The Cost of Remaining Silent about the Unlicensed Practice of Law

by
John R. Frazier, J.D., LL.M., MBA

www.EstateLegalPlanning.com

Your elderly mother, who is recovering in a nursing home from a broken hip, suffers a stroke. She now must become a permanent resident, and no longer has the capacity to make decisions for herself.

When you first placed your mother in the nursing home, a non-attorney helped you and your mother draft a simple durable power of attorney. You understood that this was an important legal document. It would allow you to make financial decisions for your mother, in the event she is no longer able to make her own decisions.

Now you rush over to your lawyer to ask him to help your mother apply for Medicaid to help pay the costs of long-term nursing home care (which will be around $6,000 per month.)

After reviewing the existing durable power of attorney, your lawyer tells you it does not contain the specific powers and provisions needed for Medicaid planning to be possible.

The scene above is one of many scenarios that I watch unfold in my practice as an Elder Law attorney. It is just one example of what can happen when non-attorneys and lay people engage in the Unlicensed Practice of Law.

What is the Unlicensed Practice of Law?

In its most basic form, the Unlicensed Practice of Law, commonly referred to as UPL, occurs when a person who is not a licensed attorney engages in the practice of law.

So first, we need to ask what is the ‘Practice of Law?’

This is where the water becomes murky, because a single, universal definition of the Practice of Law does not necessarily exist.

Lawyers are licensed state-by-state. Therefore, individual definitions of the Practice of Law are adopted by each state, making each state’s statutes and definitions vary.

Here is an excerpt from Florida’s definition:

It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court. ⁽¹⁾

Likewise, there is no universal definition of the unlicensed practice of law. Still, there is a great deal of case law dealing with UPL. In fact, figuring out whether an activity by a non-attorney is the unlicensed practice of law – such as drafting legal documents – is largely done through the examination of existing case law.

To get an idea of what I mean, here are a few examples of case law where the Court has ruled on non-attorneys engaging in UPL:

In a 1992 advisory opinion matter, the Supreme Court held that it is the unlicensed practice of law for a nonlawyer to assemble, draft, execute and fund a living trust for a third party. ⁽²⁾
The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. ⁽³⁾
Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. ⁽⁴⁾
The amateur at law is as dangerous to the community as an amateur surgeon. ⁽⁵⁾

We begin to see components that may be common to each state’s laws about UPL, which pertain to the following activities:

the selection, preparation, and drafting of legal documents
giving legal advice
representing a party in court.

In Florida, practicing law without a license is a crime. It is a third degree felony.

UPL happens in various forms. It can happen in any area of law, from estate planning to real estate to personal injury. Sometimes the unauthorized practice of law is unintentional. In other cases, someone may falsely claim to be a lawyer, or someone may deliberately offer legal services without being qualified as an attorney. In any case, these actions can bring harm to the recipient of these “services.”

As an attorney who works closely with the elderly, I have a particular concern about the occurrence of UPL with respect to senior citizens and their families. They are doing their best to handle serious health matters, complex financial affairs, and long-term care expenses.

In other professional services, clients are represented by agents. Florida is experiencing an increase of individuals who are licensed to sell life insurance and annuities. In some cases, they have no license at all. There are those insurance agents and financial planners who hold themselves out to the public to help individuals become qualified for Medicaid.

These agents and planners are within the law to sell these annuities and to serve as a designated representative for a Florida Medicaid application – however, the drafting of legal documents, such as personal services contracts and qualified income trusts, arguably rises to the level of the unlicensed practice of law.

According to FloridaBar.org, “the only thing a nonlawyer can do legally for someone is sell you a pre-printed form and type in the information that you provide to them. They cannot tell you what information you should put on the form or what type of form to use. They cannot help you fill it out. Basically, the nonlawyer can act as a secretary or typist.”

UPL is alive and kicking in Florida.

In Florida, there appears to be a growing trend of UPL in Medicaid planning services. What’s worse, the public is rarely reporting it.

I have seen the consequences that financial planners and insurance agents can cause by selling annuities to Medicaid applicants, where their actions are not in the best interest of the applicant.

How important is this?

Most nursing home residents’ single most important issue is trying to pay for long-term care.

Consider paying $6,000 to $8000 per month in nursing home bills over the course of one year, or two years, or more. There are not many among us who have $70,000 or more extra dollars to contribute annually. Additionally, the majority of our elders cannot afford to pay for or do not have long-term care insurance

The answer for most people is to qualify for Medicaid.

The Medicaid program was created to help seniors avoid impoverishment due to the extreme costs associated with long-term care. Medicaid planning involves the use of various legal strategies to obtain Medicaid qualification for people who otherwise would not be qualified for Medicaid.

Even with last-minute Medicaid crisis planning, there are significant opportunities available to qualify for Medicaid assistance.

The financial stakes are very high in Medicaid cases. When our elders are given improper legal counsel by non-attorneys, their chances of restructuring their assets and income to achieve Medicaid program approval are severely damaged.

This can undermine the financial goals of unsuspecting seniors and their families – essentially wiping out in months what it took a lifetime to save.

In order for UPL to be managed, somebody must report it.

To compound the problem, as a general rule the Florida Bar will not open a UPL case without someone filing a UPL complaint with the Bar.

The Florida Bar, as an arm of the Supreme Court, is the state authority charged with investigating matters pertaining to the unlicensed practice of law and with the prosecution of offenders. All complaints alleging unlicensed practice of law must be signed, in writing, and under oath.

Nobody wants to be a whistleblower.

There is an historic reluctance for people to report on others in the United States. Exposing information about others’ wrong or damaging actions is considered unacceptable behavior by many.

Good, hardworking citizens typically resent tattletales. We are taught in kindergarten not to tell or tattle. Ratting on others is viewed as a betrayal of loyalty, which leads to fear of being ostracized by our co-workers and peers.

So, the stigma of “snitching” creates a sort of “code of silence” from the shame of being labeled an informant.

Like beauty, snitching is in the eye of the beholder

Our unwillingness to blow the whistle on others conflicts with our country’s very beginnings. James Madison, Patrick Henry and other founding fathers of our country – all heroes to Americans – were all traitors and felons in the eyes of British law.

Their betrayal to Britain, their own country, gave birth to our country. The United States would not exist if any of the founding fathers had been afraid to rock the boat or be the voice of protest against injustice.

The justification of filing an official UPL protest – “snitching” if you will – lies in the intent. Informing on the unlicensed practice of law is not a self-serving endeavor, but is in the public interest. What our founding fathers intended when they composed the First Amendment was to make sure there was an institution in place that would be a watchdog. Without the First Amendment, protesters would be silenced.

Where would we be today without other inspired “snitches,” whose intensions were not for personal gain, but for clarity and public good?

We would not have learned about Enron’s accounting scandals if Sherron Watkins didn’t step forward to tell the truths that she was privy to, in order to steer her own institution in the right direction.

Because of testimony from FBI Agent Coleen Rowley before the Senate and the 9/11 Commission, we learned of the FBI’s mishandling of evidence of terrorist plots leading up to the Sept. 11 attacks. Powerful changes within the FBI are the result.

Informants from the politics of the 1970’s were White House counsel to President Nixon, John Dean, and Deep Throat of Watergate fame. Their information and testimony uncovered serious truths that proved a valuable service to our country.

The “Catch-22” of UPL

In effect, the Florida Bar is relying on its citizens to be the watchdogs and whistleblowers, with respect to investigating the Unlicensed Practice of Law in Florida.

Yet few people are willing to file UPL complaints. The absence of reporting UPL in turn encourages its continuance.

We have a responsibility to one another – and it seems especially to our unsuspecting seniors and their families. Reluctance to take a legitimate case of UPL to the Florida Bar leaves these individuals in a tragically vulnerable situation.

What is our duty?

It is my view that by reporting UPL, the higher virtue is served by respecting the well-being of others. It is acting responsibly on behalf of society by reporting bad behavior.

In most legal situations, people do not know what they really need. That is because they are unaware of the many legal and financial solutions that an attorney will offer.

Legal documents are only as good as they are drafted. Legal advice is only as good as the attorney providing it. Standard legal forms are a dime a dozen, yet each one becomes an incredibly powerful written instrument.

These considerations are not an attempt to drive non-lawyer legal document preparers or paralegals out of business on UPL grounds. This is not an attempt protect some sort of attorney monopoly on legal services, taking away cheaper alternatives for people who desire to go that route. Neither is this an attempt to take away conveniences for consumers.

The purpose of this discussion is to protect the public. It is a wake up call to all of us. It is up to our very own citizens to open up communication between the community and the Florida Bar.

It is also a matter of education. Many UPL victims are unaware they have been victimized until it is too late. They may be ashamed or embarrassed about putting their trust in the wrong hands. On the flip side, many offenders are ignorant about the severity of their own actions.

As stated by the Florida Bar, “The main purpose of UPL investigations and prosecutions is protection of the public from fraud and bad advice affecting legal rights.”

Please visit www.FloridaBar.org to learn what you can do to help slow the surge – and perhaps even put an end to – the unlicensed practice of law in Florida.

Each state’s Bar will have its own mechanism for the same.

Curious about how the “Practice of Law” is defined in your state?

The American Bar Association provides a listing of each state’s definition of the “Practice of Law”.

Author’s Note:

Along with their roles in the founding of our country, James Madison and Patrick Henry were founding members of the Board of Trustees of Hampden-Sydney College in Virginia. This fact actually influenced me as a high school student to apply to Hampden-Sydney College, now my Alma Mater.

Article Index

Footnotes:

⁽¹⁾ State ex rel. The Florida Bar v. Sperry, 140 So.2d 587, 591 (1962)

⁽²⁾ The Florida Bar Re: Advisory Opinion – Nonlawyers Preparation of Living Trusts. 613 So. 2d 426; December 24, 1992

⁽³⁾ State v. Despain, 319 S.C. 317, 319, 460 S.E.2d 576, 578 (1995).

⁽⁴⁾ State v. Buyers Service Co., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987).

⁽⁵⁾ In re Baker, 8 N.J. 321, 85 A.2d 505, 514 (1951)