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Subject: Writing Documents is determined to be practicing law in FL
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TimB4
(Virginia)

Posts:16700


01/03/2016 4:56 PM  
A year or so ago, a member of this forum (who was also a property manager) accused many on this forum of practicing law without a license because we were offering interpretations of State Statutes.

This caused an interesting discussion. Perhaps the following will also provide an interesting discussion:

It appears that if a PM or MC assists the Board in rewriting or creating governing documents, that this is considered practicing law without a license in FL.


Here is a link to the FL Supreme Court opinion (dated 5/14/2015):
THE FLORIDA BAR RE: ADVISORY OPINION — ACTIVITIES OF COMMUNITY ASSOCIATION MANAGERS.

Here is an article from an attorney blog about that opinion:
Amending an Association’s Governing Documents is the Practice of Law…at least in Florida
TimB4
(Virginia)

Posts:16700


01/03/2016 5:10 PM  
Here are a few more articles on the topic:

Court clarifies tasks community association managers can perform from the FL Bar News

Florida Community Association Managers: Are you breaking the law? from a community association managers blog (forum)

BobD4
(up north)

Posts:916


01/03/2016 5:40 PM  
Posted By TimB4 on 01/03/2016 4:56 PM
A year or so ago, a member of this forum (who was also a property manager) accused many on this forum of practicing law without a license because we were offering interpretations of State Statutes. . . . This caused an interesting discussion. . . ."

TimB4 Va : To presumably follow his own criteria the Forum member above must be a licensed attorney. Or is not only himself herself practicing unlicensed law by posting that statement but practicing clairvoyance ( unless he/she has checked the rolls of licensed attorneys & paralegals ).

Public comment on public domain legal issues & judgments, respectfully is not practising law.

Do you happen to have a URL for that interesting past topic ?

GenoS
(Florida)

Posts:3673


01/03/2016 6:02 PM  
The offense of practicing law without a license should be limited to holding yourself out to be a licensed attorney when you're not, and charging for legal advice when you're not. If my board passed a no-American-flag rule and I told the others that such a rule is against the law, would I be practicing law without a license? Too many in Florida would argue that I was. It's absurd. I regularly tell the other board members that we are in violation of Florida Statutes when it comes to funding our reserves. The others disagree with me and refuse to ask the association attorney for his opinion. I stand my ground and tell them they're breaking the law. Am I guilty there of practicing law without a license?

We've got a written legal opinion in our HOA archives which says an attorney is not required for the association to draft and pass amendendments to the governing documents and file them with the county. In fact, he advised us to do exactly that in order to save money. That opinion is probably outdated today but nevertheless represented a reasonable opinion at the time. Most of this "practicing law without a license" nonsense in Florida is aimed squarely at preserving cash flow for attorneys in the Sunshine State, nothing more and nothing less. It has nothing to do with justice.

Stopping unscrupulous property managers who would otherwise want to divert HOA cash into their own pockets in return for "legal advice" they're not qualified to give is one thing but they've plotted a course in this state that leads straight to fantasy land.
TimB4
(Virginia)

Posts:16700


01/03/2016 6:49 PM  
Sorry Bob.

I was unable to locate it when I looked for it.
I'll keep looking and if I find it, I'll post it.
TimB4
(Virginia)

Posts:16700


01/03/2016 6:51 PM  
Geno,

Keep in mind that, as I read it, the opinion only applies to PMs and MCs. It does not prohibit individual owners or the Association itself from drafting documents or doing any of those things. I believe that this applies to PM/MCs because they are being paid for the work (but I do not know that for a fact).

NpS
(Pennsylvania)

Posts:3987


01/03/2016 7:19 PM  
Posted By TimB4 on 01/03/2016 6:51 PM
Keep in mind that, as I read it, the opinion only applies to PMs and MCs. It does not prohibit individual owners or the Association itself from drafting documents or doing any of those things. I believe that this applies to PM/MCs because they are being paid for the work (but I do not know that for a fact).

Agree with your reading that the opinion only applies to PMs and MCs.

Not sure if you are correct re Directors. Many organizing docs and/or insurance policies that I have seen include a clause that Directors have D&O coverage if they rely on the advice of an expert. Those clauses are typically silent about board decisions that do not involve consultation with an expert - So it's appears to be open ended.

In this opinion, the FL Supreme Court says that MCs can perform "ministerial" acts (follow clear-cut rules), but would have to be lawyers if they are going to give opinions on essential rights (maybe like Geno's issue of deciding what limits can be put on flying a flag).

So my next question would be - Would Directors be personally liable (lose D&O coverage) if they rely on Geno or on the MC?

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3987


01/03/2016 7:32 PM  
Posted By GenoS on 01/03/2016 6:02 PM
The offense of practicing law without a license should be limited to holding yourself out to be a licensed attorney when you're not, and charging for legal advice when you're not. If my board passed a no-American-flag rule and I told the others that such a rule is against the law, would I be practicing law without a license? Too many in Florida would argue that I was. It's absurd. I regularly tell the other board members that we are in violation of Florida Statutes when it comes to funding our reserves. The others disagree with me and refuse to ask the association attorney for his opinion. I stand my ground and tell them they're breaking the law. Am I guilty there of practicing law without a license?

We've got a written legal opinion in our HOA archives which says an attorney is not required for the association to draft and pass amendendments to the governing documents and file them with the county. In fact, he advised us to do exactly that in order to save money. That opinion is probably outdated today but nevertheless represented a reasonable opinion at the time. Most of this "practicing law without a license" nonsense in Florida is aimed squarely at preserving cash flow for attorneys in the Sunshine State, nothing more and nothing less. It has nothing to do with justice.

Stopping unscrupulous property managers who would otherwise want to divert HOA cash into their own pockets in return for "legal advice" they're not qualified to give is one thing but they've plotted a course in this state that leads straight to fantasy land.

IMO, the reason that CA, TX, and FL are the most regulated HOA states is that they have the most lawsuits. More lawsuits, more regulation. More regulation, more lawsuits.

I think Tim is correct that you are not practicing law if you, as a Director, express you opinion to your other Board members - No one expects you to be an expert in the law - You are not holding yourself out as an expert in the law. Then again, your other Board members can reject your opinion on the same basis - You are not an expert in the law. No harm, no foul.

True. Lawyers want to protect their own income stream. But in looking at the details of the opinion, I can see where the dividing lines are drawn - and I actually think that there's pretty good guidance on where the boundaries should be.


Sikubali jukumu. Read all posts at your own risk.
LarryB13
(Arizona)

Posts:4099


01/03/2016 9:36 PM  
Arizona has grappled with similar issues and come to different conclusions. We have no such thing as a CAM here, but there has been an issue raised about who may prepare various kinds of legal documents. The State Bar licenses document preparers but there are many unlicensed people who routinely prepare documents. The Bar held that a license is not required to prepare documents if it is incidental to the primary service provided, that there is no separate charge for preparing the documents, and document preparation alone is not offered.

One of the good things from this Florida advisory opinion is that it will force boards to seek advice from real attorneys instead of going to CAM's, whose competence to give legal advice is questionable at best. Obtaining legal advice is a necessary and normal part of operating an association yet most boards will do anything to avoid doing so; the fact that an attorney charges for his time and advice causes to many boards to avoid obtaining legal advice altogether or obtaining it from unqualified sources.

GenoS
(Florida)

Posts:3673


01/03/2016 10:35 PM  
I should have looked at it a little closer. I found an article on a legal blog that quotes the court as saying, "... whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law," and I think the for compensation part is indeed a key part of the opinion.

I still think it's overreaching in some ways. The concept of this being a problem doesn't seem to even be on the radar of most states, and the idea of practicing law without a license as it pertains to rights and contracts etc. definitely seems like it would extend beyond HOA and condo association management. So while I think it's good to have a clear line which shouldn't be crossed, I also think a large part of the motivation behind it comes from a "Protect Our Gravy Train" attitude.
KevinK7
(Florida)

Posts:1343


01/04/2016 5:25 AM  
I can see this coming about from some property managers being overzealous and over-promising. In my neigh orhood everytime the hoa got a new PM they wold tell the board they could collect and enforce, even after being notified of various situations. One PM tried to enforce documents on my property. They were informed that we had no restrictions and to leave us alone. They basically said they knew the HOA's attorney were involved with us and they continued to try to enforce because they believed the set of restrictions were still in place and they could proceed. One could view their actios ( advising the board about collections,enforcement, etc." As practicing law.

I do think that that is a creative argument though.
ArtT5
(Illinois)

Posts:84


01/04/2016 6:54 AM  
It is of course true that the rule against unauthorized practice of law, while rationalized as being for the protection of consumers of legal services, helps protect the revenue of lawyers. The same can be said of rules against the unauthorized practice of medicine, and licensing in scores of other professions from plumbers to hair dressers. Illinois now requires a license to manage a homeowner association, and this law has helped create a shortage of managers that will no doubt lead to higher compensation for managers and higher costs for associations.

Offering comments on a message board is not practicing law, even when the remarks reflect legal research and interpretation. On the other hand, it should surprise no one that reviewing and revising an association's governing documents for compensation constitutes the practice of law; drafting of legal documents is one of the core duties of the profession.

All these restrictions pertain to doing something for compensation. You don't need a license to cut your kid's hair or fix a leaky faucet in your home, and you you can draft your own will if you think the cost savings justify the risk of getting it wrong. Some of the comments above involve decisions on the boundary of this issue. Are you offering legal services for compensation if they are part of a bundle of other services and are not separately compensated? In Illinois I believe the answer is yes, but perhaps you get a different answer in Arizona or some other states.

More problematic, it seems to me, is the issue of advising HOA boards on what they're permitted or required to do based on state laws and governing documents. This also is one of the core services provided by lawyers, yet it is a service commonly provided by, and expected of, association managers. Up to a point this is not a problem, but managers lack not just the licensing but the training to answer more intricate questions or resolve ambiguities. One would hope for a manager sophisticated enough to know when to say, "That's a question for your lawyer," but it's a lucky board that has such a manager.

Disclosure: I'm a lawyer who has studied Illinois HOA law but practice in a different area of law.
NpS
(Pennsylvania)

Posts:3987


01/04/2016 7:04 AM  
Posted By ArtT5 on 01/04/2016 6:54 AM
Are you offering legal services for compensation if they are part of a bundle of other services and are not separately compensated?

Great question.

Posted By ArtT5 on 01/04/2016 6:54 AM
More problematic, it seems to me, is the issue of advising HOA boards on what they're permitted or required to do based on state laws and governing documents. This also is one of the core services provided by lawyers, yet it is a service commonly provided by, and expected of, association managers. Up to a point this is not a problem, but managers lack not just the licensing but the training to answer more intricate questions or resolve ambiguities. One would hope for a manager sophisticated enough to know when to say, "That's a question for your lawyer," but it's a lucky board that has such a manager.

The problem I fear is that most MCs tune into the expectations of the Boards they serve. The relationship may be at stake if they don't step up or step down at the right moment.

Sikubali jukumu. Read all posts at your own risk.
RichardP13


Posts:0


01/04/2016 8:28 AM  
Posted By NpS on 01/04/2016 7:04 AM
Posted By ArtT5 on 01/04/2016 6:54 AM
Are you offering legal services for compensation if they are part of a bundle of other services and are not separately compensated?

Great question.

Posted By ArtT5 on 01/04/2016 6:54 AM
More problematic, it seems to me, is the issue of advising HOA boards on what they're permitted or required to do based on state laws and governing documents. This also is one of the core services provided by lawyers, yet it is a service commonly provided by, and expected of, association managers. Up to a point this is not a problem, but managers lack not just the licensing but the training to answer more intricate questions or resolve ambiguities. One would hope for a manager sophisticated enough to know when to say, "That's a question for your lawyer," but it's a lucky board that has such a manager.

The problem I fear is that most MCs tune into the expectations of the Boards they serve. The relationship may be at stake if they don't step up or step down at the right moment.



And the association's attorney doesn't, PLEASE!
KevinK7
(Florida)

Posts:1343


01/04/2016 9:03 AM  
Posted By NpS on 01/04/2016 7:04 AM
Posted By ArtT5 on 01/04/2016 6:54 AM
Are you offering legal services for compensation if they are part of a bundle of other services and are not separately compensated?

Great question.

Posted By ArtT5 on 01/04/2016 6:54 AM
More problematic, it seems to me, is the issue of advising HOA boards on what they're permitted or required to do based on state laws and governing documents. This also is one of the core services provided by lawyers, yet it is a service commonly provided by, and expected of, association managers. Up to a point this is not a problem, but managers lack not just the licensing but the training to answer more intricate questions or resolve ambiguities. One would hope for a manager sophisticated enough to know when to say, "That's a question for your lawyer," but it's a lucky board that has such a manager.

The problem I fear is that most MCs tune into the expectations of the Boards they serve. The relationship may be at stake if they don't step up or step down at the right moment.



I can see that. My HOA went shopping for an attorney 15 years ago to do a mandatory conversion. Knowing they couldn't convert without 100% they looked until they found an attorney who said he could do what they want, that it is a "gray area" of the law and his method was safe just so long as nobody challenges it.

Fast forward to the last few years. I challenged it and they have burned through attorneys and association managers because the board wanted collections and enforcement regardless of the law and the lawyers and managers complied or even promised results.

Now the board is on their 4th property manager in 2 years and third lawfirm in 7.
Their stated reason for the change - they weren't doing what they wanted, which was collecting fees and assessments and pursuing legal action against some homeowners. The number of defiant property owners has grown since news has spread that the restrictions expired which has pushed the board to pressure their management and lawyers.
NpS
(Pennsylvania)

Posts:3987


01/04/2016 10:45 AM  
Posted By RichardP13 on 01/04/2016 8:28 AM
Posted By NpS on 01/04/2016 7:04 AM
Posted By ArtT5 on 01/04/2016 6:54 AM
Are you offering legal services for compensation if they are part of a bundle of other services and are not separately compensated?

Great question.

Posted By ArtT5 on 01/04/2016 6:54 AM
More problematic, it seems to me, is the issue of advising HOA boards on what they're permitted or required to do based on state laws and governing documents. This also is one of the core services provided by lawyers, yet it is a service commonly provided by, and expected of, association managers. Up to a point this is not a problem, but managers lack not just the licensing but the training to answer more intricate questions or resolve ambiguities. One would hope for a manager sophisticated enough to know when to say, "That's a question for your lawyer," but it's a lucky board that has such a manager.

The problem I fear is that most MCs tune into the expectations of the Boards they serve. The relationship may be at stake if they don't step up or step down at the right moment.


And the association's attorney doesn't, PLEASE!


Think your might be getting defensive again Richard. This thread is about MCs that could get caught in the trap of "practicing law" as defined by a FL Supreme Court opinion.

Sikubali jukumu. Read all posts at your own risk.
KerryL1
(California)

Posts:7047


01/04/2016 10:49 AM  
With others, it's true that virtually all occupations try to "professionalize" be requiring more & more credentials, more months or years of schooling.

Occupations & professions also try to protect their status, respect, pay, by trying to keep related occupations away from their areas of expertise Or by attempting to encroach on others' areas.

I recall years ago in CA, the legal profession tried mightily to pass legislation that would give them a monopoly on writing contracts. Big fight between realtor lobbies and lawyer lobbies. Relators were able to keep that area of expertise. But the same happens in most occs & professions.

Our HOA's contract with our MC states that the PM is not responsible for knowing CA HOA laws, but the Board always has counted on the PM for exactly that. We definitely will hire our HOA GC to rewrite our CC&Rs, but our PM will offer sound advice based on her 10 years in the business at, now, 3 high rise HOAs, and so will a couple of us directors.

No certification is required in CA to manage HOAs, but applicants for PM positions must reveal their status. It's interesting that given their huge responsibilites -- in many cases-- this is one occupation that has so few requirements, yet opportunities for very large a salaries. Two of our former Asst. Mgrs. had no college experience and were under 25 when they, after 3-4 years work experience apiece, were promoted by our MC to their "own" buildings--smaller midrise HOAs in our urban setting.

So far as I know, they're both doing well. Meantime, we've had a couple of security officers who've moved on to Asst. Mgr. slots in other HOAs. So threes' actually a very nice career ladder in property mgt. of this kind in CA.
GenoS
(Florida)

Posts:3673


01/04/2016 1:25 PM  
Despite the stated attempt of the state bar association to get some clarification on the issue, it's still very confusing and controversial. For instance, this FL law firm page UPL Pitfalls and Dangers for Association Board Members clearly implies there are things even board members could be found guilty of. Either that or it's a subtle advertisement cautioning board members to be fearful and always pay a lawyer before you make any decision.

It's UPL to read one's bylaws and "interpret" what a quorum is, or the number of votes required to pass an amendment? Forcing a lawyer to be involved in the filing of liens, OK, I can see that. Paying a lawyer to determine when we have to send out meeting notices and to approve the wording of the notices because doing it ourselves amounts to UPL? That's ridiculous.

The article linked above is from last year, I think, and this next one is from this year. Ruling on Attorneys is Bad News for Condo Associations. That article makes some good points including someone who says the opinion is a solution in search of a problem, and another who says she's seen board members playing lawyer much more than property managers. It also gives a list of things only lawyers are allowed to do, including:

"address questions asking for the application of a statute or rule"

... which is something I'd really love to be able to get my board to do with regards to our reserves budget, i.e. ask a lawyer. Something not addressed in all of this, however, is how to convince directors there's even a problem or a question needing an answer when they're already committed to their plan of action, facts be damned.
JohnC46
(South Carolina)

Posts:9314


01/04/2016 1:29 PM  
Geno

Those links are to "scare you advertisements" by law firms. I would expect no less form them.
GenoS
(Florida)

Posts:3673


01/04/2016 1:48 PM  
I figured as much, JohnC46. Practicing law WITH a license should be outlawed for some of the more shady types.
KerryL1
(California)

Posts:7047


01/04/2016 2:08 PM  
NpS wrote:
"IMO, the reason that CA, TX, and FL are the most regulated HOA states is that they have the most lawsuits. More lawsuits, more regulation. More regulation, more lawsuits."

Could it also be the case that sheer numbers of HOAs mean the likelihood of lawsuits is greater? from 2012:

# of HOAs % of All

FL 46,000 14.2%
CA 42,5 13.1
TX 18,4 5.7

SC & PA 6,400 2%

So maybe causality often looks like this?

# of HOAs ---> more likelihood of abuses -----> more regulations to protect homeowners?

Btw, the average number of dwellings in CA HOAs is 103.

See: davis-stirling.com, CIDs (Sorry i lost the complete citation it was from a Zogby survey)
GenoS
(Florida)

Posts:3673


01/04/2016 2:37 PM  
The elephant in the room is that while FL may have an extensive state statute (HOA Law) on the books it may as well not exist given the lack of enforcement.
KerryL1
(California)

Posts:7047


01/04/2016 5:56 PM  
Heres' the complete reference to my citation above.

http://www.davis-stirling.com/Portals/1/docs/CAI%20Foundation%202012%20Statistical%20Brief.pdf
LarryB13
(Arizona)

Posts:4099


01/04/2016 8:09 PM  
Posted By GenoS on 01/04/2016 1:25 PM
For instance, this FL law firm page UPL Pitfalls and Dangers for Association Board Members clearly implies there are things even board members could be found guilty of. Either that or it's a subtle advertisement cautioning board members to be fearful and always pay a lawyer before you make any decision.


I read it. I saw no reference to any authority to substantiate his claims. This seems to be nothing more than a scare tactic to hire a lawyer (the author, of course) before doing those things that boards routinely do.
MelissaP1
(Alabama)

Posts:9134


01/04/2016 9:22 PM  
Ironically, there are actual forms available for some HOA business. They are available at some of the Big Office stores. They are in the same areas as "Lease agreements". Basically, you can draft your own rental agreements and other minor agreements. They come with 2 options. 1 just with the paperwork. The other with a CD rom and paperwork. It is under 20 dollars for either.

The CD and the documents have the options for EACH state separately. That way if you are in Alabama, it will guide you on how to do the paperwork for that state. Basically, giving you a general guide/paperwork you customize.

I have seen some of these for Articles of Incorporation. There may be others in the HOA realm available upon further research. However, keep in mind this is NOT practicing law without a lawyer. It's more like doing your taxes without an accountant. The lawyer part if required, would be in the actual FILING at the COURT level.

There are reasons I never post references to laws in my posts like others. It's because I do NOT represent myself as a lawyer nor as one who can fully interop the law. Quoting legal statements may lend people to believe something that I am not qualified to present. So I don't do it but give my "layman's" terms as best to my knowledge.

Former HOA President
LarryB13
(Arizona)

Posts:4099


01/05/2016 12:31 AM  
Posted By MelissaP1 on 01/04/2016 9:22 PM
Ironically, there are actual forms available for some HOA business. They are available at some of the Big Office stores. They are in the same areas as "Lease agreements". Basically, you can draft your own rental agreements and other minor agreements. They come with 2 options. 1 just with the paperwork. The other with a CD rom and paperwork. It is under 20 dollars for either.

I have seen some of these for Articles of Incorporation.


Now that you mention it, the Arizona Corporation Commission supplies free forms for incorporating. The Clerk of the Superior Court provides forms to initiate probate proceedings, divorces, and other legal matters. I have yet to see a serious accusation that either of these bodies are practicing law without a license.


NpS
(Pennsylvania)

Posts:3987


01/05/2016 6:35 AM  
Posted By LarryB13 on 01/05/2016 12:31 AM
Posted By MelissaP1 on 01/04/2016 9:22 PM
Ironically, there are actual forms available for some HOA business. They are available at some of the Big Office stores. They are in the same areas as "Lease agreements". Basically, you can draft your own rental agreements and other minor agreements. They come with 2 options. 1 just with the paperwork. The other with a CD rom and paperwork. It is under 20 dollars for either.

I have seen some of these for Articles of Incorporation.


Now that you mention it, the Arizona Corporation Commission supplies free forms for incorporating. The Clerk of the Superior Court provides forms to initiate probate proceedings, divorces, and other legal matters. I have yet to see a serious accusation that either of these bodies are practicing law without a license.


1. Selling or providing standard forms is not the practice of law. Filling out the forms may be.

2. Filling out the forms yourself is not the practice of law.

3. As I read the FL opinion, an MC who filled out and filed Articles of Incorporation (not sure why they would) would not be practicing law. The opinion makes a distinction between things that are "ministerial" in nature (like Articles of Incorporation) and things that involve decisions about legal rights (like CC&Rs).

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3673


01/05/2016 1:01 PM  
But what's "ministerial" and what's not? That seems to be the question that they wanted addressed in detail. In other words, you need a lawyer to tell you when you need a lawyer. And they both get paid, of course.
NpS
(Pennsylvania)

Posts:3987


01/05/2016 2:11 PM  
Posted By GenoS on 01/05/2016 1:01 PM
But what's "ministerial" and what's not? That seems to be the question that they wanted addressed in detail. In other words, you need a lawyer to tell you when you need a lawyer. And they both get paid, of course.


The 1996 FL SC opinion addressed the following activities:
A. drafting of a claim of lien and satisfaction of claim of lien;
B. preparing a notice of commencement;
C. determining the timing, method, and form of giving notices of meetings;
D. determining the votes necessary for certain actions by community associations;
E. addressing questions asking for the application of a statute or rule; and
F. advising community associations whether a course of action is authorized by statute or rule.
The 2012 FL SC opinion reaffirmed the 1996 opinion and also addressed the following activities:
1. Preparation of a Certificate of assessments due once the delinquent account is turned over to the association’s lawyer;
2. Preparation of a Certificate of assessments due once a foreclosure against the unit has commenced;
3. Preparation of Certificate of assessments due once a member disputes in writing to the association the amount alleged as owed;
4. Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members;
5. Determination of number of days to be provided for statutory notice;
6. Modification of limited proxy forms promulgated by the State;
7. Preparation of documents concerning the right of the association to approve new prospective owners;
8. Determination of affirmative votes needed to pass a proposition or amendment to recorded documents;
9. Determination of owners’ votes needed to establish a quorum;
10. Drafting of pre-arbitration demand letters required by 718.1255, Fla. Stat.;
11. Preparation of construction lien documents (e.g. notice of commencement, and lien waivers, etc.);
12. Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc.;
13. Identifying, through review of title instruments, the owners to receive pre-lien letters; and
14. Any activity that requires statutory or case law analysis to reach a legal conclusion.

And yes you may still need a lawyer to sort things out.

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3673


01/05/2016 5:47 PM  
Posted By NpS on 01/05/2016 2:11 PM


6. Modification of limited proxy forms promulgated by the State;


This one is rich because the only limited proxy form suggested and promulgated by the state of Florida is for condominiums only. I did extensive searching for the HOA version last year; I even made a couple of phone calls to the state and they were unable to help. In fact, they offered no useful information at all.

I don't need a lawyer to interpret for me a thing which does not exist.

This is just one example of why this advisory opinion sought by the state bar association stinks to high heaven. They're not interested in doing the right thing. They're interested in keeping CAMs off of their gravy train.

What kind of court issues "advisory" opinions anyway? Isn't a case required for the opinion of a court to mean something? Wikipedia notes that . Despite what I feel are sound opinions against allowing a court to do so, the article also notes that some states permit. Not that Wikipedia is always right but it notes that the supreme court of Florida is allowed to issue advisory opinions to the governor or the legislature. But the state bar association???? Seriously? I mean it's not like they would have a vested interest in the opinion or anything, right? And certainly none of the state supreme court justices were ever members themselves of said bar association right? Backwater corruption for a backwater state IMO. At least in New York they at least try to make it look legitimate.
ArtT5
(Illinois)

Posts:84


01/05/2016 6:11 PM  
The court's authority to issue an advisory opinion may be different when the opinion pertains to regulation of the legal profession.
LarryB13
(Arizona)

Posts:4099


01/05/2016 6:27 PM  
Many states have a State Bar and a bar association. The State Bar is usually an agency of state government and most seem to be the body that licenses lawyers and regulates the practice of law. A bar association is a non-governmental agency to promote the interests of lawyers. Because of the similar names, it is easy to get them confused but their purposes are very much different.



NpS
(Pennsylvania)

Posts:3987


01/05/2016 6:27 PM  
Posted By GenoS on 01/05/2016 5:47 PM
Posted By NpS on 01/05/2016 2:11 PM


6. Modification of limited proxy forms promulgated by the State;


This one is rich because the only limited proxy form suggested and promulgated by the state of Florida is for condominiums only. I did extensive searching for the HOA version last year; I even made a couple of phone calls to the state and they were unable to help. In fact, they offered no useful information at all.

I don't need a lawyer to interpret for me a thing which does not exist.

This is just one example of why this advisory opinion sought by the state bar association stinks to high heaven. They're not interested in doing the right thing. They're interested in keeping CAMs off of their gravy train.

What kind of court issues "advisory" opinions anyway? Isn't a case required for the opinion of a court to mean something? Wikipedia notes that . Despite what I feel are sound opinions against allowing a court to do so, the article also notes that some states permit. Not that Wikipedia is always right but it notes that the supreme court of Florida is allowed to issue advisory opinions to the governor or the legislature. But the state bar association???? Seriously? I mean it's not like they would have a vested interest in the opinion or anything, right? And certainly none of the state supreme court justices were ever members themselves of said bar association right? Backwater corruption for a backwater state IMO. At least in New York they at least try to make it look legitimate.


FL has a committee that oversees and monitors complaints about the unlicensed practice of law. These questions were put to the committee and the committee requested an opinion from the FL Supreme Court. In it's answer to question 6, the Court referenced § 718.112(f) several times. It didn't refer to 720 at all. So I don't think that there was any confusion about HOAs (720) vs Condos (718).

I'm not surprised that the state didn't offer useful information when you called. Non-lawyer employees of the state are trained not to say anything that could be considered a legal opinion.

The FL Supreme Court is a state court, not a federal court. So a federal restriction on federal courts doesn't apply. Each state court system has its own set of rules.

The FL Supreme Court has ultimate authority over all members of the FL bar. The FL Supreme Court also has the authority to set and change rules of civil and criminal procedure throughout your state. It's totally appropriate for them to give an advisory opinion on what constitutes the practice of law in FL.

The FL Supreme Court has a vested interest in controlling the flow of court cases through the courts. And to that end, I think they have drawn some lines - some clear, others fuzzy. The fuzzy ones may not be settled until an actual case is decided. But that's the way it goes.

That's not to say that a State Supreme court can't be corrupt. My state went through a major upheaval a few years back. But I don't see that kind of stuff going on here.

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3673


01/05/2016 10:50 PM  
Posted By NpS on 01/05/2016 6:27 PM
I'm not surprised that the state didn't offer useful information when you called. Non-lawyer employees of the state are trained not to say anything that could be considered a legal opinion.




Thanks, NpS, I kind of understand all that. [Insert lawyer joke here]

I don't think "Can you please point me in the direction of the state's recommended HOA proxy form?" was asking for a legal opinion. The impression I got was that they were utterly clueless, not that they were trained to answer carefully. I thought about hiring a lawyer to ask the question for me but soon discovered all by my lonesome that there is no such form for FS 720 Homeowners Associations. Would informing me of that have been legal advice on their part? (that's a rhetorical question)

Corruption in this situation is too strong a word. It's more like low-level everyday sleaze than outright criminal behavior. At the end of the day it's all about the billable hours DON’T BOTHER GETTING YOUR CAM LICENSE, GET YOUR LAW DEGREE!
NpS
(Pennsylvania)

Posts:3987


01/06/2016 4:47 AM  
Posted By GenoS on 01/05/2016 10:50 PM
I don't think "Can you please point me in the direction of the state's recommended HOA proxy form?" was asking for a legal opinion.

Really frustrating I'm sure. In my county courthouse, if you asked a question like that, you would be directed to the law library. The law librarian is always pissed that they send people to her, and she doesn't give answers either. She'll help you find a book - if you know what book you're looking for. But that's about as far as she'll go. "Loose lips sink ships."

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:3673


01/06/2016 1:48 PM  
Hahaha! So true. And I have had that experience at a law library myself many years ago.
JohnL26
(Florida)

Posts:89


01/11/2016 8:27 AM  
This link may be of interest http://www.myfloridalicense.com/dbpr/pro/cam/. Apparently Unlicensed Practice of Law is "investigated, and if necessary, prosecuted, by the Florida Bar, and carries potential criminal penalties". I'm not sure how likely that is when it comes to advice/opinions given on a forum for no payment.

Apologies if it this link has already been posted - I didn't read the full thread.

I personally think it is best to make it clear in any opinion given that it does not constitute advice and that a lawyer should always be consulted before acting.

I think it is best if Directors always take advice.

People always quote the Business Judgement Rule as protection for business decisions taken by HOA Directors but after researching that I found a thread on LinkedIn where lawyers discussed this among themselves and there was certainly opinion that experts needed to be consulted to benefit from this protection. Not just lawyers but experts in general, with written advice obtained.

Then there's the issue of Directors & Officers Liability Insurance which I did see mentioned above.

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