265 So. 3d 447
Fla.2018Background
- Petitioner James Wall sought a Goldberg advisory opinion alleging Jupiter Asset Recovery, LLC (JAR) and Jeffrey Paine engaged in the unlicensed practice of law (UPL) while recovering tax-deed surplus funds in a Manatee County interpleader action.
- Wall signed an "Absolute Assignment" and a contemporaneous "Agreement" under which Wall would retain 60% of any recovered surplus and JAR would receive 40% on contingency; the Agreement was not disclosed to the Clerk or court.
- JAR filed only the Absolute Assignment with the Clerk and also filed pleadings in the interpleader action asserting JAR’s claim to the surplus; Paine prepared documents and drafted a letter for Wall to send to the Clerk’s attorney.
- Wall alleged Paine/JAR held themselves out as having special knowledge and that Paine held himself out as an attorney on JAR’s website.
- The circuit court stayed the interpleader action pending this Court’s determination under Goldberg v. Merrill Lynch; the Standing Committee held a public hearing and issued a proposed advisory opinion that, if the alleged facts are taken as true, JAR’s conduct would constitute UPL.
- The Florida Supreme Court approved the Standing Committee’s proposed advisory opinion; Chief Justice Canady dissented, arguing the Court lacks authority to issue such advisory opinions for pending litigation under rule 10-9.1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JAR’s conduct (soliciting owners, using assignments/agreements, filing pleadings) constitutes the unlicensed practice of law | Wall: JAR held itself out as having legal expertise, represented owners in court, and prepared legal documents affecting legal rights | JAR: (argued in briefs opposing opinion) its actions were contractual/transfer transactions, not legal representation (asserted it did not practice law) | Court approved Standing Committee: taken as true, these facts constitute UPL (holding out, representation in court, preparation of legal documents) |
| Whether nonlawyer holding himself out as an attorney or as having special legal expertise is UPL | Wall: Paine’s website and solicitation implied attorney status/expertise | JAR: contested characterization; claimed not an attorney and not practicing law | Held: Holding out as attorney or legal specialist by nonlawyer is UPL (citing precedent) |
| Whether preparing and filing documents that affect legal rights constitutes UPL | Wall: JAR drafted pleadings and consent/default language affecting Wall’s rights | JAR: claimed documents were assignments/transfers, not legal advocacy | Held: Preparing legal documents beyond clerical completion constitutes UPL |
| Procedural: Whether the Court should issue a Goldberg advisory opinion while underlying case is stayed | Wall: Goldberg permits Standing Committee opinion when action is stayed | JAR: opposed proposed advisory opinion (argued court should not adopt it) | Held: Under amended rule 10-9.1 and Goldberg, Court exercised jurisdiction and approved the advisory opinion; Chief Justice dissented on authority grounds |
Key Cases Cited
- Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010) (requires this Court to rule on novel UPL issues and authorizes Goldberg advisory opinions when underlying suit is stayed)
- The Fla. Bar v. Warren, 655 So.2d 1131 (Fla. 1995) (nonlawyers may not hold themselves out as attorneys)
- The Fla. Bar v. Gordon, 661 So.2d 295 (Fla. 1995) (prohibits nonlawyers from implying they are licensed to render legal assistance)
- The Fla. Bar v. Davide, 702 So.2d 184 (Fla. 1997) (enjoins nonlawyers from advertising or implying legal expertise)
- The Fla. Bar v. Smania, 701 So.2d 835 (Fla. 1997) (nonlawyer may not appear in court on behalf of others)
- The Fla. Bar v. Eubanks, 752 So.2d 540 (Fla. 1999) (enjoins nonlawyer from representing litigants in court proceedings)
- The Fla. Bar v. Snapp, 472 So.2d 459 (Fla. 1985) (nonlawyer engaged in UPL by representing others in court)
- The Fla. Bar v. Strickland, 468 So.2d 983 (Fla. 1985) (enjoins nonlawyer from court appearances for others in family law matters)
- The Fla. Bar v. Rich, 481 So.2d 1221 (Fla. 1986) (nonlawyer cannot represent others in eviction/criminal matters)
- The Fla. Bar v. Sperry, 140 So.2d 587 (Fla. 1962) (preparation of legal instruments by nonlawyers can constitute UPL)
- The Fla. Bar v. Brumbaugh, 355 So.2d 1186 (Fla. 1978) (reliance on nonlawyer to prepare legal forms may be UPL)
- The Fla. Bar v. Miravalle, 761 So.2d 1049 (Fla. 2000) (preparing legal documents beyond clerical transcription is UPL)
- The Fla. Bar v. Williams, 388 So.2d 564 (Fla. 1980) (nonlawyer may not assist customers in preparing court/government submissions)
- The Fla. Bar v. Moses, 380 So.2d 412 (Fla. 1980) (regulating practice of law centers on protection of public from incompetent or unethical representation)