document prepaers, but also harms consumers. We ask that the Florida Bar change their policies regarding investigation of UPL in the following ways:
1. Investigate UPL when there is consumer harm. Not when there is "potential" harm.
2. If the Florida Bar demands that we follow their rules, make those rules clear, and set out in a fashion in which document preparers can easily find and refer to the rules.
3. Lighten up on the investigation of document preparers altogether. We feel we are being bullied and harassed by an entity that does not supervise us. The Florida Bar is authorized to investigate UPL, but putting document preparers out of business is counter productive all around.
4. Give us some recognition for what we do. We are part of the solution to the ongoing justice gap. Until consumers are being served fully, there is no need for us to be perceived as a threat to lawyers.
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