Sunday, October 7, 2018

Unauthorized Practice In Florida

The Florida Supreme Court adopted an advisory opinion on unauthorized law practice

The question presented for consideration by the Standing Committee is whether a nonlawyer company is engaged in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.; identifies and contacts owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court; offers the owners of excess proceeds a contingency arrangement using a purported assignment modified by an agreement to share the excess proceeds upon recovery, with the owner retaining a 60% interest in the excess proceeds; requests from the Clerk of Court the surplus funds based on the purported assignment; and files pleadings in interpleader actions to recover the surplus funds.

The answer

Here, JAR/Paine was representing Wall because Wall still had an interest in the litigation. This was not a situation where Wall signed over all of his interests in the proceeds of the sale to JAR/Paine so that JAR/Paine became the party to the action. Instead, JAR/Paine offered Wall a contingency fee agreement where Wall retained an interest in the proceeds of the sale as he stood to gain 60% from any recovery. Wall was, therefore, a party to the action and was being represented by JAR. By so representing Wall, JAR/Paine engaged in the unlicensed practice of law.

Conclusion

It is the opinion of the Standing Committee on the Unlicensed Practice of Law that a nonlawyer company is engaged in the unlicensed practice of law when it holds itself out as having special knowledge on how to recover excess proceeds from a tax deed sale held by the Clerk of Court under Chapter 197, Fla. Stat.; identifies and contacts owners of excess tax deed sale proceeds for the purpose of offering to recover the excess proceeds on their behalf from the Clerk of Court; offers the owners of excess proceeds a contingency arrangement using a purported assignment modified by an agreement to share the excess proceeds upon recovery, with the owner retaining a 60% interest in the excess proceeds; requests from the Clerk of Court the surplus funds based on the purported assignment; and file pleadings in interpleader actions to recover the surplus funds.

The Standing Committee is not sitting as the trier of fact in this matter. Should this Court adopt the Standing Committee’s proposed formal advisory opinion, it would establish the precedent required by Goldberg and be the standard to be applied by the trier of fact in ultimately deciding whether the defendants engaged in the unlicensed practice of law.

Chief Justice Canady dissented and concludes that the court has no authority to issue "advisory opinions regarding pending litigation contemplated by rule 10-9.1." (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/10/the-florida-supreme-court-adopted-an-advisory-opinion-on.html

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