1)- AMICUS CURIAE IN SUPPORT OF FOREIGN LEGAL CONSULTANTS ATTORNEYS. 2)- We celebrate who is the Honorable Bárbara Lagoa, the Cuban/American judge
MOA BRIEF AMICUS CURIAE
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Organizational Memoranda and Memorandum of Agreement (MOA) as Amicus Curiae in Support of attorney foreign legal consultants.
To the
Supreme Court- Florida Attorney State Bar Association- state level organizations, and to American Bar Association- A.B.A.
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National Association for Foreign Attorneys (“N.A.F.A. LAW”). Filer of this Memo Amicus Curiae Brief reflecting NAFA’s Members’ written agreement consent opinion presented by Humphrey H. Pachecker- Christopher Martin Waine- Juan Rey Rodriguez in Support of attorney foreign legal consultants.
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IN RE: MOA ON BRIEF AMICUS CURIAE IN SUPPORT OF FOREIGN LEGAL CONSULTANTS ATTORNEYS (“FLC”), ET AL.
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Humphrey H. Pachecker— Christopher Martin Waine — Juan (John) Rey Rodriguez
Professor of Law JD LLM Professor of Law JD Professor of Law JD
Sebring, Florida Madrid, Spain San Juan, Puerto Rico
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Mailing Address:
NAFA PROFESSIONAL ASSOCIATION
3200 US Hwy. 27 South- Wells Fargo Bldg. Suite 302
Sebring, Florida 33870
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QUESTION SUBMITTED:
Whether The Florida Bar, state and federal courts may summarily deny and dismiss the rights of access to a person into the federal practice admission to a federal agency granted by the purview of U.S. Supreme Court’s precedent case Sperry v. Florida, and whether they may deny access to federal practice before federal agencies to official proceedings without determining whether certified foreign legal consultant attorneys FLC are entitled to admission to practice in front of federal agency pursuant to the aforementioned U.S. Supreme Court precedent including the First Amendment public law access.
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TABLE OF CONTENTS
iv
TABLE OF AUTHORITIES
Pages
QUESTION PRESENTRED…………………………………………………………1
TABLE OF AUTHORITHIES………………………………………………………..4
IDENTITY AND INTEREST OF AMICUS BRIEF…………………………6
SUMMARY OF ARGUMENT……………………………………………………….8
REASONS FOR THIS AMICUS MEMO ……………………………………….8
NONLAWYER PRACTICE 41 FEDERAL AGENCY……………….9
SUMMARY OF UNLICENSED PRACTICE OF LAW CASES……….12
CONCLUSION …………………………………………………………………………..22
- In Florida. First Amendment public access rights encompass the right to assemble, protest, speak freely, and access government records and meetings. Florida Statute 1004.097 outlines the rights of students, faculty, and staff of public institutions of higher education to engage in expressive activities on campus, including peaceful assembly, protests, speeches, and distributing literature. Florida’s constitution guarantees the right to assembly, protest, and freedom of speech, mirroring the First Amendment of the U.S. Constitution.
- U.S. Supreme Court- Sperry v. Florida, 373 U.S. 379 (1963). Sperry v. Florida ex rel. Florida Bar- No. 322- Argued March 25, 1963- Decided May 27, 1963- 373 U.S. 379
CERTIORARI TO THE SUPREME COURT OF FLORIDA.
Syllabus:
Petitioner is not a lawyer, and has never been admitted to the Bar of any State, but, under regulations issued by the Commissioner of Patents with the approval of the Secretary of Commerce pursuant to 35 U.S.C. § 31, he has been authorized to practice before the United States Patent Office. As part of that practice, he has for many years represented patent applicants, prepared and prosecuted their applications, and advised them in connection with their applications in the State of Florida. The Florida Bar sued in the Supreme Court of Florida to enjoin the performance of these and other specified acts within the State, contending that they constituted unauthorized practice of law.
Held: 1. Florida may not prohibit petitioner from performing within the State tasks which are incident to the preparation and prosecution of patent applications before the Patent Office. Pp. 373 U. S. 381-402.
(a) The determination of the Supreme Court of Florida that the preparation and prosecution of patent applications for others constitutes the practice of law, within the meaning of the law of that State, is not questioned. P. 373 U. S. 383.
(b) Florida has a substantial interest in regulating the practice of law within the State, and, in the absence of federal legislation on the subject, it could validly prohibit nonlawyers from engaging in this circumscribed form of patent practice. P. 373 U. S. 383.
(c) A federal statute, 35 U.S.C. § 31, expressly permits the Commissioner of Patents to authorize practice before the Patent Office by nonlawyers; the Commissioner has explicitly granted such authority; and Florida may not deny to those failing to meet its own qualifications the right to perform acts within the scope of the federal authority. Pp. 373 U. S. 384-385.
(d) There cannot be read into the federal statute and regulations a condition that such practice must not be inconsistent with state law, thus leaving registered patent practitioners with the unqualified right to practice only in the physical presence of the
Page 373 U. S. 380
Patent Office and in the District of Columbia, where that Office is now located. Pp. 373 U. S. 385-387.
III. Field Preemption. In Sperry v. Florida, 373 U.S. 379 (1963), the Supreme Court examined a conflict between federal patent laws and a state law governing the licensure of attorneys. The U.S. Patent Office had licensed a person as a patent agent, but the State of Florida had found this to be unauthorized practice of law. The Supreme Court ruled that federal law preempted state law with regard to the person’s ability to act as a patent agent in Florida. While Congress did not expressly state that it intended federal patent law to preempt state licensure law, the court held that preemption was “necessary and proper to accomplish” the goals of the patent laws.
Field Preemption
Field preemption may occur when federal laws and regulations have so thoroughly covered a particular field that no room remains for the states. The Arizona decision mentioned earlier is an example of express field preemption based on authority expressly granted to Congress by the Constitution. The Supreme Court has also recognized implied field preemption based on the sheer volume of federal regulations.
The Preemption Doctrine
The Supreme Court described the preemption doctrine in Altria Group v. Good, 555 U.S. 70 (2008): “[S]tate laws that conflict with federal law are without effect.” The decision discussed the difference between express and implied preemption, and it identified ways to determine whether Congress intended federal law to preempt state law. The Court also cautioned that, when evaluating evidence of Congressional intent, courts should err on the side of state rather than federal authority.
Express Preemption
When Congress declares that a statute preempts federal law, this is known as “express preemption.” This usually involves a preemption clause in the statute. As mentioned earlier, if a preemption clause is in any way ambiguous, the Supreme Court’s ruling in Altria directs courts to consider the ambiguity in favor of state law. This includes evaluating whether the state law at issue falls within the scope of what Congress intended federal law to preempt.
In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court held that federal immigration law preempted a state law penalizing undocumented immigrants who worked without authorization. The Immigration Reform and Control Act of 1986 contained an express preemption clause, codified at 8 U.S.C. § 1324(h)(2). The court found that Arizona’s law was “an obstacle to the regulatory system Congress chose.”
TABLE OF AUTHORITHIES:
U.S. Supreme Court- Sperry v. Florida, 373 U.S. 379 (1963).
Sperry v. Florida ex rel. Florida Bar- No. 322- Argued March 25, 1963- Decided May 27, 1963- 373 U.S. 379.
Florida First Amendment. Florida Statute 1004.097.
Altria Group v. Good, 555 U.S. 70 (2008).
Arizona v. United States, 567 U.S. 387 (2012).
The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980 precedent).
Article I, § 8, Chapter 8, of the Constitution. P. 373 U.S. 403.
35 U.S.C. § 31
The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966)
The Florida Bar v. Town, 174 So. 2d 395 (Fla. 1965)].
Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974 precedent)
Szteinbaum v. Kaes Investments Securities, 476 So. 2d 247 (Fla. 3d DCA
The Florida Bar. Rule 5.030, Rules of Probate and Guardianship, Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974 precedent)
The Florida Bar re: Advisory Opinion – Representation of Non-Attorneys in Securities Arbitration, 696 So. 2d 1178 (precedent Fla. 1997).
Johnstown Properties Corp. v. Gabriel, 50 Fla. Supp. 138 (preceded by Polk County Court, Florida, 1980).
New York County Lawyers Association v. Dacey, precedents 287 N.Y.S. 2d 422 (N.Y. 1967); 283 N.Y.S.2d 984 (N.Y. App. 1967).
Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (preceding Fla. 4th DCA 2001).
The Florida Bar v. Matus, 528 So. 2d 895 (Fla. precedent 1988)
The Florida Bar v. Becerra, 661 So. 2d 299 (Fla. precedent 1995)
The Florida Bar v. Lopez, 231 So. 2d 819 (Fla. precedent 1970).
The Florida Bar v. Mills, 410 So. 2d 498 (preceding Fla. 1982).
The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (preceded Fla. 1978).
Calzadilla, 151 B.R. 622 (precedent Bkrtcy. S.D. Fla. 1993). [Equally applicable to foreign attorneys certified as FLCs.]
The Florida Bar v. Keehley, 190 So. 2d 173 (Fla. 1966). [Equally applicable to foreign attorneys certified as FLCs.]
The Florida Bar re Advisory Opinion: Representation of Nonlawyers in Securities Arbitration, 696 So. 2d 1178 (Fla. precedent 1997).
The Florida Bar v. Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968).
Florida Bar v. Irizarry, 268 So. 2d 377 (Fla. precedent 1972)
Florida Bar v. Hughes, 697 So. 2d 501 (Fla. precedent 1997)
Florida Bar v. Lister, 662 So. 2d 1241 (Fla. precedent 1995)
Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. precedent 1985)
Heilman v. Suburban Coastal Co., 506 So. 2d 1088 (preceded by Fla. 4th DCA 1987).
Decided May 27, 1963- 373 U.S. 379. CERTIORARI TO THE SUPREME COURT OF FLORIDA.
v.
STATUTES
Free of Expression Act, Florida Statutes s. 1004.097.
Article V, Section 1 of the Florida Constitution.
State Law Fla. Stat. § 454.18. The right to appear pro se in a civil case before a federal court is contained in 28 U.S.C. § 1654.
RULES
Rule 10-2.1(a), Rules Regulating the Florida Bar.
Federal law, Title 31 C.F.R. § 10.
Title 37 C.F.R. §§10.1(1), 10.6, and 10.36
Federal law, Title 8 C.F.R. §292
Rule 2.510 Fla.R.Jud.Admin.
Rule 10-2.1(a) 2, R.Reg. Fla.Bar.
8 U.S.C. § 1324(h)(2).
Rules 37.2(a) and 37.3(a).
IDENTITY AND INTERESTS OF THIS MEMO AMICUS CURIAE
Pursuant to the Rule of Admission for Foreign Lawyer Consultants, Chapter 16, approved by the Florida Supreme Court, Rule 16-1.3- ACTIVITIES. (a) Rendering Legal Advice… (A)… [limitations on the practice of the FLC]… except as authorized in any rule of procedure relating to admission pro hac vice, or pursuant to an administrative rule.
The National Association for Foreign Lawyers (NAFA LAW) respectfully submits this amicus curiae brief memo in support of the activities of Certified Foreign Lawyer Consultants (FLCs) in the State of Florida.
For over thirty years, NAFA LAW has promoted and elevated excellence, ethics, and high standards for the responsible and reliable practice of foreign legal consultants in Florida. This Amicus Curiae Memorandum is shared not only by NAFA LAW members, but also by the workers it serves, which demands transparency from its institution.
At NAFA LAW, we believe that as the population and economy continue to expand the horizons of the State of Florida, the need for the services of foreign legal counsel also increases. U.S. domestic investors with foreign commercial projects, as well as international investors from abroad seeking opportunities in the United States, often need, and therefore would benefit from, the convenience of having foreign legal counsel FLC, foreign lawyers, available to advise on questions related to relation of a foreign jurisdiction to the Florida’s legal system and laws. Rather than overlapping or even conflicting, the work of foreign legal FLC counsel complements the work of local lawyers called upon to anticipate the effects of an international transaction negotiated in Florida or involving a Florida party or business.
A local attorney examining a matter from the client’s perspective may not always be prepared to adequately plan for all the legal consequences arising from a transaction to be conducted, whether in whole or in part, in a foreign jurisdiction. This also applies to business owners who have federal investor visa requirements, federal trademark and patent registrations requirements, and other needs.
The need for foreign consulting attorneys FLC is also felt in the litigation arena. Litigation can arise as a natural consequence of the increase in international business, in which Florida plays an increasingly important role in the hemisphere and beyond. Along with the flow of foreign capital into Florida, there is a parallel influx of foreign nationals. Many of these individuals own or come to own property in Florida, including real estate, bank accounts, securities accounts, and other assets.
Pursuant to the Supreme Court Rule: Consent and Motions for Leave to File Amicus Briefs.
No motion for leave to file an amicus memo brief is necessary at the cert or merits stage if the brief reflects that written consent of all parties has been provided. Rules 37.2(a) and 37.3(a).
Many parties provide blanket consent to the filing of all amicus memo briefs, and such consent is typically reflected on the Court’s docket. If blanket consent is provided at the cert stage, it does not apply at the merits stage; a party wishing to consent to the filing of all amicus briefs at the merits stage must file a separate blanket consent. Parties may also provide written consent with respect to individual amicus briefs directly to counsel for the amicus; there is no requirement that the individual written consent be submitted along with the brief, only that the brief note that written consent has been provided by counsel of record for each party. Rules 37.2(a) and 37.3(a). A statement to this effect is typically included in the first footnote of the brief.
If all parties have not provided consent to the filing of an amicus brief, a motion for leave to file the brief must be submitted. The motion must be filed together with the proposed amicus brief as a single document. The motion must indicate the party or parties that have withheld consent and must state the nature of the movant’s interest. Rules 37.2(b) and 37.3(b). The motion must comply with the relevant provisions of Rules 21, 24 and 33.1, and it may not exceed 1,500 words. Rule 37.5.
No motion for leave to file an amicus brief is necessary if the brief is filed on behalf of a federal, state, county, town, or similar governmental entity when submitted on behalf of its authorized legal officer. Rule 37.4.
No motion for leave to file an amicus memo brief is necessary at the cert or merits stage if the brief reflects that written consent of all parties has been provided. Rules 37.2(a) and 37.3(a).
File Amicus Brief in the Supreme Court of Florida. When a party has invoked the discretionary jurisdiction of the supreme court, an amicus curiae may file a notice with the court indicating its intent to seek leave to file an amicus brief on the merits should the court accept jurisdiction. The notice shall state briefly why the case is of interest to the amicus curiae, but shall not contain argument.
This AMICUS CURIAE MEMO does not present any issues raised in a particular case. The specific requirements for these and other aspects of the brief are set forth in Rule 37.5.
SUMMARY OF ARGUMENTS
This Amicus Memo Brief by the NAFA LAW Association requests review of the deeply divided decision of the Florida Bar Chapter 16 FLC contrary to the cited U.S. Supreme Court precedent in Sperry v. Florida, which states that, quote: “Florida may not prohibit petitioners from performing within the State tasks which are incident to the preparation and prosecution of patent applications before the Patent Office.” pp. 373 U.S. 381-402. This cited U.S. Supreme Court precedent favoring the admission rule to federal agencies for foreign legal consultant attorneys FLC.
The long-term effect of this U.S. Supreme Court decision in re SPERRY is that it virtually opens access to federal proceedings before federal judicial administrative agencies, both civil, administrative, and immigration, present and future, without even mentioning the First Amendment or citing this Supreme Court’s SPERRY precedent, which defines the scope of the right of access to foreign FLC consulting attorneys.
I.
REASONS FOR THIS AMICUS MEMO
THE FLORIDA BAR’S ACTIONS EFFECTIVELY PREVENT ACCESS TO FEDERAL PRACTICE, ADMINISTRATIVE RULES, AND PRO HAC VICE ADMISSION OF CERTIFIED FOREIGN CONSULTANT LAWYER “FLC” IN PRESENT AND FUTURE CASES, IN DIRECT CONFLICT WITH THE UNITED STATES SUPREME COURT’S DECISION IN RE. SPERRY V. FLORIDA.
Since 1963, the Florida Supreme Court and the Florida Bar Ethics Committee have held that the U.S. Supreme Court’s Sperry precedent prohibits Florida from allowing persons other than attorneys certified by a federal agency to provide limited legal services to the public in Florida if the federal agency permits and has authorized the person to provide such services, guaranteeing the person the right to assist the public and to promote their legal services, even though they might otherwise be unauthorized practice of law services if these were not authorized by a federal agency- in re to Sperry v. Florida.
Once the persona is certified and authorized by such federal agency, he she becomes authorized legal services provider. This Sperry precedent provides a pathway for non-lawyers and certified foreign FLC lawyers to satisfy their rights by applying to federal agencies for admission observing the federal agency’s admission rules and the Florida Bar’s rule on admission for foreign consulting lawyers under Chapter 16-1.3 (A) Activities.
Pursuant to Sperry precedent this is the basis for the presumption of transparency in all federal administrative practice admission rules and the practice and opportunities available to FLC foreign consulting lawyers under the Florida Bar’s Chapter 16 rules on admission for foreign law consultants and the Chapter 17 rule on in house counsel.
This Sperry precedent provides a path that allows non-lawyers, as well as certified foreign lawyers, to satisfy their rights by applying for admission to federal agencies by observing the federal agency’s admission rules and the Florida Bar’s admission rule for foreign consulting attorneys. This is the basis for the presumption of transparency in all federal administrative practice admission rules, as well as the practice and opportunities available to FLC foreign consulting attorneys under the Florida Bar’s Chapter 16 admission rules for foreign law consultants, and the Chapter 17 rule for in-house counsel.
By failing to apply the precedent Sperry v. Florida ex rel. Florida Bar – No. 322-1963-373 U.S. 379, a person non lawyer likewise for FLC foreign legal consultant person, The Florida Bar may be ignoring this precedent decisions of the Supreme Court of the United States and sixty-two years of jurisprudence from the Supreme Court of the nation as well as from lower courts, which recognize the fundamental role that the right of access that all such FLC foreign legal consultant must have in Florida plays in the operation and legitimacy of The Florida Bar’s Chapter 16 admission rule. This substantial discrepancy from precedent and established law governing an important federal constitutional right warrants its review.
When a foreign law consultant attorney (FLC), once certified and authorized by the Supreme Court of Florida and certified by The Florida Bar, should not be sanctioned for the unauthorized practice of law (UPL) if this attorney is providing services within the scope authorized by the PRO HAC VICE-CHAPTER 16-1.3 admission, also the administrative admission rule under a federal agency that certified the foreign FLC attorney, including:
II.
OTHER PERSONS NONLAWYERS and PROFESSIONALS WHO HAVE ACCESS TO APPLY FOR AUTHORIZATION TO PRACTICE IN 41 FEDERAL AGENCIES. This Amicus Curiae Brief requests review of the fact that all of these federal agencies permit non-lawyers to practice federal administrative law- These are the following.
1-. USCIS–IMMIGRATION AND NATURALIZATION SERVICE [8 CFR 292.1-3]
2-.Patent & Trademark Office [35 U.S.C. § 31-33].
3-.Comptroller of the Currency [12 CFR 19.3].
4-.Department of Labor. EEOC.Title VII of the Civil Rights Act of 1964 (Title VII).
5-.Employees Compensation Appeals Board [20 CFR 501.11].
6-.Civil Aeronautics Board [14 CFR 300.1-6, 302.11].
7-.Financial Assistance and Services Program [25 CFR 20].
8-.Consumer Product Safety Commission [16 CFR1025.61, et seq.].
9-.Department of Commerce – Marketing Service [7 CFR 50.27].
10-.Office of Secretary – Administrative Personnel [5 CFR Part 1201].
11-.Department of Health and Human Services – Titles VI and XVI of the Public Health Service Act (42 USC §§ 291).
12-.Food and Drug Administration [32 CFR 12.40, 12.45].
13-.Public Health (Medicare, Part B) [42 CFR 405].
14-.Welfare (Medicare, Aid to Families w/Dependent Children and Families [45 CFR 205].
15-.Department of Justice. https://www.justice.gov/
16-.Drug Enforcement Administration [21 CFR 1316.50].
17-.Department of Agriculture & Food Stamps [7 CFR 273].
18-.Benefits Review Board [20 CFR 802.201(b), 802.202].
19-.Employees Compensation Appeals Board [20 CFR 501.11].
20-.National Railroad Adjustment Board* [45 U.S.C. 3153] Only entities identified in 45 U.S.C. § 151 are allowed to practice. Almost 100% of non-lawyer representation is by industry employees.
21-.Wage and Appeals Board [20 CFR 725.362(a), 725.365, 725.366(b)].
22-.Department of Transportation. https://www.transportation.gov/regulations/guidance
23-.Maritime Administration* [46 CFR 201.21]. Only registered non-lawyers are permitted to practice.
24-.Department of Veterans Affairs. *https://www.va.gov/ogc/
25-.Veterans Administration [38 CFR 14].
26-.Federal Deposit Insurance Corporation* [12 CFR 308.04]– Only qualified non-lawyers are permitted to represent.
27-.Federal Energy Regulatory Commission [18 CFR 385.2101].
28-.Federal Maritime Administration* [46 CFR 502.22]. Only registered non- lawyers are permitted to appear. Certificates of registration are issued on payment of processing fee and completion of application form indicating sufficient educational qualifications and recommendations. There is no testing or formal licensing.
29-.Federal Mine Safety & Health Review Commission* [29 CFR 2700.3(b)]. Appearances are made at trial hearings before administrative law judges and at appellate reviews before commissioners. A non-lawyer may practice only if the non-lawyer is a party, a representative of miners as described in 30 CFR§ 10.1(b), or the owner, partner, full time [sic]officer or employee of the party-business entity; otherwise a non-lawyer is permitted to appear for limited purpose in special proceedings.
30-.General Accounting Office* [31 U.S.C. 731-732; 4 CFR 11, 28; GAO Orders 2713.2, 2752.1 and 2777.1]– Permitted in adverse actions, grievance proceedings and discrimination complaints.
31-.Internal Revenue Service* [13 CFR Part 10; 31 U.S.C. 330] – Non-lawyers must become enrolled agents by passing a character and fitness review and successfully completing a special enrollment examination testing on federal taxation and related matters. A non-lawyer may also qualify based on former employment with the IRS, provided such duties qualify the individual.
32-.Interstate Commerce Commission* [49 CFR 103].Only registered non-lawyers are permitted to practice. To register, applicant must (1) meet educational and experience requirements, (2) undergo character and fitness review, (3) pass exam administered by the agency testing knowledge in the field of transportation, and (4) take an oath. See 49 CFR§ 1103.3.
33-.National Credit Union Administration [12 CFR 747].
34-.National Mediation Board [agency governed by 29 CFR 1200].
35 [et al]-.National Transportation Safety Board* [49 CFR 821, 831, 845].
36-.Occupational Safety and Health Review Commission [29 CFR 2200.22].
37-.Small Business Administration [13 CFR 121.11, 134.16].
38-.Social Security Administration [42 U.S.C. 406(a); 29 CFR].
39-.Supplemental Security Income (SSI) [20 CFR416, subpart O].
4-.U.S. Customs Service [no statute or regulation].
40-.U.S.Environmental Protection Agency [40 CFR 124, 164.30,22.10].
41-.Bureau of Indian Affairs [Act (108 Stat. 4791, 4792].
Nonlawyer Assistance and Representation: A substantial number of individuals involved in Federal “mass justice”1 agency proceedings need and desire assistance2 in filling out forms, filing claims, and appearing in agency proceedings, but are unable to afford assistance or representation by lawyers. A lack of assistance or representation reduces the probability that an individual will obtain favorable results in dealing with an agency.
Further, unassisted individuals are more likely than those who are assisted to cause a loss of agency efficiency by requiring more time, effort, and help from the agency.
Federal agencies… This recommendation does not deal with whether government aid may be needed for persons who cannot afford any form of assistance. This recommendation focuses on the potential for increasing the availability of assistance by nonlawyers. Federal agency experience and statistics indicate that qualified persons who are not lawyers generally are capable of providing effective assistance to individuals in mass justice agency proceedings… https://www.acus.gov/document/nonlawyer-assistance-and-representation
SUMMARY OF UNLICENSED PRACTICE OF LAW CASES:
To determine whether an activity constitutes the unlicensed practice of law, a two-part analysis must be performed. First, it must be determined whether the activity is the practice of law.
The second question is whether the practice is authorized. If an activity is the practice of law but the activity is authorized, then the activity is not the unlicensed practice of law and may be engaged in by a non-attorney. The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980 precedent).
The first question to address in determining whether a service or activity constitutes the unlicensed practice of law is whether the activity constitutes the practice of law. In The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962 precedent), 373 U.S. 379 (1963), the Florida State Court judge determined that establishing a broad definition of the practice of law was “well-nigh impossible” and instead developed the following test to determine whether an activity is the practice of law:
“. . .if the giving of advice and the provision of services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those receiving the advice and services 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 provision of such services by one person to another as a course of conduct constitute the practice of law.”
In applying this test, it should be kept in mind that “the most important concern in the Court’s definition and regulation of the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.” The Florida Bar v. Moses, 380 So. 2d 412, 417 (Fla. precedent 1980).
Although there is no codified definition, there is a significant body of case law that applies the Sperry test to determine whether a specific activity constitutes the unlicensed practice of law.
Additional separate note: In Sperry v. Florida, 373 U.S. 379 (appellate precedent 1963) Sperry v. Florida ex rel. Florida Bar.
The Supreme Court held:
- Florida may not prohibit a petitioner from performing within the State duties that are incidental to the preparation and prosecution of patent applications before the Patent Office. pp. 373 U.S. 381-402.
(a) The Florida Supreme Court’s determination that the preparation and prosecution of patent applications for others constitutes the practice of law, within the meaning of that State’s law, is unchallenged. 373 U.S. 383.
(b) Florida has a substantial interest in regulating the practice of law within the State and, in the absence of federal legislation on the subject, could validly prohibit non-lawyers from engaging in this restricted form of law practice. 373 U.S. 383.
(c) A federal statute, 35 U.S.C. § 31, expressly permits the Commissioner of Patents to authorize non-lawyers to practice before the Patent Office; the Commissioner has explicitly granted such authority; and Florida cannot deny those who fail to meet its own qualifications the right to perform acts within the scope of federal authority. 373 U.S. 384-385.
(d) A condition that such practice must not be inconsistent with state law cannot be read into the federal statute and regulations, thus leaving registered patent practitioners with the unconditional right to practice only in the physical presence of the Patent Office and in the District of Columbia, where that Office is currently located. pp. 373 U.S. 385-387.
(e) The legislative history of the act and its prior provisions shows that Congress recognized that registration with the Patent Office confers a right to practice before that Office, regardless of whether the state within which the practice is carried on would otherwise prohibit such conduct. pp. 373 U.S. 387-402.
(f) Since patent practitioners are authorized to practice only before the Patent Office, the state retains control over the practice of law within its borders, except to the limited extent necessary to achieve federal objectives. Page 373 U.S. 402.
- As thus interpreted, 35 U.S.C. § 31 is constitutional. Pages 373 U.S. 403-404.
(a) In establishing the Patent Office and authorizing competent persons to assist in the preparation of patent applications, Congress has not exceeded the limits of what is “necessary and proper” for the operation of the patent system established in Article I, § 8, Chapter 8, of the Constitution. P. 373 U.S. 403.
(b) Having acted within the scope of the powers “delegated to the United States by the Constitution,” Congress has not exceeded the limits of the Tenth Amendment, notwithstanding the concurrent effects of its legislation on a matter otherwise within the control of the State. P. 373 U.S. 403.
(c) In view of the standards prescribed in 35 U.S.C. § 31 to guide the Patent Office in its admissions policy, Congress cannot be said to have improperly delegated its powers to the administrative agency. Pp. 373 U.S. 403-404. https://supreme.justia.com/cases/federal/us/373/379/ [this U.S. Supreme Court decision applies to all federal agencies] to the limited extent necessary to achieve federal objectives. Page 373 U.S. 402.
- As thus interpreted, 35 U.S.C. § 31 is constitutional. Pages 373 U.S. 403-404.
(a) In establishing the Patent Office and authorizing competent persons to assist in the preparation of patent applications, Congress has not exceeded the limits of what is “necessary and proper” for the operation of the patent system established in Article I, § 8, Chapter 8, of the Constitution. P. 373 U.S. 403.
(b) Having acted within the scope of the powers “delegated to the United States by the Constitution,” Congress has not exceeded the limits of the Tenth Amendment, notwithstanding the concurrent effects of its legislation on a matter otherwise within the control of the State. P. 373 U.S. 403.
(c) In view of the standards prescribed in 35 U.S.C. § 31 to guide the Patent Office in its admissions policy, Congress cannot be said to have improperly delegated its powers to the administrative agency. Pp. 373 U.S. 403-404. https://supreme.justia.com/cases/federal/us/373/379/ [this U.S. Supreme Court decision applies to all federal agencies].
Therefore, although one cannot turn to a specific source, such as a dictionary, for a definition, in most cases, one can find out in case law whether an activity constitutes the unlicensed practice of law.
Once it is determined whether an activity is the practice of law, one must determine whether the court or other body has authorized a non-lawyer (and/or foreign attorney and paralegal) to engage in the activity.
An activity may be authorized by a judicial rule, case law, an administrative rule, or a federal rule or statute.
The following is a summary of what has been held to constitute the unlicensed practice of law in various circumstances. The activities that are authorized are also indicated. This is only a partial list of unlicensed and/or authorized practice cases. There are over 230 unlicensed practice cases/opinions reported in Florida.)
III.
- CERTIFIED PUBLIC ACCOUNTANTS:
Generally, it is an unlicensed legal practice for a certified public accountant, whether or not a CPA, to draft corporate documents. Although the accountant cannot draft the documents, he or she may sell the forms necessary to establish a corporation and complete them with information provided in writing by the individual. [Precedent: The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966); The Florida Bar v. Town, 174 So. 2d 395 (Fla. 1965)]. The general rule and exception apply to all non-attorneys.
A CPA may represent individuals before the IRS in tax matters. This practice is specifically authorized by federal law 26 C.F.R. § 601.502 and 31 C.F.R. Part 10. Because the activity is authorized by a federal rule, Florida cannot prohibit the activity as an unlicensed legal practice. The Florida Bar v. Sperry, 363 U.S. 379 (1963 precedent).
IV.
- ADMINISTRATIVE PRACTICE [FEDERAL AND STATE]:
In The Florida Bar v. Moses, 380 So. 2d 412 (1980 Fla. precedent), the Florida Supreme Court held that the legislature is constitutionally authorized to relieve the Court of its responsibility to protect the public from the unauthorized practice of law in administrative proceedings under Article V, Section 1 of the Florida Constitution, and when it does so, any conduct of “the practice of law” becomes, in effect, authorized representation. In other words, the legislature may authorize the representation of non-lawyers [foreign attorneys and paralegals] in administrative proceedings.
The activity remains the practice of law; it is merely authorized. However, to do so, the agency must have a duly promulgated rule, and the non-attorney must follow the rule’s dictates. The warrant is not a general authority to appear in any proceeding, but must be requested on a case-by-case and agency-by-agency basis.
V.
- PRO SE APPEARANCES [IN STATE AND FEDERAL COURTS]:
The general rule [state and federal] is that a person may appear pro se and represent themselves in court. State Law Fla. Stat. § 454.18. The right to appear pro se in a civil case before a federal court is contained in 28 U.S.C. § 1654.
This general rule does not apply to probate proceedings or corporations.
In a probate or estate proceeding, unless the person seeking to appear pro se is the only party with an interest in the matter, the person must be represented by a member of The Florida Bar. Rule 5.030, Rules of Probate and Guardianship, Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974 precedent). A corporation, as a fictitious entity, cannot appear pro se. Szteinbaum v. Kaes Investments Securities, 476 So. 2d 247 (Fla. 3d DCA precedent 1985).
The general rule of state law that a corporation cannot appear pro se does not apply to small claims court, as Rule 7.050 of the Small Claims Rules specifically allows a corporation to appear pro se. However, there is an exception for evictions. In those cases, a corporation cannot appear pro se and must be represented by counsel. Johnstown Properties Corp. v. Gabriel, 50 Fla. Supp. 138 (preceded by Polk County Court, Florida, 1980).
VI.
- FEDERAL PRACTICE:
Generally speaking, a person FLC must be a member of the Florida Bar to represent someone in federal court pursuant to Admission Pro Hac Vice and supposedly it should be the same pursuant to precedent Sperry once a federal agency has certify this person FLC .
In the area of federal administrative practice, if there is a rule or regulation that allows an attorney admitted in another state [and foreign attorneys FLC] or a non-attorney to appear before the agency, Florida cannot prohibit the practice of the law without a license;
This is the case in The Florida Bar v. Sperry, 373 U.S. 379 (precedent 1963). The activity is still the practice of law; it is simply authorized.
Whether the activity is permitted and the extent to which the person may appear and/or practice will be governed by the rules of that particular federal agency. However, if the agency does not have a rule permitting any representation, then it would constitute the unlicensed practice of law. The Florida Bar re: Advisory Opinion – Representation of Non-Attorneys in Securities Arbitration, 696 So. 2d 1178 (precedent Fla. 1997).
https://www.flcourts.gov/content/download/218046/file/Summary-UPL-Cases.pdf
VII.
- BUSINESS IN-HOUSE COUNSEL:
An attorney licensed to practice law in a state other than Florida [and/or another foreign jurisdiction outside the U.S.] may work in Florida as a licensed in-house counsel for a corporation if the attorney registers pursuant to Chapter 17 of the Rules Governing The Florida Bar. The activities that a licensed in-house counsel may perform are limited and do not include appearing in court [unless they seek admission pro hac vice].
VIII.
- OUT-OF-STATE ATTORNEYS [and FLC-CERTIFIED FOREIGN ATTORNEYS].
An attorney admitted to practice law in a state other than Florida [and a certified foreign attorney] may not practice general law in Florida or establish a law practice in Florida. An attorney licensed to practice law in a state other than Florida may establish an interstate practice in Florida only if the attorney follows the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).
An attorney admitted to practice law in a state other than Florida (and a certified foreign FLC attorney) may not appear in a Florida court as a representative of a party unless he or she first seeks permission to appear pro hac vice pursuant to Rule 2.510 of the Florida Rules of Judicial Administration. (It should be noted that this rule does not permit an out-of-state attorney who is a resident of Florida to appear pro hac vice.) Rule 4-5.5 of the Rules Regulating The Florida Bar describes the legal services that an out-of-state attorney may provide in Florida on a temporary basis, even if he or she is a certified foreign FLC attorney.
IX.
- DO-IT-YOURSELF LEGAL FORMS BOOKS AND KITS:
Generally speaking, a non-lawyer may sell forms and kits and complete them with information provided in writing by the client. Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978 precedent). If the non-lawyer (paralegal and/or foreign attorney) is using a Supreme Court-approved form, they may engage in limited oral communication to obtain the factual information contained in the blank spaces on the form. Rule 10-2.1(a), Rules Regulating the Florida Bar.
Generally speaking, it does not constitute the unlicensed practice of law for a non-lawyer to sell a book containing general legal information. New York County Lawyers Association v. Dacey, precedents 287 N.Y.S. 2d 422 (N.Y. 1967); 283 N.Y.S.2d 984 (N.Y. App. 1967). The book may also contain legal forms.
X.
- FEDERAL PROSECUTORIAL PRACTICE:
Federal law, Title 31 C.F.R. § 10, allows attorneys admitted in any state, FLC-certified foreign attorneys, and certain non-attorneys to represent individuals before the IRS. Similar regulations exist for the Tax Court.
The activity is the practice of law; it is merely authorized by federal regulation. Therefore, under the rulings of The Florida Bar v. Sperry, 373 U.S. 379 (preceded 1963), Florida cannot prohibit the activity as the unauthorized practice of law.
Federal regulations also permit non-attorneys to prepare federal income tax returns for individuals.
Arguably, this activity is also the practice of law and is merely authorized.
XI.
- FEDERAL PATENT PRACTICE:
Under federal law, Title 37 C.F.R. §§10.1(1), 10.6, and 10.36 permit an attorney admitted in another state or a registered patent agent [and a foreign attorney registered by this federal agency] to prepare and file patent applications with the Patent and Trademark Office. This activity is the practice of law; it is simply authorized by federal regulation.
Therefore, under the rulings of The Florida Bar v. Sperry, 373 U.S. 379 (1963), Florida cannot prohibit the activity as the unlicensed practice of law. However, the authorization granted by federal regulations does not extend to actions in state courts. Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (preceding Fla. 4th DCA 2001).
XII.
- FEDERAL PROSECUTOR PRACTICE:
Title 31 C.F.R. § 10 allows attorneys admitted in any state and some non-attorneys to represent individuals before the IRS. Similar regulations exist for the Tax Court. The activity is the practice of law; it is merely authorized by federal regulation. Therefore, under the dictates of The Florida Bar v. Sperry, 373 U.S. 379 (1963), Florida cannot prohibit the activity as the unlicensed practice of law.
Federal regulations also permit non-attorneys to prepare federal income tax returns for individuals.
Arguably, this activity is also the practice of law and is merely authorized.
XIII.
- IMMIGRATION:
Federal law, Title 8 C.F.R. §292, permits an attorney admitted in another state [and a certified and registered foreign attorney] to represent individuals before the INS [USCIS]. This permission does not extend to federal district court. The activity is the practice of law; it is authorized only by federal regulation. Therefore, under the rulings of The Florida Bar v. Sperry, 373 U.S. 379 (1963), Florida cannot prohibit the activity as the unauthorized practice of law.
This authorization generally does not extend to non-attorneys. (There are some very limited circumstances in which a non-attorney may represent someone before the INS [USCIS], such as in a one-time case without a fee.) Therefore, representing another non-attorney in an immigration matter constitutes the unauthorized practice of law. The Florida Bar v. Matus, 528 So. 2d 895 (Fla. precedent 1988); The Florida Bar v. Becerra, 661 So. 2d 299 (Fla. precedent 1995); The Florida Bar v. Lopez, 231 So. 2d 819 (Fla. precedent 1970).
XIV.
- INDIVIDUAL REPRESENTATION:
Generally speaking, a non-lawyer may not represent another person in court. An out-of-state lawyer (and FLC-certified foreign lawyer) who wishes to represent someone in a Florida court must apply for leave to appear pro hac vice in order to do so. Rule 2.510 Fla.R.Jud.Admin.
A non-lawyer may represent another person in an administrative proceeding if the agency has a duly promulgated rule permitting the activity. The Florida Bar v. Moses, 380 So. 2d 412 (Fla. precedent 1980). In a related note, the Supreme Court has held that it constitutes the unlicensed practice of law for a non-lawyer to represent a person in a securities arbitration matter.
The Florida Bar re Advisory Opinion: Representation of Nonlawyers in Securities Arbitration, 696 So. 2d 1178 (Fla. precedent 1997).
XV.
- JAILHOUSE LAWYERS:
There are several U.S. Supreme Court constitutional cases that address the issue of legal assistance for inmates. From the perspective of unlicensed legal practice, the Code of Federal Regulations and the Florida Administrative Code allow limited assistance from non-attorneys in parole and probation matters. However, a non-attorney cannot provide legal advice to an inmate, draft pleadings for the inmate, or represent them in court. The Florida Bar v. Mills, 410 So. 2d 498 (preceding Fla. 1982).
XVI.
- PREPARATION OF LEGAL DOCUMENTS:
Generally speaking, a non-attorney may sell forms, fill them out, and complete them with information provided in writing by the individual.
The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (preceded Fla. 1978).
If the non-lawyer uses a form approved by the Florida Supreme Court, they may engage in limited oral communication to obtain the factual information contained in the form’s blank spaces. Rule 10-2.1(a), R.Reg. Fla.Bar.
The non-lawyer may not make any changes to the form nor may they provide advice on possible courses of action. If the non-lawyer uses a form not approved by the Florida Supreme Court, they may only type the form’s blank spaces with information obtained in writing from the non-lawyer. This general rule has been applied in various circumstances, including the following:
XVII.
- BANKRUPTCY:
Non-lawyers may only draft bankruptcy forms from information provided by the non-lawyer in writing; they may not offer legal advice or assist in selecting forms. In re: Calzadilla, 151 B.R. 622 (precedent Bkrtcy. S.D. Fla. 1993). [Equally applicable to foreign attorneys certified as FLCs.]
XVIII.
- CORPORATE:
A non-attorney may not prepare corporate documents for another person. This includes the articles of incorporation, the corporate bylaws, and related documents. The Florida Bar v. Fuentes, 190 So. 2d 748 (precedent Fla. 1966); The Florida Bar v. Keehley, 190 So. 2d 173 (Fla. 1966). [Equally applicable to foreign attorneys certified as FLCs.]
XIX.
- DIVORCE:
The general rule discussed above applies to the area of family law. The forms contained in the family law rules are considered forms approved by the Supreme Court. A non-attorney may not make any changes to the form nor may they give advice on possible courses of action. If the non-attorney is using a form that has not been approved by the Florida Supreme Court, the non-attorney may only type the blank spaces on the form with information obtained from the individual in writing. [Same applies to FLC-certified foreign attorneys.]
XX.
- INSURANCE DOCUMENTS AND PENSION PLANS:
The Florida Supreme Court has held that a non-attorney insurance agent cannot prepare legal documents, including pension plans. The Florida Bar v. Turner, 355 So. 2d 766 (Fla. precedent 1978).
However, in the area of pension plans, the Court has held that certain non-attorneys [and FLC-certified foreign attorneys] who are authorized to appear before the IRS may draft certain pension documents, including the plan itself. The Fla. Bar re: Advisory Opinion – Nonlawyer Preparation of Pension Plans, 571 So. 2d 430 (Fla. precedent 1990).
XXI.
- PROBATE:
The general rule has been applied to the area of probate. The Florida Supreme Court has held that it constitutes the unlicensed practice of law for a non-lawyer to draft a living trust and related documents for another person. The Florida Bar re: Advisory Opinion on Preparation of Living Trusts by Non-Lawyers, 613 So. 2d 426 (Fla. 1992). The Court has also held that a non-lawyer cannot draft a will for a third party. The Florida Bar v. Larkin, 298 So. 2d 371 (Fla. 1974). However, a non-lawyer corporate creditor may file a statement of claim in a probate matter. Summit Pool Supplies v. Price, 461 So. 2d 272 (Fla. 5th DCA 1985). [Applicable to FLC-certified foreign attorneys unless they apply for pro hac vice admission.]
XXII.
REAL PROPERTY (INCLUDING REAL ESTATE LICENSEES AND TITLE INSURANCE COMPANIES):
In 1950, the Florida Supreme Court held that a real estate licensee may prepare the contract for the sale of real estate, but any other document must be prepared by a member of The Florida Bar. Keyes Co. v. Dade County Bar Association, 46 So. 2d 605 (Fla. precedent 1950).
The drafting of the contract is considered the practice of law; an unlicensed person cannot draft the contract. The Court simply carved out an exception for licensees.
Later, the Court carved out an exception for title insurance companies. In The Florida Bar v. McPhee, 195 So. 2d 552 (Fla. precedent 1967), the Court held that a title insurance company may perform the closing. and prepare documents related to the issuance of title insurance only if the company is actually issuing title insurance. Again, this activity is the practice of the law. These individuals are authorized to do so only in limited circumstances.
As for others, the Court has held that it constitutes the unlicensed practice of law for a non-lawyer to prepare a warranty deed, quitclaim deed, land trust, lease, and mortgage agreement.
Florida Bar v. Irizarry, 268 So. 2d 377 (Fla. precedent 1972); Florida Bar v. Hughes, 697 So. 2d 501 (Fla. precedent 1997); Florida Bar v. Lister, 662 So. 2d 1241 (Fla. precedent 1995); Florida Bar v. Valdes, 464 So. 2d 1183 (Fla. precedent 1985) (there are three Supreme Court-approved leases that non-lawyers [and certified foreign attorneys] may complete with information provided orally by the individual). However, a licensed agent may bid at a judicial foreclosure sale. Heilman v. Suburban Coastal Co., 506 So. 2d 1088 (preceded by Fla. 4th DCA 1987).
XXIII.
- LEGAL LAW SEMINARS:
A non-attorney may conduct a seminar CLE providing general legal information; however, they may not provide specific legal advice. The Florida Bar v. Raymond, James and Associates, Inc., 215 So. 2d 613 (Fla. 1968). Therefore, while a non-attorney may provide general information, they cannot answer specific legal questions.
XXIV.
CONCLUSION
For the reasons stated, this Amicus Curiae Brief Memorandum should be admitted in support of foreign lawyers certified as “FLC” in Florida under the admission rule Chapter 16 of the Rules Governing The Florida Bar.
DATE: March 24, 2025.
Respectfully submitted,
Humphrey H. Pachecker — Christopher Martin Waine — Juan (John) Rey Rodriguez
Professor of Law JD LLM Professor of Law JD Professor of Law JD
Sebring, Florida Madrid, Spain San Juan, Puerto Rico
Dr.pachecker@ymail.com icorte@ymail.com juan.rey40@yahoo.com
Available for public domain. This work is no longer protected by copyright law, allowing anyone to freely use, copy, distribute, adapt, or create derivative works from it, without permission or restrictions.
