Wednesday, February 23, 2011

Florida's Judicial Oligarchy and its Heinous Tools: UPL and the Bar

UPL  (Unauthorized Practice of Law) destroys the lives of many, both actively and passively.

Actively, it makes anyone who practices law without authorization into a felon:

Florida Statute 454.23 Penalties.
Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.s. 21, ch. 10175, 1925; CGL 8133; s. 384, ch. 71-136; s. 1, ch. 74-128; s. 184, ch. 97-103; s. 1, ch. 2004-287.

I know, from looking at this ridiculous statute you want to know the statutes that define the practice of law, establish licensing for it, and prohibit practicing law without the license.

Sorry, no such statutes exist in Florida.  Citizens have to scrounge through Supreme Court rulings to find their definitions of activities that constitute practice of law, and scrounge further to discover what “authorized” and “licensed” means.  In Florida, the Constitution gives the Supremes this authorityin Article V:

SECTION 15. Attorneys; admission and discipline.—The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.
History.—S.J.R. 52-D, 1971; adopted 1972.

From this you see the Supremes don’t discipline persons NOT admitted to the inscrutable "practice of law."   Thus, the State Attorneys harvest complaints from attorneys and prosecute non-attorneys who compete against them. Attorneys thus hope UPL prosecution will win a felony conviction and a 5 year jail term for the competitor.

So you see, only Florida Common Law (court rulings) has made it illegal to do what the Supremes whimsically determine constitutes practice of law.  The Florida Legislature has negleced to define practice of law.  That allowed State Attorneys (henchmen for the Florida Bar) to run roughshod over citizens who try to help one another with legal problems.  The government has thereby created a legal services monopoly.

Passively, UPL scaes people away from helping one another with legal problems.  It drives people to attorneys.  Unfortunately, the Florida Bar does not tell an inquiring consumer whether a referral attorney has good experience and competence, or has routinely cheated, overbilled, and failed his clients.  It does not tell consumers his win/loss ratio in court or whether his contracts have caused clients to lose fortunes.  And of course the Bar rules prohibit revealing the sins of other attorneys.  Thus the consumer might as well roll the dice when selecting an attorney.  Then, when attorneys lose cases they should win, the Bar pays no attention at all.

What will YOU do to repair the UPL outrage?

Jerry O’neil Lives in Montana.  He sponsored a bill to tone down the state’s tendency to attack non-lawyers for practicing law without authorization.  He sent Charles Lincoln this request, which Charles forwarded to me:

From: Jerry O'Neil []
Sent: Wednesday, January 19, 2011 2:46 PM
To: Jerry O'Neil
Subject: Practice of Law, bill on

Here is a link to LC1706, a bill I am going to present in the Montana Legislature to make it more clear what is the practice of law and what is permitted by the public and by licensed attorneys. I am open to criticism.

Jerry O'Neil

The link Jerry sent does not work.  I found the right link here:

HB 371
Primary Sponsor
(H) Tabled in Committee
Revise statutes on practice of law

2011 Montana Legislature



     Section 1.  Section 37-61-201, MCA, is amended to read:
     "37-61-201.  Who considered to be practicing law. (1) Any Except as provided in subsections (2) through (4), any person who holds out to the public or advertises as an attorney or who appears in any court of record or before a judicial body, referee, commissioner, or other officer appointed to determine any question of law or fact by a court or who engages in the business and duties and performs acts, matters, and things that are usually done or performed by an attorney at law in the practice of that profession for the purposes of parts 1 through 3 of this chapter is authorized by the Montana supreme court to practice before the courts of this state, in the course of that person's avocation, is considered to be practicing law.
     (2) An individual is not considered to be practicing law when acting:
     (a) on the individual's own behalf; or
     (b) in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.
     (3) An individual is not considered to be practicing law when, with the court's authorization, the individual acts:
     (a) on behalf of another party to whom the person is related by a second degree of consanguinity or affinity;
     (b) as a personal representative; or
     (c) as a guardian ad litem.
     (4) An individual is not considered to be practicing law when, with the permission of an administrative agency or tribunal, the individual acts as a lay representative."

     Section 2.  Section 37-61-210, MCA, is amended to read:
     "37-61-210.  Penalty for practicing without license. If Except as provided in 37-61-201, if any person practices law in any court, except a justice's court or a city court, without having received a license as attorney, the person is guilty of a contempt of court misdemeanor."

     Section 3.  Section 37-61-215, MCA, is amended to read:
     "37-61-215.  Allowance of attorney fees to unlicensed persons forbidden -- exception -- authorized paralegal fees. (1) It Except as provided in 30-14-133, it is unlawful for any court within this state to allow attorney fees in any action or proceeding before the court in which attorney fees are allowed by law to either party to an action or proceeding when the party is represented by anyone other than a duly admitted or licensed attorney at law.
     (2)  This section does not prevent the award of paralegal fees as a component of attorney fees as provided in 25-10-304."
- END -

Okay, pretty nice. It represents an improvement. I wrote these suggestions.

Jerry, your changes seem helpful, but fall WAY short of what society needs.  Practice of law does not include ANY behavior unless the alleged practitioner holds himself out as a licensed attorney.  A non attorney can do anything an attorney does, including representing people in court EXCEPT for one thing:  doing it AS A LICENSED ATTORNEY.  A licensed gives people only small advantages over non-attorneys:

  • ·         Knowledge of the legal landscape
  • ·         Falling subject to the discipline of the bar
  • ·         General knowle retained from law school (they forget much of that material)
  • ·         Fast access to legal research tools (anybody can by this with the money)
  • ·         IQ above 110 gives them better than average cognitive ability

The huge disadvantage they offer:

  • ·         Incompetence in areas where they don’t specialize
  • ·         Tacit support of the Bar’s legal services monopoly made possible by the UPL penalty statute
  • ·         Tendency to price-gouge through the Bar’s legal services monopoly
  • ·         Tendency to take too many cases at once and therefore to shirk some clients
  • ·         As members of the bar, they belong to the Supreme Court and fall subject to their discipline and therefore have split loyalty and cannot be trusted
Many non-attorneys have nearly all the advantages and none of the disadvantages, and because of their disconnection from government can do a better lawyering job for the client than an attorney could or would.  If allowed to represent people, draw up agreements and contracts for them, file court documents for them, give them legal advice (a topic soreley missing from your bill) without harassment from the bar, they could and often would hire attorneys for assistance of counsel.

The Supreme Court should not have the prerogative to define “practice of law,” and the UPL statute should not apply to non-attorneys.  We already have common law tort actions that give people relief and remedy for charlatanry in the realm of legal advice,  And otherwise, a person gets what he pays for when he knowingly chooses a non-attorney for help.  So long as the counselor / representative does not misrepresent his licensure status, the law should leave him alone.

Right now the UPL statute seems to make advising your children about the meaning and application of the Constitution into a crime.  THAT is civilizationally insane.  You might remember the case of Nancy Grant who supplied jailbirds the motion for emergency release for violation of speedy trial rights (you know, the scam of public defenders continuing a case and leaving the suspect to rot in jail for years without a single hearing).  The Florida 12th  Kangaroo Circuit convicted her of 19 counts of UPL.  See the story here  This kind of insanity has to stop.

I hope you will send similar comments to the legislators in your state.  Forward this message to them.  They need to know that UPL hurts the people, it does not protect them.  Incompetent, crooked attorneys abuse, cheat, and betray clients every day in every state, all over the USA.  Why?  Because UPL operates to create a legal services monopoly.  So, obviously a license to practice law, the enormous range of activities included in the meaning of “practice of law,” ambiguity about the meaning, and fear of getting convicted of UPL, all operate to chill freedom of speech.  It also encourages Americans to abandon one another to a crooked attorney rather than help them out.  It also stifles the study of law by the citizenry.

While you harangue your legislators, explain to them how the Bar constitutes a grave danger to mankind by encouraging the legal services monopoly and by creating a judicial oligarchy through integration with the Supreme Court.  The Florida Supremes integrated the Bar in 1949.

You see, the judiciary claims immunity for itself in judicial acts, and successfully extends it to ALL acts.  Only rarely does a judge feel the sting of prosecution for his real and rampant crimes.  Lawyers love that immunity, so they want to share in it by becoming judges (a profession open only to them) or belonging to the Supreme Court.  So, most state Supreme Courts integrated the bar with the Supreme Court as its “official arm.”

In a show of power, the Florida Supremes under Peggy Quince in September 2008, declared in the Sibley ruling that judges don’t have to obey the statute requiring them to swear a public employee oath that has radically different language than the public officer’s oath in the Constitution.  They "deemed" that by swearing the oath in the Constitution the judges had complied with the statute.

They did this two years after I raised holy hell with them for failing to have jurats on their oath forms, and not swearing the public employee oath in Florida Statute 876.05-10.  They did this a year after Chief Justice Fred Lewis chastened all the judges for that negligence and told them to go swear their 876.05 oaths anew, which all of them did.  THAT proved the Supremes deceitful in the 2008 Sibley ruling, a fact the  mainstream media totally ignored.  You can read my ebook on the oaths debacle at (Loyalty Oaths in Florida").

What UNMITIGATED GALL!  Actually, they did the same thing in the 1995 Times Publishing Company v. Ake ruling in which they declared that Chapter 119 of the Florida Statutes don’t apply to judicial records.  They used this ruling to deny the St. Pete Times access to judicial records.

They claim they have constitutional authority to do this under Article I Section 24:

SECTION 24. Access to public records and meetings.—
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
(c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch. Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and provisions governing the enforcement of this section, and shall relate to one subject.
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.
History.—Added, C.S. for C.S. for H.J.R.’s 1727, 863, 2035, 1992; adopted 1992; Am. S.J.R. 1284, 2002; adopted 2002.

Naturally, they claim protection under item d above.  But by sneaking the provision into the constitution, they denied people protection of the section.

How could it happen that the Florida Legislature would put such a betrayal of the people into Article I Section 24?  Simple.  A lot of their members have bar membership and licenses to practice law.  They worked against the people and for the Supremes because they fell subject to discipline of the Supremes, and to disbarment (on trumped up charges of course) if they didn’t play along.

Unfortunately for Florida, most Floridians ignore Article II Section 3, just as do the election folks in the State Department:

SECTION 3.Branches of government.The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Hmm.  Attorneys (all of them) belong to the judicial branch.  That means the attorneys in the Legislature (both staff attorneys the 35 legislators who belong to the bar) should not perform duties in the Legislature because they do so only in violation of the above doctrine of separation of powers.  You might recall that Charlie Crist, governor for 8 years, functioned as Attorney General for 8 years under Jeb Bush and had bar membership, so he did not belong in the governorship, did he?  Furthermore we should remember that the Florida Bar does support political agendas.  They foster those agendas through their members (all judges and attorneys), sneaking them under the putative security blanket of the electoral process.  Thus, both the Bar and its members function as an official arm of the Supreme Court, and that reality constitutes a grave danger to the welfare of Florida and its people.

Clearly, Florida suffers under the tyranny of a Judicial Oligarchy established by stealth over the years under color of law.  Clearly, the people of Florida must make the necessary changes to constitution and law to excise bar members from the Executive and Legislative branches.  The Legislature should

  • 1.      Excise the bar from government altogether,
  • 2.     Strip government employees of bar membership as a condition of employment, and
  • 3.      Hand licensure and regulation of the practice of law to the Executive Branch.

US Constitution Article IV Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Anyone with half a brain knows that a state government cannot function as a judicial oligarchy and a republic at the same time.  Florida's bar and Supreme Court have destroyed the Florida Republic and established a judicial oligarchy in control of the residue.  Its members work as elected and staff attorneys of the  Executive branch (attorney general, state attorneys) and the Legislature (through the bar member legislators), and of course the Judicial Branch.  They never fired a shot to pull off this bloodless coup, but deputy sheriff bailiffs in all the courts keep the oligarchy in place.

WOE unto Florida.

Feel free to distribute this far and wide.

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1 comment:

Legal Sunshine said...

Dear Bob Hurt,
Great blog, great article. I am a Florida legal document preparer representing the Florida Association of Legal Document Preparers, . We are up against the shenanigans of the Florida Bar everyday. Please visit us on our site, and read our new blogs, and .
Best Regards,
Ruth Tick