FLORIDA BAR v. BRUMBAUGH No. 48803.
355 So.2d 1186 (1978)
The FLORIDA BAR, Petitioner, v. Marilyn R. BRUMBAUGH, Respondent.
Supreme Court of Florida.
Rehearing Denied April 5, 1978.
R. Layton Mank, Chairman, Standing Unauthorized Practice of Law Committee, Miami, Richard C. McFarlain, Asst. Director-Legal, Tallahassee, Young Joe Simmons, Counsel, Ocala and William B. Wiley and John A. Weiss, Asst. Staff Counsels, Tallahassee, for The Florida Bar, petitioner.
Marilyn R. Brumbaugh, in pro. per.
The Florida Bar has filed a petition charging Marilyn Brumbaugh with engaging in the unauthorized practice of law, and seeking a permanent injunction prohibiting her from further engaging in these allegedly unlawful acts. We have jurisdiction under our constitutional authority to adopt rules for the practice and procedure in all the courts of this state. Article V, Section 2(a), Florida Constitution (1968). We now those acts of respondent which we deem to constitute the unauthorized practice of law, and ordering her to stop such activities.
Respondent, Marilyn Brumbaugh, is not and has never been a member of the Florida Bar, and is, therefore, not licensed to practice law within this state. She has advertised in various local newspapers as "Marilyn's Secretarial Service" offering to perform typing services for "Do-It-Yourself" divorces, wills, resumes, and bankruptcies. The Florida Bar charges that she performed unauthorized legal services by preparing for her customers those legal documents necessary in an uncontested dissolution of marriage proceeding and by advising her customers as to the costs involved and the procedures which should be followed in order to obtain a dissolution of marriage. For this service, Ms. Brumbaugh charges a fee of $50.
Of course, we must determine whether the Florida Bar has presented sufficient evidence in the record before us to prove that respondent has engaged in the unauthorized practice of law. But, in cases such as this, the Florida Supreme Court is not confined to act solely in its judicial capacity. In addition, it acts in its administrative capacity as chief policy maker, regulating the administration of the court system and supervising all persons who are engaged in rendering legal advice to members of the general public. Such authority carries with it the responsibility to perform this task in a way responsive to the needs and desires of our citizens. This principle has long been our goal. In State v. Sperry,
The Florida Bar as an agent of this Court, plays a large role in the enforcement of court policies and rules and has been active in regulating and disciplining unethical conduct by its members. Because of the natural tendency of all professions to act in their own self interest, however, this Court must closely scrutinize all regulations tending to limit competition in the delivery of legal services to the public, and determine whether or not such regulations are truly in the public interest. Indeed, the active role of state supreme courts in the regulation of the practice of law (when such regulation is subject to pointed reexamination by the state court as policy maker) is accorded great deference and exemption from federal interference under the Sherman Act. Bates v. State Bar of Arizona,
With regard to the charges made against Marilyn Brumbaugh, this Court appointed a referee to receive evidence and to make findings of fact, conclusions of law, and recommendations as to the disposition of the case. The referee found that respondent, under the guise of a "secretarial" or "typing" service prepares, for a fee, all papers deemed by her to be needed for the pleading, filing, and securing of a dissolution of marriage, as well as detailed instructions as to how the suit should be filed, notice served, hearings set, trial conducted, and the final decree secured. The referee also found that in one instance, respondent prepared a quit claim deed in reference to the marital property of the parties. The referee determined that respondent's contention that she merely operates a typing service is rebutted by numerous facts in evidence. Ms. Brumbaugh has no blank forms either to sell or to fill out. Rather, she types up the documents for her customers after they have asked her to prepare a petition or an entire set of dissolution of marriage papers. Prior to typing up the papers, respondent asks her customers whether custody, child support, or alimony is involved. Respondent has four sets of dissolution of marriage papers, and she chooses which set is appropriate for the particular customer. She then types out those papers, filling in the blank spaces with the appropriate information. Respondent instructs her customers how the papers are to be signed, where they are to be filed, and how the customer should arrange for a final hearing.
Marilyn Brumbaugh, who is representing herself in proceedings before this Court, has made various objections to the procedure and findings of fact of the referee. Respondent alleges that the referee has an inherent conflict of interest because he is a lawyer and a member of The Florida Bar. She asserts that "all lawyers have a property interest in this case, because they have been making money, running typing services, without proper licenses." She further alleges that the referee did not provide her with a proper hearing, that he threw her in jail for pleading the Fifth Amendment, and denied her her constitutional right to a jury trial. Respondent argues that she has never held herself out as an attorney, and has never professed to have legal skills. She does not give advice, but acts merely as a secretary. She is a licensed counselor, and asserts the right to talk to people and to let her customers make decisions for themselves. Finally, respondent contends that her civil rights have been violated, and that she has been denied the right to make an honest living.
This case does not arise out of a complaint by any of Ms. Brumbaugh's customers as to improper advice or unethical conduct. It has been initiated by members of The Florida Bar who believe her to be practicing law without a license. The evidence introduced at the hearing below shows that none of respondent's customers believed that she was an attorney, or that she was acting as an attorney in their behalf. Respondent's advertisements clearly addressed themselves to people who wish to do their own divorces. These customers knew that they had to have "some type of papers" to
The Florida Bar argues that the above activities of respondent violate the rulings of this Court in The Florida Bar v. American Legal and Business Forms, Inc.,
Although persons not licensed as attorneys are prohibited from practicing law within this state, it is somewhat difficult to define exactly what constitutes the practice of law in all instances. This Court has previously stated that:
Sperry, supra, 140 So.2d at 591.
This definition is broad and is given content by this Court only as it applies to specific circumstances of each case. We agree that "any attempt to formulate a
In determining whether a particular act constitutes the practice of law, our primary goal is the protection of the public. However, any limitations on the free practice of law by all persons necessarily affects important constitutional rights. Our decision here certainly affects the constitutional rights of Marilyn Brumbaugh to pursue a lawful occupation or business. Prior v. White, 132 Fla. 1, 180 So. 347 (1938); State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394 (1936); State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225 (1929). Our decision also affects respondent's First Amendment rights to speak and print what she chooses. In addition, her customers and potential customers have the constitutional right of self representation, Faretta, supra, and the right of privacy inherent in the marriage relationship, Roe v. Wade,
The policy of this Court should continue to be one of encouraging persons who are unsure of their legal rights and remedies to seek legal assistance from persons licensed by us to practice law in this state. However, in order to make an intelligent decision as whether or not to engage the assistance of an attorney, a citizen must be allowed access to information which will help determine the complexity of the legal problem. Once a person has made the decision to represent himself, we should not enforce any unnecessary regulation which might tend to hinder the exercise of this constitutionally protected right. However, any restriction of constitutional rights must be "narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, supra, NAACP v. Button,
It is also important for us to consider the legislative statute governing dissolution of marriage in resolving the question of what constitutes the practice of law in this area. Florida's "no fault" dissolution of marriage statute clearly has the remedial purpose of simplifying the dissolution of marriage whenever possible. Section 61.001, Florida Statutes (1975) states:
Families usually undergo tremendous financial hardship when they decide to dissolve their marital relationships. The Legislature simplified procedures so that parties would not need to bear the additional burden of expensive legal fees where they have agreed to the settlement of their property and the custody of their children. This Court should not place unreasonable burdens upon the obtaining of such divorces, especially where both parties consent to the dissolution.
Present dissolution procedures in uncontested situations involve a very simplified method of asserting certain facts required by statute, notice to the other parties affected, and a simple hearing where the trial court may hear proof and make inquiries as to the facts asserted in those pleadings.
The legal forms necessary to obtain such an uncontested dissolution of marriage are susceptible of standardization. This Court has allowed the sale of legal forms on this and other subjects, provided that they do not carry with them what purports to be instructions on how to fill out such forms or how they are to be used. The Florida Bar v. American Legal and Business Forms, Inc., supra; The Florida Bar v. Stupica, supra. These decisions should be reevaluated in light of those recent decisions in other states which have held that the sale of forms necessary to obtain a divorce, together with any related textual instructions directed towards the general public, does not constitute the practice of law. The reasons for allowing the sale of such legal publications which contain sample forms to be used by individuals who wish to represent themselves are persuasive. State Bar of Michigan v. Cramer, supra, reasoned that such instructional material should be no more objectionable than any other publication placed into the stream of commerce which purports to offer general advice on common problems and does not purport to give a person advice on a specific problem particular to a designated or readily identified person. In Bates v. State Bar of Arizona,
Although there is a danger that some published material might give false or misleading information, that is not a sufficient reason to justify its total ban. We must assume that our citizens will generally use such publications for what they are worth in the preparation of their cases, and further assume that most persons will not rely on these materials in the same way they would rely on the advice of an attorney or other persons holding themselves out as having expertise in the area. The tendency of persons seeking legal assistance to place their trust in the individual purporting to have expertise in the area necessitates this Court's regulation of such attorney-client relationships, so as to require that persons giving such advice have at least a minimal amount of legal training and experience. Although Marilyn Brumbaugh never held herself out as an attorney, it is clear that her clients placed some reliance upon her to properly prepare the
Accordingly, having defined the limits within which Ms. Brumbaugh and those engaged in similar activities may conduct their business without engaging in the unauthorized practice of law, the rule to show cause is dissolved.
It is so ordered.
OVERTON, C.J., and ADKINS, BOYD and HATCHETT, JJ., concur.
KARL, J., concurs specially with an opinion, with which OVERTON, C.J., ADKINS and BOYD, JJ., concur.
KARL, Justice, concurring specially.
There is a popular notion that every attempt to define the practice of law and restrict the activities within the definition to those who are authorized to practice law is nothing more than a method of providing economic protection for lawyers. I recognize that a small number of attorneys who advocate a broad definition of the practice coupled with severe penalties for those who encroach are motivated by economic self-interest. Indeed, regardless of motive, any law or rule that stakes out an area "for lawyers only" will result in some incidental benefit to those who are authorized to practice law — a form of serendipity for them.
What is often lost in the rush to condemn members of the legal profession for alleged selfishness is the existence of a genuine need to protect the public from those who are willing to give legal advice and render legal service, for their own profit, without being competent to do so and without being subject to restraint and punishment if they cause damage to some unsuspecting and uninformed persons in the process. Just as the public must be protected from physical harm inflicted by those who would prescribe drugs and perform surgery without proper training, so must we provide protection from financial and other damage inflicted by pseudo-lawyers.
We could develop a perfect set of disciplinary rules for attorneys and establish a procedure that quickly disbars and delicenses those who violate the rules, but if we should then permit nonmembers of the bar, including those who have been disbarred, to engage in the same activities as lawyers, we would have accomplished nothing. The members of the public would still be in serious jeopardy.
The problem, so well articulated in the majority opinion, is where to draw the lines
I concur with the majority because I am persuaded that the definition of the practice of law developed in The Florida Bar v. American Legal and Business Forms, Inc.,
OVERTON, C.J., and ADKINS and BOYD, JJ., concur.
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