Monday, June 25, 2012

Florida Bar Revisits Issue of Licensed Community Association Managers and UPL

Last week, the Florida Bar's Standing Committee on the Unauthorized Practice of Law met in Orlando to once again discuss the issue of what does and does not constitute the "unauthorized practice of law" insofar as activities being undertaken by licensed community association managers.

In 1996, the Florida Supreme Court held that: (1) ministerial actions taken by CAMs which do not require significant legal expertise and interpretation do not constitute the unauthorized practice of law, such as completing various forms and drafting of notices, but (2) CAMs would violate the bar against the unauthorized practice of law by drafting documents requiring a legal description of property or establishing rights of the community association by making determinations and drafting documents requiring interpretations of statutes and various rules, or by giving advice as to the legal consequences of taking certain courses of action.

The topic of the unauthorized practice of law as it pertains to professional advisors assisting volunteer boards across Florida is certainly worthy of discussion. However, the lengthy list of items being debated by the UPL Committee suggests that there might be a real disconnect between what constitutes "practicing law" and what constitutes "following the law".

Practicing law is generally understood as "appearing before courts," and includes "giving legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments including contracts...etc"

Shouldn't the distinction between following the law as opposed to practicing it be crafted in a common sense fashion? "Determination of affirmative votes" or "Approving new owner documents" can usually be categorized as following the law and the association’s particular governing documents, and is quite different from drafting a document amendment, preparing a lien or a pre-arbitration demand letter.

If there is ambiguity or confusion on whether or not the activity is ministerial or legal, then obtaining advice from a Florida attorney in good standing would be prudent and should be required. In the absence of any such ambiguity or confusion, however, a volunteer board and its manager should be allowed to evaluate the risk/reward in the specific approach/decision that is being considered and proceed in the best interests of the association membership.

It appears to be in the best interests of common interest ownership communities throughout Florida to allow reasonable and capable licensed CAMs and Board members to exercise common sense and judgment in each particular situation when the contemplated activity constitutes “following the law” as opposed to practicing it. Having to run to an attorney to tell you how many owners are needed to pass an amendment when the answer can be found quite simply in many instances can either be categorized as overkill or territorialism on the part of some attorneys pushing for these changes.

It would not be in the best interests of common interest ownership communities to create an arbitrary or petty list of "activities or decisions" that must have a legal opinion. More than half of the state’s approximately 60,000 community associations have fewer than 50 units or lots. The UPL Committee should bear in mind the potential economic impact of its ultimate decision on these small associations should these boards feel they cannot act without the benefit of legal counsel on daily operational matters and thus, refrain from acting altogether to their communities’ detriment.

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