Welcome to Florida Corporate- a Service of Blue Planet Offices, Inc. --
Blue Planet Offices, Inc. Logo Trademark
FloridaCorporate.com

Florida Incorporation,
Business Attorney
& Resource Gateway

HOME

How to Incorporate

Limitations of Incorporation

Trademarks/Copyright

8 Things to Do First

Registered Agents

Selling Stock

Incorporation Kit Info
Buy Incorporation Kits
Buy Stock Certificates

Attorney- Incorporation

Attorney- Business Representation

Attorney- Intellectual Property Law

Attorney- Labor Law

Attorney- Insurance & Liability

Business Brokers in Florida - Selling Your Business

Attorney- Bankruptcy

Business Insurance in Florida

Barcodes for Retail Products

List Your Legal Practice

Advertise on FloridaCorporate

Links to Related Sites

Webmasters- Link to Us

Unauthorized Practice of Law

Case Law Examples
2004 Fla. LEXIS 641,*;883 So. 2d 1280;
29 Fla. L. Weekly S 187
THE FLORIDA BAR, Petitioner, vs. WE THE PEOPLE FORMS AND SERVICE CENTER OF
SARASOTA, INC., et al., Respondents.
No. SC02-1675
SUPREME COURT OF FLORIDA
883 So. 2d 1280; 2004 Fla. LEXIS 641; 29 Fla. L. Weekly S 187
April 29, 2004, Decided
SUBSEQUENT HISTORY:
[*1] Rehearing denied by Fla. Bar v. We the People Forms & Serv. Ctr. of Sarasota, Inc., 2004 Fla. LEXIS 1734 (Fla., Sept. 27, 2004)

PRIOR HISTORY:
Original Proceeding - The Florida Bar.
DISPOSITION:

Referee's recommendation enjoining Respondents from engaging in practice of law approved. Respondents jointly and severally assessed monetary penalties. COUNSEL: Don Wich, Chair, Standing Committee on Unlicensed Practice of Law, John F. Harkness, Jr., Executive Director, and Lori Holcomb, Unlicensed Practice of Law Counsel, The Florida Bar, Tallahassee, Florida; and Loretta Comiskey O'Keeffe, Branch Counsel, Unlicensed Practice of Law Department, Tampa, Florida, for Complainant.

Robert A. Norgard, Bartow, Florida, for Respondents.
OPINION

PER CURIAM.

We review a referee's report recommending that respondents, We The People Forms and Service Center of Sarasota, Inc., ("WTP/Sarasota") and Danielle Kingsley be enjoined from engaging in the unlicensed practice of law (UPL). We have jurisdiction. See art. V, 15, Fla. Const. We approve the referee's findings of fact and conclusion of law that respondents have engaged in UPL in Florida, and we enjoin such practice in the future. We further approve the referee's recommendation that respondents be jointly and severally assessed a monetary penalty of $ 9000.

FACTS

On July 26, 2002, The Florida Bar filed a Petition Against the Unlicensed Practice of Law [*2] against respondents. The petition alleged that respondents had engaged in nine counts of UPL. The nine counts involved numerous separate incidents. The Bar sought an injunction as well as $ 9000 in monetary penalties against respondents.

The referee granted the Bar's motion for judicial notice and its motion to deem matters admitted. Respondents also agreed to the entry of summary judgment in the proceedings before the referee. After holding a hearing on costs and penalties, the referee issued a report finding that there was no dispute of fact as to the following:

1. Respondent Kingsley and Respondent WTP/Sarasota were not and are not members of The Florida Bar and . . . they were not and are not licensed to practice law in Florida.

2. Respondents advertise legal form preparation services beyond the business activities of typing legal forms and notary services, and selling legal forms and general printed information.

3. Respondents offered legal services directly to their customers by employing a licensed Florida attorney, Robert A. Norgard, to give legal advice to Respondents' customers.

4. In the matter of Scott Edward Drage v. Tonya Drage, Case No. 2001- DR-3187-NC [*3] (Fla. Cir. Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to Scott Edward Drage in the preparation of his dissolution of marriage.

5. In the matter of William H. Schwaab, III v. Catherine A. Schwaab, Case No. 2001-DR-9314-NC (Fla. Cir. Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to William H. Schwaab, III, regarding his dissolution of marriage.

6. In the matter of In Re Lett, Case No. 01-11545-8G7 (Bankr. M.D. Fla.), Respondents provided Thelma M. Lett with legal advice, legal services and personal legal assistance in the preparation of a bankruptcy proceeding.

7. Ronald L. Russell received legal advice, legal services and personal legal assistance from Respondents in the preparation of living trust documents.

8. In the matter of Bernard Flynt Johnson, Jr. v. Patricia Lee Johnson, Case No. 2001-DR-3921-NC (Fla. Cir. Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to Bernard Flynt Johnson, Jr. concerning his dissolution of marriage.

9. In the matter of In re St. George, Case No. 01-10783-8W7 (Bankr. M.D. Fla. [*4] ), Respondents provided John Allen St. George with legal advice, legal services and personal legal assistance in preparation of a bankruptcy.

10. In the matter of In re Plush, Case No. 01-10312-8B7 (Bankr. M.D. Fla.), Respondents provided legal advice, legal services and personal legal assistance to Christina Plush in regards to the preparation of a bankruptcy.

11. In the matter of In re Manbeck, Case No. 01-02357-8W7 (Bankr. M.D. Fla.), Respondents provided Mr. and Mrs. Mark Manbeck with legal advice, legal services and personal legal assistance in the preparation of a bankruptcy.

12. Respondent Kingsley contacted opposing parties and the attorneys for opposing parties on behalf of customers in reference to legal matters.Based on the foregoing, the referee concluded that respondents had engaged in the unlicensed practice of law in Florida in violation of the decisions of this Court by (1) providing customers with legal assistance in the selection, preparation, and completion of legal forms; (2) correcting customers' errors or omissions; (3) preparing or assisting in the preparation of pleadings and other legal documents for their customers; (4) corresponding with [*5] opposing parties or the attorneys of opposing parties as the representative of a customer in a legal matter; (5) hiring a licensed Florida attorney to provide legal advice to respondents' customers; (6) holding a licensed Florida attorney out to their customers as respondents' supervising attorney; and (7) advertising their services in such a way that led the public to believe that respondents were capable of providing legal services.

In light of these conclusions, the referee recommended:

A. That We The People Forms and Service Center of Sarasota, Inc. and Danielle Kingsley be found to have engaged in the unlicensed practice of law in the State of Florida.

B. That We The People Forms and Service Center of Sarasota, Inc. and Danielle Kingsley be restrained and enjoined from engaging in the following activities:

1. Holding themselves out to the public in such a manner that the public places some reliance on [Respondents] to properly prepare legal documents;

2. Representing to the public, either personally or by use of advertisement, that We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley, or any persons that [are] either employed by or who act [*6] in concert with Respondents, that they are capable of advising and handling matters requiring legal skills;

3. Advertising any legal form preparation services beyond the business activities of typing legal forms and notary services, and selling legal forms and general printed information;

4. Advertising in a manner which suggests to the public that the services offered by We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley are the equivalent of or a substitute for the services of an attorney;

5. Advertising in any fashion which may lead a reasonable lay person to believe that We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley offer to the public legal service, legal advice or personal legal assistance regarding any legal matter;

6. Completing forms or assisting in the completion of forms that are not simplified forms approved by the Supreme Court of Florida, except to the extent permitted by The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978);

7. Providing personal services in the preparation of legal documents that goes beyond selling forms, typing forms, providing written information or providing [*7] secretarial or notary services;

8. Preparing or assisting in the preparation of any pleadings, motions, legal memoranda, arguments, briefs, notices, or any other legal documents or pleadings for another person;

9. Using the title paralegal or legal assistant unless Respondent Kingsley is working for and under the supervision of a member of The Florida Bar and performs specifically delegated substantive legal work for which a member of The Florida Bar is responsible;

10. Offering legal services directly to the public by employing a member of The Florida Bar to provide the lawyer supervision required by Rule 10-2.1(b) of the Rules Regulating The Florida Bar;

11. Giving advice and making decisions on behalf of another person that requires legal skill and a knowledge of the law greater than that possessed by the average citizen;

12. Giving legal advice to another person concerning the application, preparation, advisability, or quality of any legal instrument or document or forms thereof in connection with any legal proceeding or procedure;

13. Construing or interpreting the legal effect of Florida or Federal laws and statutes for another person, as those laws relate to any legal [*8] matter including probate, dissolution of marriage and bankruptcy matters;

14. Giving advice and/or explaining legal remedies and options to another person that affects their procedural and substantive legal rights, duties and privileges;

15. Having direct contact with another person in the nature of consultation, explanation, recommendation, advice and assistance in the provision, selection and completion of preprinted legal forms;

16. Initiating and controlling a lawyer-client relationship, setting fees and paying an attorney to do work for a third party;

17. Engaging in any personal legal assistance in the preparation of legal forms including correcting customer's errors or omissions or providing customers with any assistance in preparing the forms other than mere typing;

18. Advising another person as to the need for a will or living trust and related documents and/or identifying the type of will or living trust and related documents most appropriate for another person;

19. Assembling and/or drafting a will, living trust, deed, durable power of attorney or related documents for another person;

20. Executing and/or advising on the execution of a will, living trust, deed, [*9] durable power of attorney or related documents for another person;

21. Funding and/or advising on the funding of a living trust for another person;

22. Otherwise directly or indirectly through other persons engaging in the practice of law in the State of Florida until licensed to do so.

C. That the costs of this proceeding be taxed against Respondents jointly and severally.

D.That Respondents should be jointly and severally assessed a monetary penalty of $ 9000.00, payable to the Supreme Court of Florida.

On September 24, 2003, respondents filed with this Court objections to the referee's report.

ANALYSIS

Having reviewed the record, we conclude that competent, substantial evidence exists to support the referee's factual findings. We further conclude that under our case law, respondents' actions constitute the unlicensed practice of law. See, e.g., Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998) (holding that a nonlawyer who has direct contact with individuals in the nature of consultation, explanation, recommendations, advice, and assistance in the provision, selection, and completion of legal forms engages in the unlicensed practice of law); [*10] Florida Bar v. Becerra, 661 So. 2d 299 (Fla. 1995) (enjoining a nonlawyer from advertising in any fashion that may lead a reasonable lay person to believe that the nonlawyer may offer to the public legal services, legal advice, or personal legal assistance); Florida Bar v. Consol. Bus. & Legal Forms, Inc., 386 So. 2d 797 (Fla. 1980) (holding that a corporation engaged in the unlicensed practice of law where its officers and stockholders were nonlawyers with no legal training who supervised and maintained a degree of control over the legal services it furnished through its lawyer employees and noting the inherent conflict of interest between the legal needs of the client and the monetary policy of the corporation and how such a business structure permits unlicensed and unregulated persons to profit from the providing of services which by law they are prohibited from providing); Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1194 (Fla. 1978) (holding that while a nonlawyer may sell certain legal forms and type up instruments completed by clients, a nonlaywer "must not engage in personal legal assistance in conjunction with her business activities, [*11] including the correction of errors and omissions"). n1 We conclude that respondents may be enjoined from engaging in such behavior.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1.

Further, by agreeing to the entry of summary judgment, respondents effectively stipulated to the Bar's factual allegations and stipulated that, as a matter of law, respondents' conduct constitutes the unlicensed practice of law. Therefore, we find respondents' attempts at this time to challenge the referee's conclusion that their conduct constitutes the unlicensed practice of law to be improper.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

We now turn to the issue of the recommended $ 9000 penalty against respondents. In 2000, Rule Regulating the Florida Bar 10-7.1 was amended to permit a referee in a UPL proceeding to recommend "the imposition of a civil penalty not to exceed $ 1000 per incident." See Amendments to the Rules Regulating the Florida Bar, 763 So. 2d 1002, 1033 (Fla. 2000). In this case, after holding a hearing and finding that respondents engaged in the unlicensed practice of law, the referee [*12] recommended the assessment of nine $ 1000 fines, one for each count of UPL set forth in the Bar's petition.

We conclude that the facts of the instant proceeding justify imposition of the penalty. The record clearly shows that respondents engaged in numerous acts of UPL. Further, at the hearing on costs and penalties, the Bar stated that WTP/Sarasota is "operating as usual." Thus, it seems that WTP/Sarasota has been unfazed by the possibility that penalties may be imposed upon it in the instant proceeding. In light of the foregoing, we approve the referee's recommendation that respondents We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley be jointly and severally assessed a monetary penalty of $ 9000.

CONCLUSION

Accordingly, we approve the referee's report in its entirety, and we hereby enjoin respondents We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley from engaging in the unlicensed practice of law in the State of Florida, including those activities specified in the referee's report and quoted above. We further approve the referee's recommendation that respondents be jointly and severally assessed a monetary [*13] penalty of $ 9000, made payable to the Supreme Court of Florida. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley, jointly and severally, in the amount of $ 4,455.87, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

-------------------------------------------------------------------------

2003 Fla. LEXIS 250,*;845 So. 2d 874;
28 Fla. L. Weekly S 174
THE FLORIDA BAR, Complainant, vs. ALBERT A. RAPOPORT, Respondent.
No. SC01-73
SUPREME COURT OF FLORIDA
845 So. 2d 874; 2003 Fla. LEXIS 250; 28 Fla. L. Weekly S 174
February 20, 2003, Decided
SUBSEQUENT HISTORY:

[*1]
Rehearing denied by Fla. Bar v. Rapoport, 2003 Fla. LEXIS 793 (Fla., May 6, 2003) US Supreme Court certiorari denied by Rapoport v. Fla. Bar, 2003 U.S. LEXIS 7740 (U.S., Oct. 20, 2003)

PRIOR HISTORY: The Florida Bar v. Rapoport, 732 So. 2d 329, 1999 Fla. LEXIS 692 (Fla., 1999) DISPOSITION:

Enjoined from engaging in the practice of law in Florida.
COUNSEL: John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; R. Lee Bennett, Chair, Standing Committee on Unlicensed Practice of Law, Tallahassee, Florida; Lori S. Holcomb, Unlicensed Practice of Law Director, The Florida Bar, Tallahassee, Florida; and Janet Bradford Morgan, Bar Counsel, Fort Lauderdale, Florida, for Complainant.

Ainslee R. Ferdie of the Law Offices of Ainslee R. Ferdie, Coral Gables, Florida, for Respondent.
JUDGES: ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, and CANTERO, JJ., concur. SHAW, Senior Justice, dissents with an opinion, in which QUINCE, J., concurs.

OPINION
PER CURIAM.

Original Proceeding - The Florida Bar

We have for review a referee's report finding as a matter of law that respondent, Albert A. Rapoport, engaged in the unlicensed practice of law. We have jurisdiction. See art. V, 15, Fla. Const.

Rapoport is licensed to practice law in Washington, D.C. He is a member in good standing of the bars of the Supreme Court of the United States and the District [*2] of Columbia Court of Appeals. He is not a member of The Florida Bar.

The Bar filed its petition for an injunction in January 2001, claiming that Rapoport was engaged in the unlicensed practice of law (UPL) because he (1) represents parties in Florida in securities arbitration proceedings by entities such as the American Arbitration Association, the National Association of Securities Dealers, and the New York Stock Exchange; and (2) advertises his securities arbitration services in the Fort Lauderdale Sun-Sentinel. n1 The Court issued an order to show cause on January 29, 2001. Rapoport responded to the order to show cause. Although it appeared to the Court at that time that Rapoport admitted the material allegations in The Florida Bar's petition, the Court referred the matter to a referee for determination of any questions of fact. See R. Regulating Fla. Bar 10-7.1(b)(6).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

The petition also included an allegation that Rapoport formerly advertised as an attorney in Florida on the American Association of Retired Persons website. However, because the Bar did not include that claim in its motion for summary judgment and the referee made no findings as to that claim, we deem it abandoned and have not considered that allegation in our disposition of this case.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*3] After discovery was propounded by both parties, including the Bar's request for admissions, the Bar filed a motion for summary judgment, alleging that there were no material facts in dispute. n2 The referee granted summary judgment, making the following findings of undisputed facts: Rapoport (1) is not a licensed Florida attorney; (2) operates a law practice in Florida and represents persons in securities arbitration matters; (3) advises clients about the legal merits of their securities arbitration claims; (4) prepares, signs, and files securities arbitration claims for his clients; (5) represents his clients in securities arbitration proceedings; (6) offers advice and representation to stockbrokers defending claims in securities arbitration; and (7) has, in the past, advertised in the Sun-Sentinel his availability to represent persons in securities arbitration proceedings.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2

As "Appendix A" to its motion, the Bar attached this Court's unpublished order dated April 15, 1999, approving a stipulation for permanent injunction in case no. 94,049, Florida Bar v. Rapoport, 732 So. 2d 329 (Fla. 1999). According to the stipulation, Rapoport agreed not to practice law in Florida unless "authorized to do so by state or federal law, statute, rule, regulation, or decision."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*4] Based on these findings of fact, the referee concluded that (1) Rapoport is a nonlawyer in Florida and cannot operate a law practice or engage in the general practice of law in Florida; (2) Rapoport has engaged in the practice of law by giving legal advice and consultation to clients, by drafting, signing, and filing securities arbitration claims for clients, and by representing clients in securities arbitration proceedings; (3) no federal or state law authorizes Rapoport as a nonlawyer to provide legal services and advice in securities arbitration matters; (4) Florida maintains its substantial interest and authority to prohibit UPL to protect the public; (5) Rapoport has advertised his availability to represent parties in securities arbitration proceedings; and (6) Rapoport has engaged in UPL and is subject to injunction.

Rapoport does not contend that any of these material facts are in dispute. Rather, Rapoport claims that the Federal Arbitration Act, 9 U.S.C. 1 - 307 (2000), (FAA) preempts state law n3 and that Florida has no authority to forbid an attorney from acting in Florida for parties in federal securities matters.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3

The Federal Arbitration Act, 9 U.S.C. 1 - 307 (2000), was enacted in 1925. See Pub. L. No. 68-401, 43 Stat. 883 (1925). "The Act was designed 'to overrule the judiciary's longstanding refusal to enforce agreements to arbitrate,' and place such agreements 'upon the same footing as other contracts.'" Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 474, 103 L. Ed. 2d 488, 109 S. Ct. 1248 (1989) (citations omitted). Securities arbitration agreements are subject to the Federal Arbitration Act. See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 96 L. Ed. 2d 185, 107 S. Ct. 2332 (1987).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*5] In Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 10 L. Ed. 2d 428, 83 S. Ct. 1322, 1963 Dec. Comm'r Pat. 211 (1963), the United States Supreme Court, although acknowledging Florida's substantial interest in regulating the practice of law within the state, held that Florida could not enjoin a nonlawyer registered to practice before the U.S. Patent Office from preparing and prosecuting patent applications in Florida because a federal statute and Patent Office regulations authorized the practice. Rapoport provides a long list of federal cases concerning securities arbitration that involve preemption of state law by the FAA. n4 None of the cases, however, concerns the authorization of the practice of law in securities arbitration proceedings.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4

See Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L. Ed. 2d 902, 116 S. Ct. 1652 (1996); Southland Corp. v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984); Doctor's Associates, Inc. v. Hamilton, 150 F.3d 157 (2d Cir. 1998); Ferro Corp. v. Garrison Indus., Inc., 142 F.3d 926 (6th Cir. 1998); Olde Discount Corp. v. Tupman, 1 F.3d 202 (3d Cir. 1993); Saari v. Smith Barney, Harris Upham & Co., 968 F.2d 877 (9th Cir. 1992); David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London), 923 F.2d 245 (2d Cir. 1991); Saturn Distribution Corp. v. Williams, 905 F.2d 719 (4th Cir. 1990); Securities Indus. Ass'n v. Connolly, 883 F.2d 1114 (1st Cir. 1989); Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282 (9th Cir. 1988), overruled by Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931(9th Cir. 2001); Cent. Jersey Freightliner, Inc. v. Freightliner Corp., 987 F. Supp. 289 (D. N.J. 1997); Morrison v. Colo. Permanente Med. Group, P.C., 983 F. Supp. 937 (D. Colo. 1997); Johnson v. Hubbard Broad., Inc., 940 F. Supp. 1447 (D. Minn. 1996); Haluska v. RAF Fin. Corp., 875 F. Supp. 825 (N.D. Ga. 1994); Medika Int'l, Inc. v. Scanlan Int'l, Inc., 830 F. Supp. 81 (D. P.R. 1993); Matter of Management Recruiters Int'l, Inc. and Nebel, 765 F. Supp. 419 (N.D. Ohio 1991); Seymour v. Gloria Jean's Coffee Bean Franchising Corp., 732 F. Supp. 988 (D. Minn. 1990); Reed v. Bear, Stearns & Co., 698 F. Supp. 835 (D. Kan. 1988); Russolillo v. Thomson McKinnon Securities, Inc., 694 F. Supp. 1042 (D. Conn. 1988); In re Pate, 198 B.R. 841 (Bankr. S.D. Ga 1996).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*6] Florida Bar re Advisory Opinion on Nonlawyer Representation in Securities Arbitration, 696 So. 2d 1178 (Fla. 1997), is directly on point. In that case, this Court held that it was unlicensed practice of law for nonlawyers in securities arbitration proceedings to give specific legal advice and perform the traditional tasks of the lawyer at arbitration proceedings. Rapoport admittedly has engaged in the traditional tasks of the lawyer--giving of legal advice, preparing and submitting claims, representing clients in proceedings, advertising his ability to represent clients--in securities arbitration proceedings in Florida. He is a nonlawyer in Florida under Rule Regulating the Florida Bar 10-2.1(c), which provides in pertinent part:

For purposes of this chapter, a nonlawyer or nonattorney is an individual who is not a member of The Florida Bar. This includes, but is not limited to, lawyers admitted in other jurisdictions, law students, law graduates, applicants to The Florida Bar, disbarred lawyers, and lawyers who have resigned from The Florida Bar.As a nonlawyer, Rapoport is not authorized to practice law in Florida.

Although Rapoport does not point to [*7] any material issues that are in dispute, he claims that the referee erred in entering summary judgment without holding a hearing. He points to the language of Florida Rule of Civil Procedure 1.510(c), which provides that a motion for summary judgment "shall be served at least 20 days before the time fixed for hearing."

We previously have held that a referee in a UPL case has the authority to enter summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Florida Bar v. Miravalle, 761 So. 2d 1049, 1051 (Fla. 2000). Furthermore, the standard of review on summary judgment orders is de novo. See Florida Bar v. Cosnow, 797 So. 2d 1255, 1258 (Fla. 2001). Lastly, we are aware that rule 1.510(c) has been interpreted to require hearings on motions for summary judgments. See Kozich v. Hartford Ins. Co. of Midwest, 609 So. 2d 147, 148 (Fla. 4th DCA 1992).

We deem it unnecessary to reach the issue of whether rule 1.510(c) mandates a hearing before summary judgment may be entered in a civil proceeding if there has been adequate notice and an opportunity to be heard, and [*8] the party opposing the summary judgment has failed to show that there are any material issues in dispute. Unlike other proceedings, this Court has original jurisdiction over petitions against the unlicensed practice of law. See R. Regulating Fla. Bar 10-1.1. The Court does not automatically refer UPL petitions to referees. Referral to a referee is made only if the respondent raises issues of disputed fact after we have issued an order to show cause. See R. Regulating Fla. Bar 10-7.1(b)(6) ("The court may, upon its motion or upon motion of any party, enter a judgment on the pleadings or refer questions of fact to a referee for determination.").

In this case, as noted above, referral to a referee was made after a response was filed because it appeared that Rapoport may have been asserting some disputed issues of fact. However, in the proceedings before the referee, and in the multiple pleadings filed with this Court, including Rapoport's initial brief and reply brief, Rapoport has failed to demonstrate the existence of even a single disputed fact--much less a material one. Accordingly, Rapoport had no right to even have a referee hear The Florida Bar's petition against the unlicensed [*9] practice of law unless there were disputed issues of material fact. Once Rapoport filed his response to our order to show cause, this Court had the discretion to enter judgment on the pleadings or to refer questions of fact to a referee. See R. Regulating Fla. Bar 10-7.1(b)(6). Because there are no disputed issues of material fact raised by Rapoport, the referee's decision not to hold a hearing before entering summary judgment in this case was proper. n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5

The dissent asserts that Rapoport's due process rights were violated when the referee refused to continue the proceedings, even though Rapoport recently underwent heart surgery. The dissent further asserts that there were disputed issues of fact that Rapoport never had an opportunity to present to the referee. However, a review of the record demonstrates that Rapoport had multiple opportunities to raise factual disputes. The Bar's motion for summary judgment was served by mail on August 17, 2001. Rapoport's motion to halt proceedings was signed by him on August 30, raising his recent heart surgery as a basis for the request. Despite the fact that the motion for summary judgment had already been served, he did not raise any issues of fact in dispute that would have provided the referee cause to continue the proceedings. Further, after the referee denied this motion, Rapoport filed a motion to reconsider on September 10, 2001, that only made a bare assertion that there were material issues of fact in dispute, without naming a single specific fact that was in dispute to give the referee a basis to reconsider. Perhaps most significantly, in his numerous pleadings before this Court Rapoport still does not assert that there are material issues of fact in dispute that the referee must resolve. Therefore, Rapoport has had ample opportunity to be heard. His challenge to the Bar's proceedings is one that involves issues of law and not disputed issues of fact. Hence, his due process rights have not been violated.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*10] Rapoport received both notice and an opportunity to be heard before this Court. There are no material issues of disputed fact, and based on Rapoport's admissions that he is engaged in representing parties in securities arbitration in this state we conclude that, as a matter of law, Rapoport is engaged in the unlicensed practice of law.

Rapoport also objects to the referee's recommended assessment of costs in the amount of $ 530.40. Rule Regulating the Florida Bar 10-7.1(d)(2) gives the referee discretion to recommend the assessment of costs, including the investigative costs and court reporter's fees requested in this action. Rapoport has demonstrated no abuse of discretion by the referee. Therefore, we approve the assessment of costs as recommended.

Accordingly, respondent, Albert A. Rapoport, is hereby enjoined from engaging in the practice of law in Florida, including specifically the representation of parties in securities arbitration proceedings in this state, until he is duly licensed to practice law in Florida. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300, for recovery of costs from Albert A. Rapoport, in the amount of $ 530.40, [*11] for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, and CANTERO, JJ., concur.

SHAW, Senior Justice, dissents with an opinion, in which QUINCE, J., concurs.

DISSENT BY: SHAW
DISSENT
SHAW, Senior Justice, dissenting.

I respectfully dissent because I believe that there was a violation of Rapoport's constitutional right to due process. As Florida courts have consistently recognized, due process entitles a litigant to notice and an opportunity to be heard. n6

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6

See, e.g., Florida Bar v. Fredericks, 731 So. 2d 1249, 1254 (Fla. 1999) ("Accordingly, because Fredericks was made aware of the conduct alleged by the Bar to be unethical and had the opportunity to be heard as to this conduct, there was no violation of due process."); Florida Bar v. Rubin, 709 So. 2d 1361, 1363 (Fla. 1998) ("Prior to being found guilty of the charges at issue here, Rubin was afforded appropriate notice and a full opportunity to be heard during the final hearing before the referee. This was sufficient to satisfy the demands of due process."); see also Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 655, 85 L. Ed. 2d 652, 105 S. Ct. 2265, 17 Ohio B. 315 (1985) (holding that where appellant was put on notice of disciplinary charges against him and was afforded opportunity to respond to board's recommendation, demands of due process were satisfied); In re McKay, 280 Ala. 174, 191 So. 2d 1, 5 (Ala. 1966) ("An attorney must be accorded due process in . . . disciplinary proceedings, and the requirements of due process are met when the attorney is served with charges or specifications reasonably informing him of the charges against him and the attorney is thereafter accorded a hearing with an opportunity to defend.").

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*12] While representing himself, Rapoport requested that the referee continue his case since he had undergone three-vessel coronary artery bypass surgery, was still suffering from cardiac arrhythmias, and was under instructions from his doctor to avoid all undue stress. A copy of his doctor's instructions was attached to the motion. When his request for a continuance was denied, Rapoport asked that the referee reconsider his decision and permit him an opportunity to recover from his surgery so that he could "fully and properly prepare his response" to the Bar's motion for summary judgment. He asserted that there were material issues of fact in dispute and that he should be available in approximately one month. n7 The referee denied this motion and five days later issued an order granting summary judgment in favor of the Bar. n8

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7

The majority opinion seems to suggest that Rapoport, who was proceeding pro se at the time, should have spelled out the disputed issues of fact in his request for a continuance. I find this reasoning disingenuous for if Rapoport was able to formulate his research and submit his issues of disputed fact, then he would not need a motion for continuance at all. [*13] 8

Interestingly, after the referee denied both of Rapoport's requests for a continuance, the referee requested an extension from this Court based on Rapoport's illness. This Court granted the request and extended the time to file the referee's report until November 28, 2001.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The decision to grant or deny a motion for continuance is a matter of discretion that will normally not be disturbed. n9 In this instance, however, where it was asserted that there were material issues of fact to be resolved and a continuance was requested because of serious medical problems, I feel that it was an abuse of discretion to deny the continuance and grant summary judgment without giving Rapoport a meaningful opportunity to respond. n10

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9

Florida Bar v. Lipman, 497 So. 2d 1165, 1167-68 (Fla. 1986) ("It is within the sound discretion of the referee, assigned by this Court to preside over a disciplinary proceeding such as this, to grant or deny a motion for continuance. Such a ruling will not be disturbed by this Court absent a clear abuse of discretion."). [*14] 10

See Greene v. Seigle, 745 So. 2d 411 (Fla. 4th DCA 1999) (holding that plaintiff's due process rights were violated when the trial court granted a summary judgment motion eight days after it was filed without providing the plaintiff with a sufficient opportunity to be heard); Mondestin v. Duval Fed. Sav. & Loan Ass'n, 500 So. 2d 580 (Fla. 4th DCA 1986) (holding that a party against whom a motion for summary judgment is filed is entitled to notice and a meaningful opportunity to be heard).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The majority opinion concludes that Rapoport is not entitled to relief because he received "both notice and an opportunity to heard before this Court." I do not believe that this constitutes a sufficient remedy. As noted above, Rapoport was not given an opportunity to submit disputed factual issues before the referee, and there are no provisions which permit him to present such disputed factual issues before this Court.

The majority opinion relies heavily on the fact that the referee's findings of fact were based on Rapoport's own admissions. A litigant's right [*15] to due process is not forfeited, however, because the most damaging evidence comes from his own confession or admissions. The right to be heard is fundamental, and Rapoport has been denied this right. For the above reasons, I dissent.

QUINCE, J., concurs.

----------------------------------------------------------------

2002 Fla. LEXIS 2459,*;833 So. 2d 752;
27 Fla. L. Weekly S 989
THE FLORIDA BAR, Complainant, vs. ERDON I. ABREU, Respondent.
No. SC01-2019
SUPREME COURT OF FLORIDA
833 So. 2d 752; 2002 Fla. LEXIS 2459; 27 Fla. L. Weekly S 989
November 27, 2002, Decided
PRIOR HISTORY:

[*1] Original Proceeding - The Florida Bar.
DISPOSITION:

Respondent enjoined from engaging in the practice of law in the State of Florida. COUNSEL: Donald A. Wich, Jr., Chair, Standing Committee on Unlicensed Practice of Law, Tallahassee, Florida; John F. Harkness, Jr., Executive Director and Lori Holcomb, Unlicensed Practice of Law Counsel, The Florida Bar, Tallahassee, Florida; and Loretta Comiskey O'Keefe, Branch Counsel, Unlicensed Practice of Law Department, Tampa, Florida, for Complainant.

No Appearance, for Respondent.
JUDGES: ANSTEAD, C.J., and SHAW, WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.
OPINION

PER CURIAM.

The Florida Bar has filed a motion pursuant to Rule Regulating the Florida Bar 10-7.1(b)(4) requesting that this Court issue an order enjoining respondent Erdon I. Abreu from engaging in the unlicensed practice of law. We have jurisdiction. See art. V, 15, Fla. Const.

FACTS

On September 12, 2001, The Florida Bar filed a petition against the unlicensed practice of law (UPL) alleging the following:

Erdon I. Abreu was not a member of the Florida Bar at all times material to the instant petition.

Count I. On June 28, 1999, Rachel Yanes sought Abreu's [*2] services in making a claim to the Immigration and Naturalization Service (INS) for temporary protected status (TPS). n1 Abreu identified himself as an attorney to Yanes and represented to her that he was qualified to provide assistance in immigration matters. Yanes paid Abreu $ 550 for the preparation and filing with INS of the necessary forms for TPS. Abreu prepared and filed an application for TPS on Yanes' behalf, as well as a work authorization form. Yanes' TPS application was "placed in suspense" by the INS because the personal check tendered by Abreu was rejected for insufficient fees. After Abreu's check "bounced," the INS contacted Yanes and requested payment of the fee plus a $ 30 service charge. The INS ultimately denied Yanes TPS when she was unable to repay the filing fee and service charge.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

The federal statute governing temporary protected status is 8 U.S.C. 1254a (2000). For an abbreviated explanation of TPS, see Immigration & Naturalization Service, Glossary & Acronyms, http://www.ins.usdoj.gov/graphics/glossary4.htm # T (last modified June 13, 2002).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*3] Count II. In May 1999, Dr. David Garcia and his wife, Andrea Lugo Garcia, (the Garcias) contacted Abreu to represent Mrs. Garcia in an upcoming immigration court hearing, and to help Dr. Garcia reopen his immigration case. Abreu stated that he would help the Garcias obtain their green cards and that he would represent Mrs. Garcia at her hearing. Abreu gave them a card identifying himself as "Director of the Alliance Legal Group, Licensed Legal Expense Agents, Family, Business, Group." The card listed services that included "Immigration services, Green Card-Citizenship, Relative Petition, Deportation Cases, Professional Visas-Appeals." The Garcias paid Abreu $ 3450 for his services. On July 29, 1999, Abreu represented Mrs. Garcia in an immigration hearing. After that, he told the Garcias that he would continue to prepare their documents, but he would no longer represent them in court. In November 1999, Dr. Garcia paid Abreu an additional $ 340 for filing fees. In or about June 2000, Abreu sent the Garcias a letter stating that he would no longer represent them and that they needed to find another attorney.

The Bar argues that Abreu's actions constitute UPL and present the [*4] potential for substantial public harm. The Bar asks this Court to issue a permanent injunction preventing and restraining Abreu from engaging in the acts complained of and otherwise engaging in the practice of law in Florida until he is duly licensed to practice law in this state. Finally, the Bar asks that this Court tax the costs of these proceedings against Abreu.

On October 16, 2001, this Court issued an order directing Abreu to show cause why he should not be enjoined from engaging in UPL. At first, service was not accomplished because Abreu had moved from his last known address. On February 22, 2002, this Court issued a second order to show cause. A private process server ultimately accomplished service and an affidavit of service was filed with this Court. Abreu did not respond to this Court's order to show cause. On May 20, 2002, the Bar filed a motion to decide the case upon its merits.

Under Rule Regulating the Florida Bar 10-7.1(b)(4), if a respondent in a UPL case fails to respond to an order to show cause issued by this Court, "the allegations of the petition [for injunctive relief filed by the Bar] shall be taken as true for purposes of that action." Further, "upon [*5] its motion or upon motion of any party, [the Court will] decide the case upon its merits." Since Abreu has elected not to respond to our order to show cause, we grant the Bar's motion and proceed to decide this case on its merits.

ANALYSIS

Accepting the allegations in the Bar's petition as true, we conclude that Abreu's conduct with Yanes and the Garcias constitutes the unlicensed practice of law. In Florida Bar v. Becerra, 661 So. 2d 299, 300 (Fla. 1995), the Bar and the respondent entered a joint stipulation agreeing that Becerra, a nonattorney, should be enjoined from engaging in various conduct, including the following: representing to the public that she or any of her employees were capable of advising on and handling matters requiring legal skills, allowing members of the public to rely on her to prepare legal forms or documents affecting their legal rights, and answering questions from individuals and entities as to which particular INS forms should be filed, how to fill out the forms or applications, or what supporting documentation should accompany the forms or applications. Most, if not all, of Becerra's UPL conduct occurred in the context of [*6] advising individuals as to immigration matters, because the stipulation provided that "the preparation of forms to effect a change in immigration status requires legal training and familiarity with immigration laws and that failure to properly prepare the forms could result in great harm, including deportation." Id. at 299. We approved the stipulation and concluded that Becerra had engaged in UPL, enjoining her permanently from engaging in the aforementioned conduct.

In the instant case, Abreu prepared and filed a TPS application for Yanes and assisted the Garcias in preparing documents related to obtaining green cards. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2

Although the Bar's statement that Abreu "prepared" forms and documents for Yanes and the Garcias is somewhat vague, and the term "prepare" can encompass a wide range of activities, it is highly unlikely that the Bar would have filed a UPL petition had Abreu been engaged in mere secretarial services, and the fees charged indicate the contemplation of more than clerical involvement. Further, even if he had been engaged in solely secretarial services, Abreu had ample opportunity to challenge or refute the Bar's allegations by filing a response to this Court's order to show cause, but elected not to do so.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*7] We conclude that under Becerra, Abreu's preparation and filing of immigration documents constitutes the unlicensed practice of law. See also Florida Bar v. Davide, 702 So. 2d 184, 185 (Fla. 1997) (preparation of legal documents by nonlawyer for another constitutes UPL); Florida Bar v. Rodriguez, 509 So. 2d 1111 (Fla. 1987) (nonattorney who filed immigration forms for clients engaged in the unlicensed practice of law).

Further, this Court has held that representing individuals at hearings before the INS, except to the extent INS regulations allow representation of the individual by a nonlawyer, constitutes UPL. See Florida Bar v. Corpa Immigration Services, 642 So. 2d 548 (Fla. 1994); Florida Bar v. Aberasturia, 529 So. 2d 690, 691 (Fla. 1988); Florida Bar v. Dobbs, 508 So. 2d 326 (Fla. 1987). Title 8 C.F.R. 292.1(a)(3) (2002), provides that a reputable individual of good moral character, who is not an attorney or a law student, may represent individuals in immigration proceedings, provided that the following conditions are met:

(i) He is appearing on an individual case basis, [*8] at the request of the person entitled to representation;

(ii) He is appearing without direct or indirect remuneration and files a written declaration to that effect;

(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and

(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.(Emphasis added.) n3 We conclude that Abreu does not fall under this provision of the code because he charged the Garcias $ 3450 for his services, which included representing Mrs. Garcia at an immigration hearing. Further, Abreu [*9] gave the Garcias a business card stating that he was director of the "Alliance Legal Group," which advertised the group as providing immigration services. In doing so, Abreu held himself out to be qualified to provide assistance in INS matters for remuneration. In light of these factors, we conclude that Abreu's representation of Mrs. Garcia at an INS hearing was not permitted under 8 C.F.R. 292.1(a)(3) and, therefore, constitutes the unlicensed practice of law.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3

General counsel for the INS has stated that the term "representation" has a very broad meaning in the context of INS law: "It includes activities which range from incidentally preparing papers for a person, to giving a person advice about his or her case, to appearing before the Service on behalf of a person." Role of Visa Consultants in the Practice of Immigration Law, Op. Gen. Couns. 92-29 (June 9, 1992).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Finally, Abreu's identifying himself to Yanes and the Garcias as an attorney and his possession of a business card identifying himself [*10] as the director of a legal group providing assistance in immigration matters constitutes UPL. In Florida Bar v. Matus, 528 So. 2d 895, 896 (Fla. 1988), this Court held that a respondent who maintained a business card representing himself as president of Latinoamericano De Inmagracion, Inc., and who listed his services as including, but not limited to, tourist visa extensions, student visas, political asylum, and residency had engaged in UPL. See also Becerra, 661 So. 2d at 300 (nonlawyer enjoined from advertising in any manner that would lead a reasonable lay person to believe that the respondent could offer legal services, legal advice, or legal assistance to the public in immigration and naturalization matters); Dobbs, 508 So. 2d at 327 (nonlawyer enjoined from representing to the public either personally or through advertisement that he was an attorney or was capable of advising on and handling matters requiring legal skills).

While this Court is expressly charged under the Florida Constitution with regulating and disciplining licensed members of The Florida Bar, we also have a duty to protect the public from laypeople who claim [*11] that they are licensed to practice law, but are not. See generally The Fla. Bar v. Neiman, 816 So. 2d 587, 599 (Fla. 2002) (noting that "just as the public must be protected from uneducated and unlicensed physicians in an operating room, the public must be protected from bogus attorneys seeking to profit from the problems of the innocent and uninformed . . . who may be taken in by a smooth but deceitful demeanor"). These nonattorneys advertise themselves as being capable of assisting individuals in their legal matters, but often end up inflicting serious harm upon unsuspecting persons. As noted in Becerra, UPL can have especially dire consequences in immigration matters because mismanagement of the client's case could result in deportation. In the instant case, Yanes had her TPS application denied because Abreu's check accompanying Yanes' application bounced and Yanes was unable to repay the filing fee and the service charge. The Garcias were left in a compromised position when Abreu suddenly informed them that he could no longer represent them, and they would have to find "another attorney." Abreu's conduct demonstrates a total lack of concern for the well-being [*12] of the individuals who trusted him. This Court has a duty to stop such abuse of members of the public.

Accordingly, respondent Erdon I. Abreu is hereby enjoined from engaging in the practice of law in the State of Florida until he is duly licensed to practice law in this state. Recognizing that the INS has the authority to decide when and to what extent nonattomeys may represent individuals before the Service, we limit this injunction to the extent that the INS allows such representation by nonattorneys. In the event Abreu engages in any of the prohibited conduct, he will be found in indirect criminal contempt of this Court. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Erdon I. Abreu, in the amount of $ 451.46, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and SHAW, WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

-------------------------------------------------------------------------------------

2000 Fla. LEXIS 924,*;761 So. 2d 1049;
25 Fla. L. Weekly S 404
THE FLORIDA BAR, Complainant, vs. CANDICE L. MIRAVALLE, etc., et al., Respondents.
No. SC93101
SUPREME COURT OF FLORIDA
761 So. 2d 1049; 2000 Fla. LEXIS 924; 25 Fla. L. Weekly S 404
May 18, 2000, Decided
SUBSEQUENT HISTORY:

Certiorari Denied December 11, 2000, Reported at: 2000 U.S. LEXIS 8338.

DISPOSITION:

[*1] Report of referee adopted Bar's motion for summary judgment granted. COUNSEL: John F. Harkness, Jr., Executive Director, and Mary Ellen Bateman, Unlicensed Practice of Law Counsel, The Florida Bar, Tallahassee, Florida; James E. McDonald, Chair, Standing Committee on Unlicensed Practice of Law, Miami, Florida; and Barry W. Rigby, Branch UPL Counsel, Orlando, Florida, for Complainant.

Candice L. Miravalle, pro se, Melbourne, Florida, for Respondent. JUDGES: HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

OPINION

Original Proceeding - The Florida Bar.

PER CURIAM.

Candice L. Miravalle, individually, and Express Legal Services, Inc., a Florida Corporation (respondents), petition this Court to review a referee's report recommending that respondents be enjoined from engaging in the unlicensed practice of law. We have jurisdiction. See Art. V, 15, Fla. Const.

FACTS

The Bar filed a Petition Against the Unlicensed Practice of Law against respondents. After receiving responses to interrogatories, the Bar filed a motion for summary judgment. The appointed referee granted the Bar's motion and ordered that respondents be permanently [*2] enjoined from engaging in the practice of law. The referee incorporated the order granting the summary judgment motion into his report filed with this Court. The following is a summary of the referee's findings of fact.

Candice Miravalle (Miravalle) is the owner and operator of Express Legal Services, Inc., a business in Melbourne, Brevard County, Florida. At no time during these events was Miravalle a member of The Florida Bar. In December 1995, Miravalle prepared a marital settlement agreement and final judgment of dissolution of marriage for Peter and Holly Berkowitz. In August 1996, Miravalle prepared a motion to reopen a bankruptcy case, a motion seeking cancellation and discharge of a judgment, a motion to declare that a judgment was not a lien on homestead property and to quiet title, and orders relating thereto, for Frances Totten. In September 1997, Miravalle prepared a motion to reopen a bankruptcy case and a notice of service for Joseph Delphino. None of the above-mentioned documents were forms approved by the Supreme Court of Florida. In her responses to the Bar's interrogatories, respondent Miravalle admitted that she: (a) engaged in oral communications to obtain information [*3] to prepare these documents; (b) took information from other documents in order to prepare these documents; (c) engaged in legal research with regard to these documents; and (d) drafted and typed these documents.

Respondents ran newspaper advertisements during 1997, 1998, and 1999 containing the question, "Are you ignoring your legal needs because you can't afford an attorney?" These advertisements contained respondents' business name and listed legal areas in which Express Legal Services offered assistance.

The referee found that there were no genuine issues of material fact. The referee then concluded that respondents were engaged in the unlicensed practice of law because they were not simply operating a secretarial or typing service, but instead were rendering personal services which could reasonably cause members of the public to rely on them to properly prepare legal documents. Further, the referee found that respondents' use of their business name and advertisements constitutes the unlicensed practice of law because the business name and advertisements suggested to the public that respondents were authorized to provide legal services when, by law, respondents were only authorized [*4] to provide secretarial or typing services.

In the report filed with this Court, the referee recommends that we ratify and adopt the summary judgment order entered against respondents, enjoin respondents from engaging in the practice of law, and tax costs against respondents.

Respondents petition this Court for review, objecting to the referee's report and claiming that the referee erred in granting the Bar's motion for summary judgment. Respondents argue their conduct does not constitute the practice of law. Alternatively, respondents argue that even if their conduct constitutes the practice of law under current case law, this Court should reconsider its prior holdings and find that paralegals and other nonlawyers must be allowed to perform legal services. Respondents argue that to hold otherwise would violate their constitutional right to contract and also deprive them of equal protection of the laws.

ANALYSIS

The respondents challenge the propriety of the referee's entry of a summary judgment in this unlicensed practice of law (UPL) case. We agree with the referee and approve the referee's findings. In Florida Bar v. Daniel, 626 So. 2d 178, 182 (Fla. 1993), [*5] a bar disciplinary proceeding, this Court held:

Under Rule Regulating The Florida Bar 3-7.6(e)(1), once a formal complaint has been filed and forwarded to a referee for hearing, the Florida Rules of Civil Procedure apply except where otherwise provided in the rule. Florida Rule of Civil Procedure 1.510(c) provides for summary judgment where . . . it is shown there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.

Thus, a referee has the authority in an UPL case to enter a summary judgment under the above-stated circumstances.

In the instant case, the Bar and respondents agree that respondents prepared legal documents which were not forms approved by this Court. Both agree that Miravalle engaged in oral communications, took information from other documents, and conducted legal research for the purpose of preparing these documents. Finally, respondents do not contest that they used the word "legal" in their business name and advertisements; nor do they contest the authenticity of the advertisements offered into evidence by the Bar. Therefore, there is no genuine issue of material fact and the issue facing this Court is whether [*6] these acts constitute the unlicensed practice of law.

The referee concluded that respondents' preparation of legal documents for their customers constitutes the unlicensed practice of law. We agree. This Court has repeatedly held that the preparation of legal documents by a nonlawyer for another person to a greater extent than typing or writing information provided by the customer on a form constitutes the unlicensed practice of law. See, e.g., Florida Bar v. Davide, 702 So. 2d 184 (Fla. 1997); Florida Bar v. Smania, 701 So. 2d 835 (Fla. 1997); Florida Bar v. American Senior Citizens Alliance, Inc., 689 So. 2d 255 (Fla. 1997); Florida Bar v. Schramek, 616 So. 2d 979 (Fla. 1993). This Court has also specifically held that a nonlawyer who orally takes information from an individual to complete a form when the form has not been approved by this Court is engaged in the unlicensed practice of law. See Florida Bar v. Catarcio, 709 So. 2d 96 (Fla. 1998). n1 Thus, we find as a matter of law that respondents engaged in the unlicensed practice of law by engaging in oral communication, taking information [*7] from written documents, and conducting legal research for the purpose of preparing legal documents not approved by this Court.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

A nonlawyer may take information orally pursuant to Rule Regulating The Florida Bar 10-2.1(a), which provides:

It shall not constitute the unlicensed practice of law for a nonlawyer to engage in limited oral communications to assist a person in the completion of blanks on a legal form approved by the Supreme Court of Florida. Oral communications by nonlawyers are restricted to those communications reasonably necessary to elicit factual information to complete the blanks on the form and inform the person how to file the form.(Emphasis added.) Respondents clearly exceeded the conduct allowed to be performed by nonlawyers under this rule.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

We also agree with the referee that respondents' use of their business name and the manner in which they advertise their services constitute the unlicensed practice of law. In Florida Bar v. Davide, this Court held that it constituted [*8] the unlicensed practice of law for a nonlawyer to use "Florida Law Center, Inc." as a company name because "the use of the name is misleading and gives the public the expectation that Florida Law Center, Inc., has expertise in the field of law." 702 So. 2d at 184-85. We further held in Davide that it constitutes the unlicensed practice of law for a nonlawyer to advertise that his or her company specializes in legal areas and to use advertisements that describe legal procedures. See id. at 185.

In the instant case, respondents use the business name "Express Legal Services, Inc." In their advertisements, they ask the question, "Are you ignoring your legal needs because you can't afford an attorney?" Under this question is a list of legal fields, such as bankruptcy, adoption, eviction and divorce, in which respondents offer assistance. Thus, we conclude that respondents' use of the name "Express Legal Services, Inc." and the manner in which they advertise their services constitute the unlicensed practice of law under Davide.

We also conclude that respondents' challenges concerning the constitutionality of prohibiting nonattorneys from offering [*9] legal services are without merit. In the past, we have said that regulating the practice of law among nonlawyers does not violate nonlawyers' constitutional rights. In Schramek, 616 So. 2d at 983, this Court found no merit to the nonlawyer's allegation that the regulation of nonlawyers unconstitutionally deprived him of his right to engage in business. In so holding, this Court stated that "prohibiting the unlicensed practice of law is 'not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons.'" Id. (quoting State ex rel. Fla. Bar v. Sperry, 140 So. 2d 587, 595 (Fla. 19962)); see also Florida Bar v. Furman, 376 So. 2d 378, 381 (Fla. 1979) (adopting referee's report in UPL case where referee stated "the fact she is an expert stenographer does not give her any legal right to engage in divorce and adoption practice anymore than a nurse has the right to set up an office for performing tonsillectomy or appendectomy operations or a dental assistant to do extractions [*10] or fill teeth"). Because the regulation of the unlicensed practice of law serves the critical role of protecting the public from unqualified individuals who are attempting to perform legal services, nonlawyers do not have a constitutional right to practice law by drafting legal documents or giving legal advice.

CONCLUSION

Accordingly, we approve the report of the referee and adopt the order granting the Bar's motion for summary judgment. Respondents Candice L. Miravalle, individually, Express Legal Services, Inc., a Florida Corporation, and any employees or persons acting in concert with respondents are permanently and perpetually enjoined from engaging in the unlicensed practice of law in the State of Florida. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from respondents Candice L. Miravalle, individually, and Express Legal Services, Inc., in the amount of $ 517.23, for which sum let execution issue.

It is so ordered.

---------------------------------------------------------------------------------------------

2002 Fla. LEXIS 872,*;816 So. 2d 587;
27 Fla. L. Weekly S 437
THE FLORIDA BAR, Complainant, v. BRIAN NEIMAN and BRIAN NEIMAN, INC., a Florida corporation, Respondents.
No. SC94738
SUPREME COURT OF FLORIDA
816 So. 2d 587; 2002 Fla. LEXIS 872; 27 Fla. L. Weekly S 437
May 2, 2002, Decided
COUNSEL: [*1] John F. Harkness, Jr., Executive Director, and Mary Ellen Bateman, UPL Counsel, The Florida Bar, Tallahassee, Florida; Jacquelyn Plasner Needelman, Branch UPL Counsel, Miami, Florida; and Allan James Sullivan, Co-Bar Counsel of Sullivan & Rivero, P.A., Miami, Florida, for Complainant.

H. Dohn Williams, Jr. of Hicks, Anderson & Kneale, P.A., Miami, Florida, for Respondents. JUDGES: WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.

OPINION

Original Proceeding - The Florida Bar.

PER CURIAM.

We have for review a referee's report recommending that Brian Neiman, individually, and Brian Neiman, Inc., a Florida corporation, ("Neiman"), be enjoined from engaging in the unlicensed practice of law. We have jurisdiction. See art. V, 15, Fla. Const. For the reasons that follow, we approve the referee's recommended findings of fact and conclusions of law, concluding that the respondents have extensively engaged in the unlicensed practice of law in Florida for many years, and we enjoin such practice in the future.

FACTS AND PROCEEDINGS TO DATE

The Florida Bar filed a twenty-two [*2] count n1 petition alleging that the respondents repeatedly engaged in the unlicensed practice of law over a period of approximately seven years. After twenty-one days of hearings, the referee made detailed findings that respondent, Brian Neiman, performed acts commonly understood to be the practice of law, including: serving as a primary contact for conferences on legal disputes; holding himself out as an attorney in dealings with others; attempting to argue and advocate the merits of cases, the applicability of the law, evidentiary issues, liability issues, discovery matters, and settlement matters with opposing counsel; attempting to analyze statutory and case law and to discuss it with clients and opposing counsel; trying to advise clients on the strengths and weaknesses of their cases and on how to proceed; actively participating in and presenting clients' cases at mediation sessions; actively participating in and presenting the complainants' cases at settlement sessions; extensively involving himself with fee arrangements; attempting to advise clients of their obligations under legal documents; drafting detailed letters and legal documents; signing court-filed documents; and discussing [*3] legal documents with clients without any attorney present.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

The referee struck counts VIIA, X, XI, XIV, XIX, and XX.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The referee further found that Neiman engaged in the unlicensed practice of law based upon the referee's finding that no attorney had any meaningful role in the development or settlement of several of the cases. The referee concluded that in some cases, such as those involved in counts IV, V, VI, and IX (discussed below), Neiman served as a conduit or intermediary for the preparation, consideration, or evaluation of legal matters of claimants who had not initially consulted with any supervising attorney.

REFEREE'S FINDINGS AND CONCLUSIONS

The proceedings below were extensive and an understanding of the facts established during those proceedings is necessary to understand the referee's findings and conclusions, and our approval of those conclusions. Because of the large number of separate incidents, we will discuss the circumstances relevant to only the most representative counts. Neiman concedes [*4] in his amended initial brief that the conduct alleged in counts IV, V, VI, VII, and XIII of the Bar's complaint were charged as criminal offenses and, on August 19, 1999, he entered a plea of nolo contendere to five criminal misdemeanor counts of the unlicensed practice of law.

COUNT I

The referee's findings of fact for count I help place the case against Neiman in its overall context. The referee concluded that for over seven years, Brian Neiman, a convicted felon, acted essentially as an attorney, even though he was never licensed to do so.

Before the referee, Neiman claimed his conduct was nothing more than "relaying information" from his employing attorney to another party, whether it be a client, opposing counsel, or another third party. However, the referee rejected this characterization of Neiman's conduct and concluded that the facts showed otherwise. Numerous witnesses testified that Neiman held himself out as an attorney, argued legal issues, and forcefully participated in settlement negotiations. The referee concluded that Neiman's earnings alone were indicative of his role in these cases, noting that Neiman personally received hundreds of thousands of dollars in compensation. [*5] For example, the record reflects that in 1995, Neiman personally grossed over $ 1.4 million in salary from his law-related activities. In 1996, Neiman, who was on probation for a criminal fraud conviction, actually reported to his probation officer that his income was $ 50,000 per month. A year later, he reported his income as $ 1 million to $ 1.5 million annually.

COUNT II

This count concerned Neiman's activities in a personal injury action. In 1995 and 1996, the law firm of Norman Ganz represented a woman claimant in an action stemming from injuries sustained in a golf cart accident. Neiman, then working at the Ganz firm, initially interviewed the woman concerning the facts of her claim and then told her she had a "good case." Neiman admitted that he conducted his own legal research on whether the dangerous instrumentality doctrine applied to the operation of a golf cart, and that he called the client to report the results of the legal research. Neiman was the woman's primary contact in the firm. At the hearings, Neiman admitted detailed knowledge of how the fee agreement was negotiated with the client. He also appeared on the client's behalf at mediation and had settlement discussions [*6] with the defending insurer's attorney.

Neiman also engaged in substantial telephone discussions about the case with a second defense attorney. When this attorney would call and attempt to speak with Ganz directly, Neiman, not Ganz, always returned her calls. Neiman engaged this attorney in discussions about discovery and settlement. During these conversations, Neiman was combative and attempted to argue the facts of the case. When the attorney made a settlement offer, Neiman told her the offer was unacceptable and warned that if her client did not offer more money, the client would be "dragged through the coals" and be "required to jump through the hoops." This attorney eventually refused to speak to Neiman further and attempted to notify Ganz by faxed letter. The fax machine, however, was located in Neiman's own office and the attorney never received a response from Ganz.

Importantly, a paralegal of the Ganz firm testified that Neiman was "in charge of the office" during this period. The paralegal testified that Neiman instructed office personnel that if the woman client called, the calls were to be given only to him, even if the client asked for attorney Ganz.

When Neiman received [*7] a letter from the claimant terminating the Ganz firm's representation of her, Neiman called her to try to convince her to stay with the firm and offered to reduce "his fee." When the claimant declined his offer, Neiman told her that she would be responsible for the $ 4,000 to $ 5,000 in costs the firm had allegedly incurred.

COUNT III

This count involved a case wherein the Ganz firm represented a plaintiff in a wrongful birth case. When the defense attorney called to speak to attorney Ganz, Neiman would usually return the calls. Neiman called the defense attorney directly to argue issues of liability, causation, and damages; and Neiman also presented the defense attorney with a "rock bottom demand figure" that the plaintiff would accept in settlement. Neiman never advised the defense attorney that he was conveying information previously approved or reviewed by Ganz.

Although Ganz appeared with Neiman for the plaintiff at a mediation, Ganz explained to all present that Neiman would handle the mediation for the plaintiff. Thereafter, Ganz spoke very little, while Neiman argued issues of liability, causation, and damages on behalf of the plaintiff. The defense attorney testified that [*8] Neiman appeared to be the most knowledgeable person at the Ganz firm regarding the law and facts of the case. Neiman acknowledged that he was responsible for determining the strategy for the firm for such presentations in a case.

COUNTS IV, V, AND VI

These counts asserted that from 1995 through 1998, the Ganz firm represented several individuals in a series of discrimination complaints based on race and disability against the Broward County Clerk of Court. Once again, Neiman was the main contact in the firm for these claimants. He met with them on a number of occasions, often at his own home. As a consequence, several claimants believed Neiman was an attorney. He ran the meetings, explained the fee agreements, discussed the courses the case could take, signed the claimants up with the firm, and assured them that they had a "good case." When explaining actions taken in the case, Neiman spoke in the first person by saying, "I did this" or "I did that." One claimant clearly believed that Neiman was making decisions on the case without consulting any "other attorney." Neiman also wrote and signed Ganz's name on correspondence on the case that Ganz never reviewed.

Opposing counsel [*9] were also led to believe that Neiman was an attorney. Neiman spoke with them dozens of times and acted as if he was providing legal representation for the plaintiffs. He discussed both substantive legal and settlement matters, and argued the claimants' positions, applicable law, potential liabilities, and possible damages. Neiman suggested specific language for various agreements and talked about the deposition questions he planned to draft. When some opposing counsel realized that Neiman was not an attorney, they insisted that a Ganz law firm attorney take part in the telephone conferences. Instead, the Ganz attorneys continually referred opposing counsel back to Neiman. Further, in July 1995, Neiman appeared at a settlement conference and advocated the settlement amounts sought by the claimants, and no Ganz attorney even attended this conference.

By November 1995, opposing counsel had warned the Ganz firm that Neiman was improperly discussing substantive legal issues, and the firm then brought in an attorney to assist with the case. However, in March 1997, Neiman contacted opposing counsel to inform them that the Ganz firm had fired the attorney, and he took "credit" for the firing. [*10] Notwithstanding previous warnings from opposing counsel, Neiman continued to discuss substantive legal issues with them. During one telephone conference, Neiman had a Ganz attorney join the call so Neiman could engage in extensive settlement discussions with opposing counsel. Although the Ganz attorney spoke occasionally, it was usually to ask Neiman whether a particular provision was satisfactory, rather than vice versa. Drafts of a settlement agreement were sent back and forth, and Neiman faxed opposing counsel revisions to the agreement, which Neiman admitted he had never shown to Ganz. Opposing counsel repeatedly objected to dealing with Neiman, but felt they were forced to deal with him in order to protect their client's interests.

As the case progressed, some claimants developed conflicts of interest, but Neiman made no attempt to resolve the conflicts. Instead, he exacerbated the conflicts by recruiting third parties, including a political acquaintance, to pressure claimants into accepting the terms he dictated. For example, the political acquaintance called a claimant and threatened that Neiman would place a lien on her property if she refused to settle. Neiman also discussed [*11] claimants' cases and their legal positions with other clients, as well as with outsiders, in an effort to intimidate the claimants into settlement so he could increase his personal share of any recovery.

In March 1998, a settlement conference took place, and Neiman and an out-of-state attorney attended the conference claiming to represent all of the plaintiffs. Neiman argued legal points for several hours during this eight-hour settlement conference. During these talks it was Neiman who proposed the settlement amounts on behalf of the claimants. He never paused to contact a Ganz attorney for advice or approval on any issues. Eventually, the Clerk of Court agreed to a settlement in excess of one million dollars. Neiman insisted to opposing counsel that he did not want the agreement to specify how much each claimant would receive and that he wanted a lump sum for the claimants to divide among themselves. Neiman then deceived the Ganz firm's clients about the amount of the settlement and the amount of the distribution to them. He manipulated the distribution of the settlement funds so that he and his affiliated attorneys received over fifty percent of the funds, while some claimants [*12] received as little as $ 10,000 or $ 20,000. Although some claimants requested a complete breakdown of all sums received, they were never given a final breakdown of the total settlement amount. Each claimant was advised only of his or her allotted portion of the settlement proceeds.

COUNT IX

This count involved the Ganz firm's representation of individuals in a racial discrimination complaint against Avis Rent-A-Car Systems, Inc. Two Haitian-Americans, who worked for Avis, visited the local NAACP office to complain of perceived racial discrimination. The NAACP then arranged a meeting for them with Neiman, whom the Haitian-Americans believed was an attorney. During this meeting, Neiman discussed various aspects of their case and assured them that they "definitely had a case." No Ganz attorney attended this meeting.

The next meeting included additional Avis employees who believed they also had claims. While a Ganz attorney was initially present with Neiman, the attorney did not take an active role in the discussions and left soon after the meeting began. Neiman told the individuals that they "had a case" and that he had significant experience with such cases. Neiman presented the [*13] individuals with extensive representation agreements that he wanted them to sign and, although some did not want to sign, Neiman eventually convinced each to sign. Each agreement contained a paragraph setting forth an "engagement fee," the amount of which was left blank. The claimants never saw a Ganz attorney sign these agreements on behalf of the firm. A Caucasian woman from Avis also attended the meeting, serving as the union's representative in support of the Haitian workers. When Neiman learned that the woman had minority family members, he solicited her to join the legal action as a party.

Neiman presided over several other meetings in which he discussed strategies and settlement options with the claimants. When he recommended settlement, the Caucasian woman was concerned because her retirement pension would increase significantly if she reached her twenty-year anniversary of employment with Avis, which was just over one year away. Neiman suggested that he and this woman call the pension officials of the company. When she made the call, with Neiman on the line, she told the Avis officials that her attorney was on the line and that he would negotiate the matter for her. Neiman [*14] did not inform the pension official that he was not an attorney.

Eventually, a presettlement conference took place with the attorneys for Avis. Before this meeting, Neiman advised each party what they should expect to receive. Neiman attended this meeting and brought attorney Saul Smolar of the Ganz firm, and also an out-of-state attorney, who was not licensed in Florida, but who spoke French, as well as attorney Barry Mandelkorn, who was not with the Ganz firm, to the meeting. Neiman falsely told Mandelkorn the parties had agreed to a specified minimum amount. During the meeting, Neiman spoke on behalf of the claimants.

Avis eventually agreed to a settlement under the terms of which the Caucasian woman would lose her entitlement to the pension benefits she desired. Neiman told her she should accept the settlement anyway, because it was the best she would get, and that even if she rejected the settlement, Avis was going to fire her. When other claimants also expressed dissatisfaction with the settlement, Neiman told one claimant that Neiman "would take care of him" if he would get the other Haitians to agree to the settlement. Eventually, each claimant did agree, and the one who [*15] assisted Neiman received an additional $ 10,000. None of the attorneys involved spoke with the claimants about the terms of the settlement.

Neiman never told the claimants the total amount of the settlement. Instead, he disclosed to each person only what he or she was receiving. Neiman himself disbursed the settlement checks at his office, having each claimant sign a "receipt" that Neiman wrote in his own handwriting. After each claimant had signed, Neiman altered the document into a "closing statement" by adding waiver language and the amounts each attorney received. Several claimants attempted to obtain a copy of the "receipt" they had signed, but Neiman denied their requests, claiming the documents were confidential. Neiman also demanded a $ 5,000 engagement fee from each claimant, over and above that which he received as a fee in the case. This fee was not previously disclosed to or accepted by any claimant. Neiman never forwarded a copy of the closing statement to the other attorneys in the case.

Although no active litigation ever took place, and actual costs were only $ 52, the portion for the "attorneys" amounted to almost fifty percent of the total settlement of the Avis [*16] case. The settlement was $ 573,420 and the Ganz firm retained $ 239,368, with Barry Mandelkorn receiving $ 20,000 and the out-of-state attorney receiving $ 20,000.

COUNT XVIII

During 1998, Neiman was working with the Smolar law firm, which was involved in federal litigation regarding discrimination claims against SunTrust Bank. Neiman stipulated that during the SunTrust matter he signed a federal complaint and discovery documents using Smolar's name, and this action directly violated federal court rules. Neiman testified that he routinely signed Smolar's name to court-filed documents.

When SunTrust directed an attorney to handle the complaint and the SunTrust attorney called Smolar's office, both Smolar and Neiman joined in the call. Neiman failed to disclose that he was not an attorney. Neiman discussed the factual allegations in the complaint, and brought up the possibility of NAACP involvement. Upon completion of the call, the SunTrust attorney concluded that Neiman was an attorney.

When SunTrust brought in a second attorney to assist with the case, he telephoned the Smolar firm and asked to speak to the "person responsible for the case." Neiman took the call and stated that [*17] he was responsible for the case. When the attorney asked to reschedule an upcoming settlement meeting, Neiman agreed to do so and, just as with the cases in the other counts, Neiman spoke in the first person, but failed to disclose that he was only a paralegal. The attorney testified that after the telephone conversation, he thought Neiman was an attorney, and, in subsequent correspondence the attorney referred to Neiman as "Brian Neiman, Esq."

Several days later, the second attorney and a colleague attended a meeting with Neiman, Smolar, and one of the plaintiffs. Neiman presented the case, argued the applicable law, and stated that they would bring in another firm to try the case if it went to trial. Neiman argued that the complaint was not vulnerable to a motion to dismiss, and that applicable law would prevent SunTrust from severing the plaintiffs' claims. Neiman spoke of the standards of proof required and the elements of the causes of action, and clearly advocated the position of the Smolar firm's clients. Neiman stated that he had the authority to settle on behalf of all the plaintiffs in the case, even though only one plaintiff was present, and he never sought guidance from [*18] Smolar during the discussions.

In fact, Smolar did not speak at the meeting until someone asked whether Neiman was an attorney. When informed that Neiman was not an attorney, the SunTrust attorneys declined to hear further from Neiman and demanded to hear directly from attorney Smolar. Smolar attempted to take over the presentation, but was unable to keep up with the discussion without continually seeking guidance from Neiman.

COUNT XXI

In 1998, Neiman and the Ganz firm were involved in federal litigation regarding sexual harassment claims against a local CBS affiliate and one of its employees. The Ganz firm was referred to the corporate labor counsel for CBS, and Neiman placed a call to that corporate counsel and stated that he was going to file a complaint against CBS alleging tort and federal civil rights violations. Neiman forcefully argued that the Ganz firm's client, a black man, was being sexually harassed by a white female CBS reporter. Neiman stated that the client had gone to the NAACP, and as general counsel for the NAACP, Neiman's firm was handling the matter. He claimed that federal jurisdiction arose because the client was black, and that CBS would have handled the [*19] matter differently if he had been white. Neiman stated that his firm would attempt to obtain an injunction against the CBS affiliate.

After making this presentation, Neiman told corporate counsel that he was calling to propose the following settlement: the client would take a polygraph test on the issues of harassment. If the client passed, CBS would agree to give the client two years' salary and pay his attorneys' fees. In exchange, the client would resign. Corporate counsel declined the offer to settle, but agreed to travel to Florida to meet with the client. Based on the manner in which Neiman handled the telephone conversation, corporate counsel concluded that Neiman was a lawyer.

The next day, corporate counsel received another telephone call from Neiman, who was upset because the local CBS affiliate had refused to give the client the entire day off for the upcoming meeting. Neiman told corporate counsel the client needed the whole day off because "I [Neiman] want to prepare him for the meeting." Corporate counsel then arranged for the client to have the day off.

The subsequent meeting was held at the offices of another law firm, although no attorney from that firm attended [*20] the meeting. The CBS vice-president of human resources appeared along with corporate counsel. Neiman and an attorney affiliated with the Ganz firm appeared along with the client. Neiman conducted the meeting, which lasted well over an hour. During the client's description of his grievances, Neiman would interrupt him to elaborate. Even though the Ganz affiliated attorney was present, her participation was minimal.

Neiman then tried to get CBS to settle, advocating the client's position by saying, "Can't you see how bad this looks," "you ought to settle," and "you have ruined this guy's life." Neiman told corporate counsel and the CBS vice-president that if CBS did not settle, he was going to sue them. The case did not settle at that meeting. Subsequently, corporate counsel received a letter from the Ganz firm which clearly indicated that Neiman was not an attorney. Corporate counsel then contacted Ganz directly, and the case was settled thereafter.

REFEREE'S CONCLUSION

Having made these findings of fact, as well as findings on other counts we have not discussed, the referee concluded that Neiman had extensively engaged in the unlicensed practice of law for years. The referee found [*21] that Neiman had not been properly acting as a paralegal. Rather, the referee concluded that Neiman appeared to be a businessman who was trying to use his association with a law firm to run a lucrative business.

As noted above, the referee made detailed findings concluding that Neiman performed acts commonly understood to be the practice of law, such as: holding himself out as an attorney in dealings with others; attempting to argue and advocate the merits of cases, the applicability of the law, evidentiary issues, liability issues, discovery matters, and settlement matters with opposing counsel; and attempting to analyze statutory and case law and to discuss it with clients and opposing counsel.

Further, the referee found that not only was Neiman not supervised by an attorney, Neiman actually "ran the show" in his law-related activities at the law firm. The referee noted that: (1) Neiman required that he be the person who opened the firm's mail each day unless he was not present in the office; (2) the firm's fax machine was located in Neiman's own office so he could monitor incoming faxes; (3) Neiman reprimanded Ganz, his purported boss, when Ganz would leave work early; (4) Neiman [*22] decided which cases the firm would or would not accept; (5) Neiman set his own schedule and work hours; and (6) upon leaving the Ganz firm, Neiman retained access to many of the firm's files.

The referee ultimately concluded that Neiman had performed services under a course of conduct that "affected important rights of a person under the law, and . . . the reasonable protection of the rights and property of those advised and served required that [Neiman] possess legal skill and a knowledge of the law greater than that possessed by the average citizen." See State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), vacated on other grounds, 373 U.S. 379 (1963).

RECOMMENDED INJUNCTION

Having found that Neiman engaged in the unlicensed practice of law, the referee recommended that this Court comprehensively enjoin Neiman from:

a. having direct contact with any client, opposing counsel or third party, unless it involves Neiman's own personal legal matters;

b. without limiting the above, discussing, construing or interpreting the applicability of any caselaw, statutory law or any other law with any opposing counsel or other third party; [*23]

c. speaking on behalf of third parties at settlement conferences, meetings, negotiations or mediations, even with an attorney present;

d. appearing on behalf of third parties at settlement meetings, negotiations or mediations without the attorney present for whom [Neiman] is employed;

e. without limiting the above, providing third parties advice on the strengths and weaknesses of any legal matter, or making decisions on behalf of others that require legal skill and a knowledge of the law greater than the average citizen;

f. without limiting the above, advising third parties as to various legal remedies available to them and possible courses of action;

g. preparing pleadings, motions or any other legal documents for others, and, without limiting the above, explaining to third parties the legal significance of any document;

h. without limiting the above, having direct contact in the nature of consultation, explanation, recommendation, advice or assistance in the selection of any legal remedy or course of action;

i. suggesting, directing or participating in the accumulation of evidence supporting any legal claim;

j. holding [himself] out to third parties in such a manner that [*24] a third party places some reliance on [him] to handle legal matters;

k. impliedly holding himself out as an attorney;

l. without limiting the above, serving as a conduit or intermediary for the obtaining or relaying of any information for the preparation, consideration or evaluation of any legal matter from others who have never consulted with [Neiman's] supervising attorney;

m. soliciting or accepting attorney's fees;

n. without limiting the above, corresponding with parties or attorneys of parties as the representative of any client relating to legal matters;

o. signing any letter, pleading or other document on behalf of any attorney or under any attorney's signature, even with such attorney's consent;

p. and from otherwise engaging in the practice of law in the State of Florida until such time as Respondent Brian Neiman is duly licensed to practice [law] in this state.

ANALYSIS

Neiman now petitions for review asserting three claims: (1) that participating in settlement negotiations does not constitute the unlicensed practice of law; (2) that the referee's recommendation to enjoin Neiman from participating in settlement negotiations violates the Equal Protection Clause; [*25] and (3) that three of the referee's recommended injunction provisions are overbroad, prohibiting Neiman from performing routine paralegal activities. As a preliminary matter, Neiman does not contest the referee's recommended findings of fact. Therefore, we approve the findings of fact. We sequentially address Neiman's challenges to the referee's report.

First, Neiman argues that participating in settlement negotiations does not constitute the unlicensed practice of law.

This Court has held that a referee's conclusion that a nonlawyer has engaged in the unlicensed practice of law is "presumed correct and will be upheld unless clearly erroneous or without support in the record." Florida Bar v. Embassy of Heaven Church, 761 So. 2d 1053, 1054 (Fla. 2000) (quoting Florida Bar v. Weisser, 721 So. 2d 1142, 1144 (Fla. 1998)). We find the referee's conclusion that Neiman's conduct during settlement negotiations constituted the unlicensed practice of law is sound and supported in the record.

This Court has held that defining the practice of law must be considered in the context of our obligation to protect the public:

[I]n determining whether the giving [*26] of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law. State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962). Applying this definition to the facts of the instant case, the record shows that Neiman committed an extensive number of acts constituting the unlicensed practice of law when he participated in settlement negotiations as if he were legal counsel for one of the parties. The acts included discussing case law and legal strategy with clients; speaking on behalf of clients; and arguing the legal merits of cases, as well as other activity usually reserved only to the judgment [*27] of a person educated, trained, and licensed in the practice of law.

Moreover, in Florida Bar v. Schramek, 616 So. 2d 979, 983 (Fla. 1993), this Court emphasized that the major purpose for prohibiting the unlicensed practice of law is to protect the consuming public from being advised and represented in legal matters by unqualified persons who may put the consuming public's interests at risk. See also Florida Bar v. Furman, 376 So. 2d 378, 381 (Fla. 1979). Indeed, considering the facts in the instant case, it is apparent that Neiman's activities are precisely the type of harmful behavior that this Court strives to prevent in prohibiting the unlicensed practice of law. Those activities include misleading claimants and others so they believed he was an attorney; convincing people he could adequately represent them in their legal matters; making huge personal profits, while giving the actual claimants only small portions of the settlements; and even causing one claimant to lose certain pension benefits. See Schramek, 616 So. 2d at 983.

Neiman further argues that enjoining him from participating in settlement negotiations, while permitting [*28] certain nonlawyers such as insurance claims adjusters to participate in such negotiations, would violate his constitutional right to the equal protection of the law. We find no merit to this argument.

We have generally held that "regulating the practice of law among nonlawyers does not violate nonlawyers' constitutional rights." Florida Bar v. Miravalle, 761 So. 2d 1049, 1052 (Fla. 2000). Further, it has been observed that employment as a paralegal does not create any fundamental interests, and paralegals are not a suspect class for purposes of equal protection analysis. See Monroe v. Horwitch, 820 F. Supp. 682 (D. Conn. 1993) (holding that differential treatment of paralegals, depending upon the existence of attorney supervision, did not violate equal protection), aff'd, 19 F.3d 9 (2d Cir. 1994). In Monroe, the United States District Court for the District of Connecticut addressed a similar equal protection claim by a paralegal and found:

No fundamental interest is at stake. "The Constitution does not create fundamental interests in particular types of employment." Edelstein v. Wilentz, 812 F.2d 128, 132 (3rd Cir. 1987), [*29] citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S. Ct. 2562, 2567, 49 L. Ed. 2d 520 (1976). Nor is the class of individuals regulated inherently suspect. A suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Massachusetts Bd. of Retirement, 427 U.S. at 313, 96 S. Ct. at 2567. 820 F. Supp. at 687. Because the regulation of the unlicensed practice of law serves the critical role of protecting the public from unqualified individuals who attempt to perform legal services, nonlawyers do not have a constitutional right to practice law by participating in settlement negotiations or giving legal advice. See Miravalle, 752 So. 2d at 1052. There is simply no constitutional right to engage in the unlicensed practice of law.

Finally, Neiman argues that three of the referee's recommended injunction provisions are overbroad, prohibiting him from performing routine paralegal activities:

a. having direct contact with any [*30] client, opposing counsel or third party, unless it involves Neiman's own personal legal matters; . . .

g. preparing pleadings, motions or any other legal documents for others, and, without limiting the above, explaining to third parties the legal significance of any document; . . .

i. suggesting, directing or participating in the accumulation of evidence supporting any legal claim. . . .Neiman suggests, for example, that these recommendations prohibit him from: answering the phone because it could be a client; scheduling meetings for an employing attorney; drafting any documents whatsoever for an employing attorney; and picking up medical records. He states that these recommendations effectively bar him from setting foot inside his employer's law office. We disagree.

Neiman's argument overlooks the facts found by the referee and approved by this Court as well as the referee's and this Court's conclusion in this case that he has been conclusively proven to have extensively engaged in the unlicensed practice of law for profit.

The referee's recommended terms of injunction are based on Neiman's demonstrated misconduct. Therefore, Neiman's compliance with the terms of the recommended [*31] injunction shall be interpreted in accordance with this Court's definition of the practice of law in Sperry, set out above. We find the challenged provisions appropriate in the present case based on the egregious and cumulative acts that Neiman perpetrated repeatedly for approximately seven years. He held himself out as an attorney and used this persona to take advantage of numerous members of the public for his personal financial profit. In view of these facts, we conclude the referee's recommendations as to the terms of the injunction are warranted and are clearly necessary for the protection of the public.

Although there is no Rule Regulating the Florida Bar specifically dealing with the employment of paralegals, the rules provide guidance concerning the employment of suspended attorneys and attorneys who have been disbarred or whose disciplinary resignations have been allowed. Rule 3-6.1 (Employment of Certain Attorneys or Former Attorneys) provides that an "authorized business entity (as defined elsewhere in these rules), may employ individuals subject to this rule to perform such services only as may ethically be performed by other lay persons employed by authorized business [*32] entities." Further, subdivision (d) of rule 3-6.1 (Client Contact) provides that "[n]o employee shall have direct contact with any client. Direct client contact does not include the participation of the employee as an observer in any meeting, hearing, or interaction between a supervising attorney and a client." In light of this language, we conclude that paralegals may only perform such services as may be ethically performed by other lay persons employed by the business entity. Therefore, if suspended or former attorneys are not allowed to have client contact, as described in rule 3-6.1, then neither should paralegals.

Neiman argues that this recommendation will enjoin him from performing menial tasks like answering the telephone for fear that he would have contact with a client, opposing party, or third party. Neiman has unnecessarily interpreted this recommendation to the extreme because the purpose of the referee's recommendation is to prevent the unlicensed practice of law. Thus, for Neiman to violate the injunction, he would have to engage in conduct similar to that which the referee has already reviewed and concluded constitutes the unlicensed practice of law. Obviously, answering [*33] the telephone without discussing any legal matter would not constitute the unlicensed practice of law according to Sperry and, therefore, would not violate the injunction.

Neiman also argues that the referee's recommendation that he be enjoined from "preparing pleadings, motions or any other legal documents for others, and, without limiting the above, explaining to third parties the legal significance of any document" is overbroad because it precludes him from preparing such documents under the supervision of his employing attorney. We disagree because the term "others" does not include a supervising attorney, particularly because a supervising attorney must approve and sign a prepared document before it is filed with a court. As a result, the document is not attributed to the paralegal, but to the supervising attorney. Also, we note that the referee clarified his recommendation about the preparation of documents by further recommending that Neiman be enjoined from "explaining to third parties the legal significance of any document." This specific language has been used previously by this Court in enjoining nonlawyers from "preparing pleadings and any other legal documents for [*34] others." Florida Bar v. Eubanks, 752 So. 2d 540, 544 (Fla. 1999). Although a clearer recommendation may have been to enjoin Neiman from preparing documents for third parties or for anyone other than a supervising attorney, we conclude that the referee's recommendation under the circumstances of this case that Neiman be enjoined from preparing legal documents for others is not overbroad.

Finally, Neiman argues that the referee's recommendation that he be enjoined from "suggesting, directing or participating in the accumulation of evidence supporting any legal claim" is overbroad because it would preclude him from participating in such tasks as picking up medical records from a custodian of records. This Court has enjoined nonlawyers from "suggesting, directing, or participating in the accumulation of evidence to be submitted with the completed forms." Eubanks, 752 So. 2d at 544 (emphasis added); see Schramek, 616 So. 2d at 987; Florida Bar v. King, 468 So. 2d 982, 983 (Fla. 1985). The referee's recommendation in the instant case is similar to the cited cases in that it enjoins Neiman from having a directive role [*35] in the accumulation of evidence. Although Neiman argues that this language will prevent him from doing ministerial tasks for his employing attorney, under the attorney's direct supervision, we disagree. To use Neiman's example, picking up medical records does not involve his "suggesting, directing, or participating in the accumulation of evidence" because it does not ordinarily involve a determination of what evidence should be accumulated. Rather, it is purely a ministerial act at the direction of his supervising attorney. Simply picking up medical records as a courier would not constitute the unlicensed practice of law and, therefore, would not violate the injunction.

CONCLUSION

Accordingly, based upon the circumstances and analysis set out above, we agree with the referee that Neiman has improperly engaged in the unlicensed practice of law for profit for years. In common parlance, Neiman's activities fail the "duck" test. That is, in common parlance, one would expect that if it looks like a duck, and walks, talks, and acts like a duck, one can usually safely assume it is a duck. Unfortunately, while Neiman at all times acted like an educated and licensed lawyer, he was not. And, [*36] just as the public must be protected from uneducated and unlicensed physicians in an operating room, the public must be protected from bogus attorneys seeking to profit from the problems of the innocent and uninformed with serious personal and legal problems who may be taken in by a smooth but deceitful demeanor. We therefore approve the referee's report and recommendations in their entirety and we hereby enjoin Brian Neiman, individually, and Brian Neiman, Inc., a Florida corporation, from engaging in the unlicensed practice of law in the State of Florida, including those activities specified in the referee's report and quoted above. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Brian Neiman, individually, and Brian Neiman, Inc., jointly and severally, in the amount of $ 28,726.16, for which sum let execution issue.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.

-----------------------------------------------------------------------------------

Everything You Need to Incorporate, Protect and Operate Your Business.
Client Log-in

© Copyright 2017 by Blue Planet Offices, Inc.
Blue Planet Offices, Inc., 1107 Key Plaza #306, Key West, FL 33040-4077
Customer Service: 305-897-2593, 1-800-518-1206

© Copyright 2017 by Blue Planet Offices, Inc.

Quantcast