PROCEDURES FOR ISSUANCE OF ADVISORY OPINIONS ON THE UNLICENSED PRACTICE OF LAW

(a) Definitions.

(1) Committee. The committee is the standing committee on UPL as constituted according to the directives contained in these rules.

(2) Petitioner. A petitioner is an individual or organization seeking guidance as to the applicability of the state’s prohibitions against the unlicensed practice of law.

(3) Public Notice. Public notice is publication in a newspaper of general circulation in the county in which the hearing will be held and in The Florida Bar News.

(4) Court. The court is the Supreme Court of Florida (or any other court in the state of Florida as the supreme court may designate).

(b) Requests for Advisory Opinions. A petitioner may request a formal advisory opinion concerning activity that may constitute the unlicensed practice of law by sending a question to The Florida Bar’s UPL Department at the bar’s headquarters address in Tallahassee. The question must be in writing, state all operative facts, and ask whether the activity constitutes the unlicensed practice of law. The request will be reviewed by UPL staff counsel. If the request complies with the requirements of this rule, the request will be placed on the agenda for the next scheduled meeting of the committee. At that meeting, the committee will determine whether to accept the request, which is within the discretion of the committee. If the committee accepts the request, a public hearing as provided elsewhere in this rule will be scheduled.

(c) Limitations on Advisory Opinions. No advisory opinion may be rendered with respect to any case or controversy pending in any court or tribunal in this jurisdiction or any matter currently the subject of an unlicensed practice of law or grievance investigation by The Florida Bar. However, the committee will hold a public hearing and issue a proposed formal advisory opinion under circumstances described by the court in Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), when the petitioner is a party to a lawsuit and that suit has been stayed or dismissed without prejudice. No informal advisory opinion will be issued except as provided elsewhere in these rules.

(d) Services of Voluntary Counsel. The committee may request and accept the voluntary services of a person licensed to practice in this state when the committee deems it advisable to receive written or oral advice regarding the question presented by the petitioner.

(e) Conflict of Interest. Committee members will not participate in any matter in which they have either a material pecuniary interest that would be affected by an advisory opinion or committee recommendation or any other conflict of interest that should prevent them from participating. However, no action of the committee will be invalid where full disclosure has been made and the committee has not decided that the member’s participation was improper.

(f) Notice, Appearance, and Service.

(1) At least 30 days in advance of the committee meeting at which a hearing is to be held with respect to a potential advisory opinion, the committee must give public notice of the date, time, and place of the hearing, provide a general description of the subject matter of the request and the bar website and address where a full copy of the question presented can be obtained, and invite written comments on the question. On the announced date the committee will hold a public hearing at which any person may present oral testimony and be represented by counsel. At the time of or prior to the hearing any person may file written testimony on the issue before the committee. Additional procedures not inconsistent with this rule may be adopted by the committee.

(2) After the hearing the committee will vote whether to issue either a written proposed advisory opinion, a letter that declines to issue an opinion, or an informal opinion as provided elsewhere in this rule. No other form of communication is deemed to be an advisory opinion.

(3) A proposed advisory opinion must be in writing and bear a date of issuance. The cover page of the advisory opinion will state that it is a proposed advisory opinion, is only an interpretation of the law and does not constitute final court action. The committee will arrange for the publication of notice of filing the proposed advisory opinion with a summary in The Florida Bar News within a reasonable time. Interested parties will be furnished a copy of the full opinion on request.

(g) Service and Judicial Review of Proposed Advisory Opinions.

(1) In the case of any proposed advisory opinion in which the standing committee concludes that the conduct in question is not the unlicensed practice of law, it will decide, by a vote of a majority of the committee members present, either to publish the advisory opinion as provided elsewhere in this rule as an informal advisory opinion, or to file a copy of the opinion with the court.

(2) In the case of any proposed advisory opinion in which the standing committee concludes that the conduct in question constitutes or would constitute the unlicensed practice of law, the committee must file a copy of the opinion and all materials considered by the committee in adopting the opinion with the clerk of the court. The proposed advisory opinion and the notice of the filing will be furnished to the petitioner.

(3) Within 30 days of the filing of the proposed advisory opinion, the petitioner and any other interested party may file a brief or memorandum in response to the proposed advisory opinion, copies of which must be served on the committee at the Florida Bar’s headquarters address in Tallahassee. The committee may file a responsive brief or memorandum within 20 days of service of the initial brief or memorandum. The petitioner, and other interested persons, may file a reply brief within 10 days of service of the responsive brief or memorandum. The court may permit reasonable extension of these time periods. Oral argument will be allowed at the court’s discretion. Filing, service, and oral argument will be governed by the Florida Rules of Appellate Procedure.

(4) The court will review all filings after which the court will approve, modify, or disapprove the proposed advisory opinion. The court’s opinion will have the force and effect of an order of the court and be published accordingly. There will be no further review of the opinion except as granted by the court in its discretion, on petition to the court. Amended: July 23, 1992, effective Jan. 1, 1993 (605 So.2d 252); Feb. 8, 2001 (795 So.2d 1); May 20, 2004 (SC03-705), (875 So.2d 448); January 26, 2012 (SC11-649), effective April 1, 2012; amended October 15, 2015, effective immediately (SC15-687), amended November 9, 2017, effective February 1, 2018 (SC16-1961).