Pending before the Florida Supreme Court is the Florida Bar’s Proposed Advisory Opinion In Re: Activities of Community Association Managers (SC13-889) clarifying whether certain functions performed by community association managers (CAMs) constitute the unauthorized practice of law. The CAM functions at issue include drafting lien documents, preparing certificates of assessment for delinquent accounts, and modifying proxy forms, among others. The Bar’s proposal comes seventeen years after a Florida Supreme Court Advisory Opinion addressing the propriety of certain CAM activities. Fla. Bar Re: Advisory Opinion—Activities of Comt. Ass’n Managers, 681 So. 2d 1119 (Fla. 1996).
In its Proposed Advisory Opinion, the Florida Bar points to factual circumstances surrounding certain CAM functions that demonstrate a need for clarification of the 1996 Advisory Opinion. The Bar suggests that many specific situations were not considered by the Court then, and that the 1996 Advisory Opinion has become outdated in many respects by changed circumstances. For example, the 1996 Opinion lists “preparation of a certificate of assessment” as a purely ministerial function, which would not be deemed unauthorized practice of law. However, community associations have been encountering “special, complex circumstances,” such as bankruptcy and foreclosure, much more frequently in recent years. In these cases, legal analysis and accuracy can be critical to effectively resolving claims. Additionally, the Court stated in the 1996 Advisory Opinion that the act of modifying documents does not constitute unauthorized practice of law, with an exception for “more complicated modifications.” However, the Bar argues that the Court provided no guidance for determining what constitutes a complicated modification. Thus, according to the Bar, providing clarity to the 1996 Advisory Opinion is both necessary and proper.
The Proposed Advisory Opinion is challenged by community association managers who claim that the Bar’s Opinion is a needless and impermissible clarification of the existing Advisory Opinion.
The challenging parties argue that the Florida Supreme Court’s 1996 Advisory Opinion established a clear and effective test for determining whether a specific CAM function constitutes the unauthorized practice of law. In the Advisory Opinion, the Court delineated three categories of CAM activities— those that are “purely ministerial” and do not constitute the practice of law, those that clearly constitute the practice of law, and those that occupy a gray area. The Court found that “gray area” functions are subject to a fact-specific inquiry incorporating the test from State ex rel. Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962). That decision defined the practice of law as representing another in court, giving legal advice as to rights and obligations under the law, and preparing instruments that affect legal rights. The challenging parties claim that CAMs have operated under this framework for 17 years without a single complaint regarding the unauthorized practice of law and that the Court should defer to the regulatory body’s opinion that further clarification would cause increased confusion.
Furthermore, the challenging parties argue that the Proposed Advisory Opinion is an unfair restriction on competition. They claim that any determination involving a nonlawyer’s ability to perform alleged legal tasks must be reached by weighing the potential harm resulting from the nonlawyer’s involvement against the benefits resulting from increased competition. The parties point to the absence of UPL complaints against CAMs to suggest that the harm versus benefit inquiry favors CAMs’ continued involvement in these functions.
Finally, the challenging parties argue that clarification of the 1996 Advisory Opinion is procedurally barred. They claim that such revision would be “contrary to the finality of judgment and procedural rules limiting time to request clarification.”