Unlicensed Practice of Law and Community Association Managers
by Candice J. Gundel, Esq.
On May 14, 2015, the Florida Supreme Court issued its opinion in Re: Advisory Opinion—Activities of Community Association Managers. This long awaited order adopts and incorporates the 2013 Florida Bar Advisory Opinion on the unlicensed practice of law as it relates to the activities of community association managers. The new order makes only minor changes to the prior rules regarding the unlicensed practice of law. This newsletter is intenede to provide a brief summary.
The following activities, if performed by a community association manager, would constitute the unlicensed practice of law: 1) completing BPR Form 33-032 (frequently asked questions and answers sheet); 2) drafting a claim of lien, satisfaction of claim of lien, or notice of commencement form; 3) determining the time, method and form of giving notice of meetings; 4) determining the votes necessary for certain actions which would entail interpretation of statutes and rules; 5) answering a question about the application of law to a matter being considered or advising a community association that a course of action may not be authorized by law, rule, or the governing documents; 6) generally, any act which requires the interpretation of statutes, administrative rules, governing documents, or civil procedure.
The Court found that the following activities, when performed by a community association manager, do NOT constitute the unlicensed practice of law: 1) completion of Secretary of State forms; 2) drafting certificates of assessments; 3) drafting first and second notices of election; 4) drafting ballots; 5) drafting written notices of annual or board meetings; 6) drafting affidavits of mailing; 7) generally, any act which is purely ministerial and does not require the interpretation of statutes, administrative rules, governing documents, or civil procedure.
In adopting the 2013 Florida Advisory Opinion, the Court noted that some acts may constitute the unlicensed practice of law, depending on the specific factual circumstances. These acts include: 1) modification of limited proxy forms promulgated by the State; 2) preparation of documents concerning the right of the association to approve new prospective owners; 3) determination of affirmative votes needed to pass a proposition or amendment to record documents; 4) determination of owners’ votes needed to establish a quorum; 5) identifying through review of title instruments, the owners to receive pre-lien notices.
The Court emphasized that a community association manager does NOT engage in the unlicensed practice of law when performing a ministerial act which does not require the interpretation of statutes, administrative rules, governing documents, or civil procedure. As always, when in doubt, you are strongly urged to seek legal counsel to advise on the appropriate course of action.