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.
Jennifer L. Darley is a paralegal and an office manager. She has dedicated the last 15 years of her career working in law firms with various areas of practice. She has an Associates in Arts degree in Political Science. Mrs. Darley is expected to graduate with her Bachelor’s in Arts degree in Interdisciplinary Studies this August. After she completes her degree, she plans to continue her education and pursue her goal of becoming an attorney by attending law school.
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