Unauthorized Practice of Law
Definition of the Practice of Law:
The practice of law shall be performed only by those authorized by the highest court of this jurisdiction.
Definitions:
The "practice of law" is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.
"Person" includes the plural as well as the singular and denotes an individual or any legal or commercial entity.
A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:
Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;
Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;
Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or
Negotiating legal rights or responsibilities on behalf of a person.
New Jersey: Unauthorized Practice of Law
Rules:
New Jersey Cases:
Holding of this case: Supports Troyan's opinion only a Licensed Attorney may prepare a legal document (i.e. QDRO)
Supports Troyan's that Legal duty cannot be delegated to a non-lawyer. A QDRO is a legal document to be prepared by a Licensed Attorney.
Notary Public Cannot Prepare Legal Documents (i.e. QDRO)
Non Lawyer Cannot Prepare Legal Documents - Real Estate (i.e. QDRO)
Reciprocal Discipline: Non Lawyer prepared Legal Documents in Florida - New Jersey recommended identical action. (i.e. QDRO's cannot be prepared in FL by non lawyer so presume also not allowed in NJ
Accountant drafting legal documents - corporate is Unauthorized Practice of Law. (QDRO is a legal document requires skill of Licensed Attorney)
American Bar Association - Serious Consequences for Lawyer Delegating Legal Work to nonlawyer.
Florida: Unauthorized Practice of Law: The Florida Bar considers the preparation of a QDRO to be legal activity and has pursued unauthorized practice of law (UPL) actions against non-attorneys who prepare QDROs.
Rules:
Rule 4-5.5, Rules Regulating The Florida Bar, If an Attorney hires a non-attorney to prepare a Qualified Domestic Relations Order which is a legal document, is in violation of this rule which prohibits an attorney from assisting in the unlicensed practice of law. Advisory Opinion MEAC 2007-005
Rule 4-5.3, Rules Regulating The Florida Bar, If an attorney hires a non-attorney to prepare a legal document / Qualified Domestic Relations Order that attorney has delegated a legal duty to a non-lawyer and in the event of a malpractice lawsuit professional liability insurers will likely disallow the claim. Since drafting Qualified Domestic Relations Orders is a legal function which requires an attorney to directly supervise nonlawyers who are employed or retained by the attorney.
Preparation of Legal Documents: A nonlawyer may not sell QDROs or Fill in blanks in QDROs.
A nonlawyer may sell forms and complete the form with information provided in writing by the individual. The Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978). If the nonlawyer is using a form approved by the Supreme Court of Florida, the nonlawyer may engage in limited oral communication to elicit the factual information that goes in the blanks of the form. Rule 10-2.1(a), R.Reg.Fla.Bar. The nonlawyer may not make any changes to the form and may not give advice on possible courses of action. If the nonlawyer is using a form which has not been approved by the Supreme Court of Florida, the nonlawyer may only type the blanks on the form with information obtained from the individual in writing.
Divorce Cases Specifically:
If a form has not been Approved by Supreme Court of Florida it CANNOT be completed by a nonlaywer. NO QDROs have been approved by the Court.
Forms contained in the family law rules are considered Supreme Court Approved forms. The nonlawyer may not make any changes to the form and may not give advice on possible courses of action.
ACCOUNTANTS and C.P.A.'s Drafting QDROs is the UNAUTHORIZED PRACTICE OF LAW:
It constitutes the unlicensed practice of law for an accountant, whether or not a CPA, to draft legal documents. QDRO's are legal documents, accountants may not draft the documents. The Florida Bar v. Fuentes, 190 So. 2d 748 (Fla. 1966); The Florida Bar v. Town, 174 So. 2d 395 (Fla. 1965).
Practice of Law Either Expressly or Impliedly is the UNAUTHORIZED PRACTICE OF LAW:
If a nonlawyer is preparing a QDRO that is considered the implied practice of law and it constitutes the unlicensed practice of law (The Fla. Bar v. DeToma, 501 So. 2d 599 (Fla. 1987)).