{"id":51302,"date":"2013-12-01T00:41:09","date_gmt":"2013-12-01T00:41:09","guid":{"rendered":"http:\/\/ceomcfl.com\/?p=51302"},"modified":"2020-09-02T13:58:15","modified_gmt":"2020-09-02T13:58:15","slug":"community-association-managers-take-upl-issue-to-the-legislature","status":"publish","type":"post","link":"https:\/\/ceomcfl.com\/community-association-managers-take-upl-issue-to-the-legislature\/","title":{"rendered":"Community association managers take UPL issue to the Legislature"},"content":{"rendered":"\n

Source: http:\/\/www.floridabar.org\/DIVCOM\/JN\/jnnews01.nsf\/8c9f13012b96736985256aa900624829\/eddcfd07<\/a><\/p>\n\n\n\n

By Mark D. Killian
Managing Editor<\/p>\n\n\n\n

A trade group representing community association managers, or CAMS, told the Legislature the process the Bar uses to issue unlicensed practice of law advisory opinions is flawed and that the Bar\u2019s Standing Committee on UPL is trying to carve out \u201ca captive marketplace\u201d for lawyers at the expense of another profession.<\/p>\n\n\n\n

The CAMS were reacting to a UPL Committee advisory opinion issued in May that examined the activities of community association managers to determine if some of the services should only be provided by lawyers. The opinion is now pending at the Supreme Court.
Mark Anderson, representing the Chief Executive Officers of Management Companies \u2014 which represents 18,000 CAMS \u2014 told the House Civil Justice Subcommittee in November that the Bar\u2019s UPL process has become less about the practice of law and more about the creation of it.<\/p>\n\n\n\n

\u201cWe believe there is something fundamentally wrong when, in the absence of any complaints or facts to the contrary, some lawyers who do not like another profession can simply exploit an unelected process intended to guide the public and the legal profession for something it was not intended \u2014 to forcibly create a captive marketplace for itself at the expense of another profession,\u201d Anderson said.<\/p>\n\n\n\n

Anderson said CAMS were provided only limited opportunity to comment while the advisory opinion was being drafted and that certain UPL issues should not be defined through the court at the request of the same profession that stands to benefit from how it is defined.
\u201cBad process makes bad public policy, and let\u2019s make no mistake about it, as we sit here today the Bar is creating public policy, because the impact of a so-called advisory opinion regarding UPL is far more substantive and sweeping than the word \u2018advisory\u2019 would imply
and extends well beyond the legal profession,\u201d Anderson said.<\/p>\n\n\n\n

Lori Holcomb, the Bar\u2019s director of client protection who oversees the Bar\u2019s UPL efforts, told the committee the CAMS had plenty of opportunity to be heard at a well-publicized public hearing on the matter and kept the process open after the hearing for others to submit written comments. Holcomb said the committee received some 250 to 350 pages of testimony \u2014 all made available on the Bar\u2019s website \u2014 before rendering its decision. Holcomb did note no new testimony was taken when the committee met in public to finalize its advisory opinion. She also said many briefs have been filed with the Supreme Court on the pending matter, many from CAMS.<\/p>\n\n\n\n

Rep. Ross Spano, R-Riverview, who brought the matter to the attention of the House committee, said: \u201cThe policy embraced by this petition will put more than 18,000 Floridians [CAMS] at risk of being put out of work at a critical time of recovery for Florida\u2019s economy by prohibiting them from continuing to provide their contracted services to associations.\u201d<\/p>\n\n\n\n

Holcomb, however, said the proposed opinion will not change any of the rulings made by the Supreme Court of Florida in The Florida Bar re: Advisory Opinion \u2013 Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996), the last time the court addressed the role of CAMS.<\/p>\n\n\n\n

\u201cWhat the CAMS have been operating under since 1996, we are not proposing that that changes,\u201d said Holcomb, adding that the UPL Committee worked to clarify the earlier opinion and also addressed some new law, including a recommendation that CAMS be permitted to write pre-arbitration letters.<\/p>\n\n\n\n

The Real Property, Probate and Trust Law Section sought confirmation from the UPL Committee that the activities found to be UPL in the 1996 opinion continue to be the unlicensed practice of law. Those activities include the drafting of a claim of lien and satisfaction of claim of lien; preparing a notice of commencement; determining the timing, method, and form of giving notices of meetings; determining the votes necessary for certain actions by community associations; addressing questions asking for the application of a statute or rule; and advising community associations whether a course of action is authorized by statute or rule.<\/p>\n\n\n\n

Since there is no statutorily defined definition of UPL, Rep. Kathleen Passidomo, R-Naples, asked what criteria the Bar uses to determine what constitutes UPL.<\/p>\n\n\n\n

Holcomb said it is defined by case law and court rule, and the 37-member UPL Committee \u2014 of which 18 members are nonlawyers \u2014 has more than 250 cases to draw from.
\u201cThe reason there is no definition . . . is because the court recognized in 1980 that due to the ever-changing business and social atmosphere, you could not have a one set definition of UPL,\u201d Holcomb said.<\/p>\n\n\n\n

In determining UPL, Holcomb said, the committee uses a three-prong test set forth by the Supreme Court of Florida:
* Does the conduct involve an individual\u2019s important legal rights?
* Does the person providing that activity require knowledge and skill of the law greater than that possessed by the average citizen?
* It is done by one for another?<\/p>\n\n\n\n

Rep. James Waldman, D-Coconut Creek, asked why Realtors are permitted to draft contracts while others cannot.<\/p>\n\n\n\n

Because the statute allows someone with a real estate license to bring together the buyer and seller, Holcomb answered, the court held they could draft the contact for sale.<\/p>\n\n\n\n

\u201cCan they draft another contract? No,\u201d Holcomb said.<\/p>\n\n\n\n

Rep. Bill Hagar, R-Boca Raton, said there is an \u201cinference in the air\u201d that the Bar is focusing on CAMS \u201cbecause they are an easy target versus, say, CPAs,\u201d who, he said, \u201coften articulate more or equivalent tax law than a tax attorney.\u201d<\/p>\n\n\n\n

Hagar said with 95,000 lawyers, some of whom are underemployed, the Bar\u2019s UPL work associated with CAMS \u201cseems anti-competitive.\u201d
Holcomb said the UPL Committee does not take \u201ceasy targets\u201d into consideration when preparing advisory opinions and noted it is often more lucrative for lawyers \u201cto clean up a mess\u201d than it is to have something prepared correctly the first time.<\/p>\n\n\n\n

\u201cWe look at where the law should be clarified or where there is public harm that needs to be protected,\u201d she said.<\/p>\n\n\n\n

As far as CPAs doing tax work, Holcomb said the UPL Committee has no authority since the federal government allows that activity.
\u201cIf there is a federal rule or regulation that says the activity is authorized then Florida cannot step in . . . and enjoin that activity as UPL,\u201d she said.<\/p>\n\n\n\n

Chair Larry Metz, R-Groveland, said he is concerned that there is no clear definition of what the unlicensed practice of law is and the Legislature should make it clear what CAMs can do.<\/p>\n\n\n\n

\u201cThat might help move this dialog forward if we assert substantive policy \u2014 in the role that we have to license and control community association managers \u2014 that might help alleviate, maybe, some of these issues,\u201d Metz said.<\/p>\n\n\n\n

Rep. Dana Young, R-Tampa, asked: \u201cWhy is this something that the Bar, which most of us pay our dues to and allegedly represent us, why are they taking time and spending money to deal with this [CAMs] issue? There is no question in my mind that this rule, if that\u2019s what we are calling it, that the Bar is trying to get passed is going to significantly increase costs to homeowners in our state at a time when they cannot afford it.\u201d<\/p>\n\n\n\n

\u201cI feel like it is the fox guarding the hen house,\u201d Young said. \u201cI feel like it is lawyers trying to drum up business. Why do I need a lawyer to tell me what a quorum is? Why do I need to hire a lawyer to fill out a form? This is just silly and it is embarrassing, and I would ask the Bar to please focus on things that matter and stop trying to drum up business at the cost to our homeowners.\u201d<\/p>\n\n\n\n

Anderson said what is happening to CAMS today \u201ccan and will happen to other professions tomorrow.\u201d<\/p>\n\n\n\n

\u201cIf lawyers want to provide the same service another profession is providing to the public, they can and should do what everyone else has to do \u2014 compete for it by doing it better and more cost effectively than anyone else,\u201d Anderson said.<\/p>\n","protected":false},"excerpt":{"rendered":"

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