Florida Bar To Shine Sunlight On Unlicensed Practice Of Law

Lawyers have a monopoly, just like doctors and dentists do.  We go to law school, pass a bar exam, learn and follow professional rules, and get regular training.  In exchange, each state lets lawyers control a monopoly over the practice of law in that state.  But, since we’re lawyers, there’s always argument about what “the practice of law” means, exactly.

In Florida, attorneys are trying to decide where the boundary  is in the field of homeowner association management.  What does “the practice of law” include in this industry?

The line is not always clear.  The Florida Bar has already had a meeting on this question, and is expected to issue an advisory opinion in September addressing  the following actions:

1. Preparation of a Certificate of assessments due once the delinquent account is turned over to the association’s lawyer,

2. Preparation of a Certificate of assessments due once a foreclosure against the unit has commenced,

3. Preparation of Certificate of assessments due once a member disputes in writing to the association the amount alleged as owed,

4. Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members,

5. Determination of number of days to be provided for statutory notice,

6. Modification of limited proxy forms promulgated by the State,

7. Preparation of documents concerning the right of the association to approve new prospective owners,

8. Determination of affirmative votes needed to pass a proposition or amendment to recorded documents,

9. Determination of owners’ votes needed to establish a quorum,

10. Drafting of pre-arbitration demand letters required by 718.1255, Fla. Stat.,

11. Preparation of construction lien documents (e.g. notice of commencement, and lien waivers, etc.),

12. Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc.,

13. Identifying, through review of title instruments, the owners to receive pre-lien letters, and

14. Any activity that requires statutory or case law analysis to reach a legal conclusion.

Some of these activities also occur here in Idaho, but many are unique to Florida’s regulatory scheme.   I believe the definition of the practice of law has traditionally been narrower in Idaho.  According to the American Bar Association‘s list of state definitions:

Idaho State Bar v. Villegas, 879 P.2d 1124 (Idaho 1994)
This Court has defined the practice of law as: ‘The doing or performing services in a court of justice, in any matter depending [sic] therein, throughout its various stages, and in conformity with adopted rules of procedure. But in a larger sense, it includes legal advice and counsel, and the preparation of instruments and contracts by which legal rights are secured, although such matter may or may not be depending [sic] in a court.’
Idaho State Bar v. Meservy, 80 Idaho 504, 508, 335 P.2d 62, 65 (1959) (emphasis in original) (quoting In re Matthews, 57 Idaho 75, 83, 62 P.2d 578, 584 (1936)).

Any thoughts out there?

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