          Supreme Court of Florida
                                   ____________

                                   No. SC13-889
                                   ____________


      THE FLORIDA BAR RE: ADVISORY OPINION—ACTIVITIES
           OF COMMUNITY ASSOCIATION MANAGERS.

                                  [May 14, 2015]

PER CURIAM.

      Pursuant to Rule Regulating the Florida Bar 10-9.1, The Florida Bar Real

Property, Probate, and Trust Law Section petitioned the Standing Committee on

Unlicensed Practice of Law (Standing Committee) for an advisory opinion

regarding certain activities when performed by non-lawyer community association

managers. Petitioner asked the Standing Committee to examine a 1996 advisory

opinion from this Court, Florida Bar re Advisory Opinion–Activities of

Community Association Managers, 681 So. 2d 1119 (Fla. 1996), and advise

whether the activities in the opinion that were found to be the unlicensed practice

of law continue to constitute the unlicensed practice of law. Further, Petitioner

asked whether fourteen additional activities, when performed by non-lawyer

community association managers, constitute the unlicensed practice of law. As
required under rule 10-9.1(f), the Standing Committee provided notice of and held

a public hearing to address these issues where it considered written and live

testimony. The Standing Committee subsequently filed a proposed advisory

opinion in this Court. We have jurisdiction to review the proposed advisory

opinion pursuant to rule 10-9.1(g) of the Rules Regulating the Florida Bar and

article V, section 15, of the Florida Constitution.

      After the proposed advisory opinion was filed, interested parties were

permitted to file briefs in support of or in opposition to the proposed advisory

opinion. After considering the proposed opinion and the briefs of the interested

parties, the Court approves the proposed advisory opinion as set forth in the

appendix to this opinion.1

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Original Proceedings – The Florida Bar




      1. As provided in Rule Regulating the Florida Bar 10-9.1(g)(4), the advisory
opinion shall have the force and effect of an order of this Court and shall be
published accordingly.


                                           2
C.C. Abbott, Chair, Standing Committee on the Unlicensed Practice of Law,
Tallahassee, Florida; Nancy Munjiovi Blount, Past Chair, Standing Committee on
the Unlicensed Practice of Law, Tallahassee, Florida; John F. Harkness, Jr.,
Executive Director, Lori S. Holcomb, Director, Client Protection, and Jeffrey Todd
Picker, The Florida Bar, Tallahassee, Florida,

      On behalf of the Standing Committee on the Unlicensed Practice of Law

Michael Allen Dribin, Chair, Real Property, Probate and Trust Law Section of The
Florida Bar, Harper Meyer Perez Hagan O’Connor Albert & Dribin, LLP, Miami,
Florida; Margaret Ann Rolando, Past Chair, Real Property, Probate and Trust Law
Section of The Florida Bar, Shutts & Bowen, LLP, Miami, Florida; William F.
Belcher, Saint Petersburg, Florida, on behalf of the Real Property, Probate and
Trust Law Section of The Florida Bar; Jennifer Ann Winegardner of The Chase
Law Firm, Tallahassee, Florida, on behalf of the Continental Group, Inc.,
Associations, Inc., and CEOMC Florida, Inc.; Mauri Ellis Peyton, II and Gian C.
Ratnapala of PeytonBolin, PL, Fort Lauderdale, Florida, on behalf of Community
Associations Institute; David Mark Felice, Tampa, Florida, on behalf of Terra
Management Services, Inc.; Jeffrey Michael Oshinsky, Miami, Florida, on behalf
of Association Financial Services, L.C.; Mark R. Benson, Community Association
Manager, Fort Myers, Florida; and Steve Caballero, Community Association
Manager, Fort Lauderdale, Florida, on behalf of Exclusive Property Management,

      Responding




                                        3
                            APPENDIX

                       THE FLORIDA BAR
                  STANDING COMMITTEE ON THE
                  UNLICENSED PRACTICE OF LAW



FAO #2012-2, ACTIVITIES OF COMMUNITY ASSOCIATION MANAGERS
_________________________________________________________________/



                  PROPOSED ADVISORY OPINION




                            May 15, 2013




                                 4
                                  INTRODUCTION
      Pursuant to rule 10-9 of the Rules Regulating The Florida Bar, The Florida

Bar’s Real Property, Probate & Trust Law Section petitioned the Standing

Committee on Unlicensed Practice of Law (“the Standing Committee”) for an

advisory opinion on the activities of community association managers (“CAMS”). 2

      The petitioner sought confirmation that the activities found to be the

unlicensed practice of law in the 1996 opinion (Florida Bar re: Advisory Opinion–

Activities of Community Association Managers, 681 So. 2d 1119 (Fla. 1996))

continue to be the unlicensed practice of law. Those activities (hereinafter 1996

opinion) include the following:

      A.     drafting of a claim of lien and satisfaction of claim of lien;

      B.    preparing a notice of commencement;

      C.    determining the timing, method, and form of giving notices of

meetings;

      D.    determining the votes necessary for certain actions by community

      associations;

      E.    addressing questions asking for the application of a statute or rule; and

      F.    advising community associations whether a course of action is




      2. Although the request for opinion addresses CAMS specifically, the
Standing Committee’s opinion would apply to the activities of any nonlawyer.

                                          5
authorized by statute or rule.

      The petitioner also asked if it was the unlicensed practice of law for a CAM

to engage in any of the following activities (hereinafter “2012 request”):

      1.     Preparation of a Certificate of assessments due once the delinquent

      account is turned over to the association’s lawyer;

      2.     Preparation of a Certificate of assessments due once a foreclosure

      against the unit has commenced;

      3.     Preparation of Certificate of assessments due once a member disputes

      in writing to the association the amount alleged as owed;

      4.     Drafting of amendments (and certificates of amendment that are

      recorded in the official records) to declaration of covenants, bylaws, and

      articles of incorporation when such documents are to be voted upon by the

      members;

      5.     Determination of number of days to be provided for statutory notice;

      6.     Modification of limited proxy forms promulgated by the State;

      7.     Preparation of documents concerning the right of the association to

      approve new prospective owners;

      8.     Determination of affirmative votes needed to pass a proposition or

      amendment to recorded documents;

      9.     Determination of owners’ votes needed to establish a quorum;


                                          6
      10.      Drafting of pre-arbitration demand letters required by 718.1255, Fla.

      Stat.;

      11.      Preparation of construction lien documents (e.g. notice of

      commencement, and lien waivers, etc.);

      12.      Preparation, review, drafting and/or substantial involvement in the

      preparation/execution of contracts, including construction contracts,

      management contracts, cable television contracts, etc.;

      13.      Identifying, through review of title instruments, the owners to receive

      pre-lien letters; and

      14.      Any activity that requires statutory or case law analysis to reach a

      legal conclusion.

      Pursuant to Rule 10-9.1(f) of the Rules Regulating The Florida Bar, public

notice of the hearing was provided on The Florida Bar’s website, in The Florida

Bar News, and in the Orlando Sentinel. The Standing Committee held a public

hearing on June 22, 2012.

      Testifying on behalf of the petitioner was Steve Mezer, an attorney who is

the chairman of the Condominium and Planning Development Committee of the

Real Property Probate and Trust Law Section of The Florida Bar, and attorney

Scott Peterson. In addition to the petitioner, the Standing Committee received

testimony from Mitchell Drimmer, a CAM; Jeffrey M. Oshinsky, General Counsel


                                            7
of Association Financial Services, a licensed collection agency; Andrew Fortin,

Vice-President of Government Relations for Associa, a community management

company; Kelley Moran, Vice-President of Rampart Properties and a CAM;

Robert Freedman, an attorney; Erica White, prosecuting attorney for the

Regulatory Council of Community Association Managers located within the

Department of Business and Professional Regulation; Jane Cornett, an attorney;

Tony Kalliche, Executive Vice-President and general counsel for the Continental

Group, a community association management firm; David Felice, an attorney, a

CAM, and owner of a community association management firm; Christopher

Davies, an attorney; Brad van Rooyen, Executive Director of the Chief Executive

Offices of Management Companies; Victoria Laney; Alan Garfinkel, an attorney;

and Michael Gelfand, an attorney. There were also several individuals present to

observe the hearing.

      In addition to the testimony presented at the hearing, the Standing

Committee received written testimony which has been filed with this Court.

Included in the written testimony was a form petition that was submitted by

hundreds of homeowner and condominium associations. As the petitions are

substantially the same, only one has been filed with the Court as part of the written

testimony. By and large the testimony reflects the belief that the previous

guidance provided by the Court in its 1996 opinion provides adequate guidance in


                                          8
this area and another opinion is not necessary. The testimony also reflected their

concerns that too much regulation in this area will raise the cost of living in these

communities and could potentially have a serious financial impact on community

associations, property owners, and CAMS.

                                    Background
      CAMS are licensed through the Department of Business and Professional

Regulation, Division of Professions, pursuant to Sections 468.431 – 468.438,

Florida Statutes, and Florida Administrative Code chapters 61E14 and 61-20.

(Written testimony of Dr. Anthony Spivey.) State law defines community

association management as including the following activities: “controlling or

disbursing funds of a community association, preparing budgets or other financial

documents for a community association, assisting in the noticing or conduct of

community association meetings, and coordinating maintenance for the residential

development and other day-to-day services involved with the operation of a

community association.” Section 468.431(2), Florida Statutes (2012). There are

over 18,500 individuals and over 1600 businesses licensed as CAMS in Florida.

(Written testimony of J. Layne Smith.)

      1996 Opinion

      When the Court considered the activities of CAMS in 1996, it relied on




                                           9
Sperry3 to determine what activity constitutes the practice of law:

      [I]n determining whether the giving of advice and counsel and the
      performance of services in legal matters for compensation constitute
      the practice of law it is safe to follow the rule that if the giving of [the]
      advice and performance of [the] services affect important rights of a
      person under the law, and if the reasonable protection of the rights and
      property of those advised and served requires that the persons giving
      such advice possess legal skill and a knowledge of the law greater
      than that possessed by the average citizen, then the giving of such
      advice and the performance of such services by one for another as a
      course of conduct constitute the practice of law.

Applying the test, the Court held that:

      [T]he practice of law also includes the giving of legal advice and
      counsel to others as to their rights and obligations under the law and
      the preparation of legal instruments, including contracts, by which
      legal rights are either obtained, secured or given away, although such
      matters may not then or ever be the subject of proceedings in a court.4

      The Standing Committee and Court found that those activities that required

the interpretation of statutes, administrative rules, community association

governing documents or rules of civil procedure constituted the practice of law.5

Drafting documents, even if form documents, which require a legal description of

the property or which determine or establish legal rights are also the practice of




       3. The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), vacated on
other grounds, 373 U.S. 379 (1963).

      4. Id.

      5. 1996 opinion, 681 So. 2d at 1123.

                                           10
law.6 As the opinion noted, failure to complete or prepare these forms accurately

could result in serious legal and financial harm to the property owner.7 Thus, the

Court found the following activities when performed by a CAM would constitute

the unlicensed practice of law:

              completing BPR Form 33-032 (frequently asked questions and

      answers sheet);

              drafting a claim of lien, satisfaction of claim of lien, and notice of

      commencement form;

              determining the timing, method and form of giving notice of

      meetings;

              determining the votes necessary for certain actions which would entail

      interpretation of certain statutes and rules; and

              answering a community association’s 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 association’s

      governing documents.

      The Standing Committee and Court found that those activities that were




      6. Id. at 1123.

      7. Id.

                                            11
ministerial in nature and did not require significant legal expertise and

interpretation or legal sophistication or training did not constitute the practice of

law.8 The Court found that the following activities when performed by a CAM

would not constitute the unlicensed practice of law:

              completion of two Secretary of State forms (change of registered

      agent or office for corporations, and annual corporation report),

              drafting certificates of assessments,

              drafting first and second notices of date of election,

              drafting ballots,

              drafting written notices of annual or board meetings,

              drafting annual meeting or board meeting agendas, and

              drafting affidavits of mailing.

      The Standing Committee and Court found that other activities existed in a

more grey area and whether or not they constituted the unlicensed practice of law

would depend on the specific factual circumstances.9 The Court found the

following activities to be dependent on the specific circumstances:

              modification of limited proxy forms promulgated by the state




      8. Id.

      9. Id. at 1122.

                                            12
           drafting a limited proxy form, and

           drafting documents required to exercise the community association’s

      right of approval or right of first refusal on the sale or lease of a parcel

      The Court found that modification of limited proxy forms promulgated by

the State that involved ministerial matters could be performed by a CAM.10 The

Court found the following modifications to be ministerial matters:

           modifying the form to include the name of the community association;

           phrasing a yes or no voting question concerning either waiving

      reserves or waiving the compiled, reviewed, or audited financial statement

      requirement;

           phrasing a yes or no voting question concerning carryover of excess

      membership expenses; and

           phrasing a yes or no voting question concerning the adoption of

      amendments to the Articles of Incorporation, Bylaws, or condominium

      documents.11

      For more complicated modifications, the Court found that an attorney must

be consulted.




      10. Id. at 1124.

      11. Id.

                                          13
      Regarding the drafting of a limited proxy form, the Court found that those

items which were ministerial in nature, such as filling in the name and address of

the owner, do not constitute the practice of law. But if drafting of an actual limited

proxy form or questions in addition to those on the preprinted form is required, the

CAM should consult with an attorney.12

      The Court also found that the drafting of documents required to exercise a

community association’s right of approval or first refusal to a sale or lease may

require the assistance of an attorney, since there could be legal consequences to the

decision.13 Although CAMS may be able to draft the documents, they cannot

advise the association as to the legal consequences of taking a certain course of

action.14

      It is the opinion of the Standing Committee that no changes are needed to

the 1996 opinion and those activities found to be the unlicensed practice of law

continue to be the unlicensed practice of law and those activities that did not

constitute the unlicensed practice of law are still not the unlicensed practice of law.

However, the Standing Committee felt that in order to provide further guidance to

CAMS and members of The Florida Bar, some of the 1996 activities which are part


      12. Id.

      13. Id.

      14. Id.

                                          14
of the current request needed clarification. The Standing Committee also felt that

activities that were not addressed in 1996 should be addressed using the 1996

opinion as guidance.

      2012 Request

      Petitioner’s request sets forth 14 activities. Each activity will be addressed.

1. Preparation of a Certificate of assessments due once the delinquent account
is turned over to the association’s lawyer;
2. Preparation of a Certificate of assessments due once a foreclosure against
the unit has commenced;
3. Preparation of Certificate of assessments due once a member disputes in
writing to the association the amount alleged as owed;

      In the 1996 opinion the Court found that the preparation of certificates of

assessments were ministerial in nature and did not require legal sophistication or

training. Therefore, it was not the unlicensed practice of law for a CAM to prepare

certificates of assessments.

      None of the oral or written testimony provided a compelling reason why

these certificates of assessment would warrant different treatment from those

previously addressed by the Court in the 1996 opinion. Thus, it is the opinion of

the Standing Committee that a CAM’s preparation of these documents would not

constitute the unlicensed practice of law.

4. Drafting of amendments (and certificates of amendment that are recorded
in the official records) to declaration of covenants, bylaws, and articles of
incorporation when such documents are to be voted upon by the members;

      In the 1996 opinion, the Court held that the drafting of documents which


                                         15
determine substantial rights is the practice of law. The governing documents set

forth above determine substantial rights of both the community association and

property owners. Consequently, under the 1996 opinion, the preparation of these

documents constitutes the unlicensed practice of law.

      Further, in Florida Bar v. Town, 174 So. 2d 395 (Fla. 1965), the Court held

that a nonlawyer may not prepare bylaws, articles of incorporation, and other

documents necessary to the establishment of a corporation, or amendments to such

documents. Amendments to a community association’s declaration of covenants,

bylaws, and articles of incorporation can be analogized to the corporate documents

discussed in Town. Therefore, it is the opinion of the Standing Committee that the

Court’s holding in the 1996 opinion should stand and nonlawyer preparation of the

amendments to the documents would constitute the unlicensed practice of law.

5. Determination of number of days to be provided for statutory notice;

      In the 1996 opinion, the Court found that determining the timing, method,

and form of giving notices of meetings requires the interpretation of statutes,

administrative rules, governing documents, and rules of civil procedure and that

such interpretation constitutes the practice of law. Thus, if the determination of the

number of days to be provided for statutory notice requires the interpretation of

statutes, administrative rules, governing documents or rules of civil procedure,

then, as found by the Court in 1996, it is the opinion of the Standing Committee



                                         16
that it would constitute the unlicensed practice of law for a CAM to engage in this

activity. If this determination does not require such interpretation, then it would

not be the unlicensed practice of law.

6. Modification of limited proxy forms promulgated by the State;

      In the 1996 opinion, the Court found that the modification of limited proxy

forms that involved ministerial matters could be performed by a CAM, while more

complicated modifications would have to be made by an attorney. 15 The Court

found the following to be ministerial matters:

            modifying the form to include the name of the community association;

            phrasing a yes or no voting question concerning either waiving

      reserves or waiving the compiled, reviewed, or audited financial statement

      requirement;

            phrasing a yes or no voting question concerning carryover of excess

      membership expenses; and

            phrasing a yes or no voting question concerning the adoption of

      amendments to the Articles of Incorporation, Bylaws, or condominium

      documents.16

      For more complicated modifications, the Court found that an attorney must


      15. Id.

      16. Id.

                                         17
be consulted. The 1996 opinion did not provide any examples of more

complicated modifications which would require consultation with an attorney. The

Standing Committee believes this activity requires further clarification by example.

      Using the examples given by the Court, the types of questions that can be

modified without constituting the unlicensed practice of law do not require any

discretion in the phrasing. For example, the sample form provided by the state has

the following question: “Do you want to provide for less than full funding of

reserves than is required by § 718.112(2)(f), Florida Statutes, for the next

fiscal/calendar year? ________ YES _______ NO.” There is no discretion

regarding the wording, it is a yes or no question. The question could be reworded

as follows: “Section 718.112(2)(f), Florida Statutes, discusses funding of reserves.

Do you want to provide for less than full funding of reserves than is required by

the statute for the next fiscal/calendar year? ________ YES _______ NO.” It is

still a yes or no question. As no discretion is involved, it does not constitute the

unlicensed practice of law to modify the question.

      On the other hand, if the question requires discretion in the phrasing or

involves the interpretation of statute or legal documents, the CAM may not modify

the form. After the above question regarding the reserves the form states “If yes,

vote for one of the board proposed options below: (The option with the most votes

will be the one implemented.) LIST OPTIONS HERE.” Listing the options would


                                          18
be a modification of the form. If what to include in the list requires discretion or

an interpretation of statute, an attorney would have to be consulted regarding the

language and the CAM could not make a change. For example, § 718.112(f) has

language regarding when a developer may vote to waive the reserves. The statute

discusses the timing of the waiver and under what circumstances it may occur. As

a question regarding this waiver requires the interpretation of statute, a CAM could

not modify the form by including this question without consulting with a member

of The Florida Bar. As found in the 1996 opinion, making such a modification

would constitute the unlicensed practice of law.

7. Preparation of documents concerning the right of the association to
approve new prospective owners;

      In the 1996 opinion, the Court found that drafting the documents required to

exercise a community association’s right of approval or first refusal to a sale or

lease may or may not constitute the unlicensed practice of law depending on the

specific factual circumstances. It may require the assistance of an attorney, since

there could be legal consequences to the decision. Although CAMs may be able to

draft the documents, they cannot advise the association as to the legal

consequences of taking a certain course of action. Thus, the specific factual

circumstances will determine whether it constitutes the unlicensed practice of law

for a CAM to engage in this activity.

      This finding can also be applied to the preparation of documents concerning


                                          19
the right of the association to approve new prospective owners. While there was

no testimony giving examples of such documents, the Court’s underlying principle

that if the preparation requires the exercise of discretion or the interpretation of

statutes or legal documents, a CAM may not prepare the documents.17 For

example, the association documents may contain provisions regarding the right of

first refusal. Preparing a document regarding the approval of new owners may

require an interpretation of this provision. An attorney should be consulted to

ensure that the language comports with the association documents. On the other

hand, the association documents may contain a provision regarding the size of pets

an owner may have. Drafting a document regarding this would be ministerial in

nature as an interpretation of the documents is generally not required.

8. Determination of affirmative votes needed to pass a proposition or
amendment to recorded documents;
9. Determination of owners’ votes needed to establish a quorum;

      In the 1996 opinion, the Court found that determining the votes necessary to

take certain actions – where the determination would require the interpretation and

application both of condominium acts and of the community association’s

governing documents – would constitute the practice of law. Thus, if these

determinations require the interpretation and application of statutes and the

community association’s governing documents, then it is the opinion of the


      17. Id. at 1123.

                                           20
Standing Committee that it would constitute the unlicensed practice of law for a

CAM to make these determinations. If these determinations do not require such

interpretation and application, it is the opinion of the Standing Committee that they

would not constitute the unlicensed practice of law.

10. Drafting of pre-arbitration demand letters required by 718.1255, Fla.
Stat.;

      Under Section 718.1255, Fla. Stat., prior to filing an action in court, a party

to a dispute must participate in nonbinding arbitration. The nonbinding arbitration

is before the Division of Florida Condominiums, Time Shares, and Mobile Homes

(hereinafter “the Division”). Prior to filing the petition for arbitration with the

Division, the petitioner is required to serve a pre-arbitration demand letter on the

respondent, providing:

      1.     advance written notice of the specific nature of the dispute,

      2.     a demand for relief, and a reasonable opportunity to comply or to

             provide the relief, and

      3.     notice of the intention to file an arbitration petition or other legal

             action in the absence of a resolution of the dispute.

      Failure to include the allegations or proof of compliance with these

prerequisites requires the dismissal of the petition without prejudice.

      In the 1996 opinion, the Court found that if the preparation of a document

requires the interpretation of statutes, administrative rules, governing documents,


                                          21
and rules of civil procedure, then the preparation of the documents constitutes the

practice of law. It is the opinion of the Standing Committee that the preparation of

a pre-arbitration demand letter would not require the interpretation of the above-

referenced statute. The statutory requirements appear to be ministerial in nature,

and do not appear to require significant legal expertise and interpretation or legal

sophistication or training. Consequently, the preparation of this letter would not

satisfy the second prong of the Sperry test, which requires that the person

providing the service possess legal skill and a knowledge of the law greater than

that possessed by the average citizen. For these reasons, it is the opinion of the

Standing Committee that the preparation of a pre-arbitration demand letter by a

CAM would not constitute the unlicensed practice of law.

      Moreover, an argument can be made that the activity, even if the practice of

law, is authorized. As noted in the Petitioner’s March 28, 2012, letter, the Division

has held that the statute does not require an attorney to draft the letter. (Formal

Advisory Opinion request.) In Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980),

the Court held that the legislature could oust the Supreme Court’s authority to

protect the public and authorize a nonlawyer to practice law before administrative

agencies. As the Division of Florida Condominiums, Time Shares, and Mobile

Homes has held that a nonlawyer may prepare the letter, the activity is authorized

and not the unlicensed practice of law.


                                          22
11. Preparation of construction lien documents (e.g. notice of commencement,
and lien waivers, etc.);

         In the 1996 opinion, the Court found that the drafting of a notice of

commencement form constitutes the practice of law because it requires a legal

description of the property and this notice affects legal rights. Further, failure to

complete or prepare this form accurately could result in serious legal and financial

harm to the property owner.18

         While the 1996 opinion did not specifically address the preparation of lien

waivers, the 1996 opinion found that preparing documents that affect legal rights

constitutes the practice of law. A lien waiver would certainly affect an

association’s legal rights. Further, as suggested by one of the witnesses, the area of

construction lien law is a very complicated and technical area. (Tr., p. 40, l. 10-

19.) Therefore, it is the Standing Committee’s opinion that the preparation of

construction lien documents by a CAM would constitute the unlicensed practice of

law.19

12. Preparation, review, drafting and/or substantial involvement in the
preparation/execution of contracts, including construction contracts,


         18. Id. at 1123.

      19. In re Advisory Opinion–Nonlawyer Preparation of Notice to Owner and
Notice to Contractor, 544 So. 2d 1013 (Fla. 1989), the Court held that it was not
the unlicensed practice of law for nonlawyers to complete notice to owner and
preliminary notice to contractor forms under the mechanic’s lien laws so those
forms are not included in the current opinion.

                                            23
management contracts, cable television contracts, etc.;

      In the 1996 opinion, the Court found that the preparation of documents that

established and affected the legal rights of the community association was the

practice of law. Further, in Sperry, the Court found the preparation of legal

instruments, including contracts, by which legal rights are either obtained, secured

or given away, was the practice of law. Thus, it is the Standing Committee’s

opinion that it constitutes the unlicensed practice of law for a CAM to prepare such

contracts for the community association.

13. Identifying, through review of title instruments, the owners to receive pre-
lien letters;

      The testimony on this subject was mixed. Some witnesses felt that this

activity was ministerial and would not be the unlicensed practice of law (written

testimony of Jeffrey M. Oshinsky, Mark R. Benson, and R. L. Reimer), while

others thought that this would constitute the unlicensed practice if performed by a

CAM (written testimony of Nicholas F. Lang, Shawn G. Brown, and Emily L.

Lang). However, none of the testimony defined what was meant by identifying the

owners to receive pre-lien letters.

      It is the opinion of the Standing Committee that if the CAM is only

searching the public records to identify who has owned the property over the years,

then such review of the public records is ministerial in nature and not the

unlicensed practice of law. In other words, if the CAM is merely making a list of


                                         24
all record owners, the conduct is not the unlicensed practice of law.

      On the other hand, if the CAM uses the list and then makes the legal

determination of who needs to receive a pre-lien letter, this would constitute the

unlicensed practice of law. This determination goes beyond merely identifying

owners. It requires a legal analysis of who must receive pre-lien letters. Making

this determination would constitute the unlicensed practice of law.

14. Any activity that requires statutory or case law analysis to reach a legal
conclusion.

      In the 1996 opinion, the Court found that it constituted the unlicensed

practice of law for a CAM to respond to a community association’s questions

concerning the application of law to specific matters being considered, or to advise

community associations that a course of action may not be authorized by law or

rule. The court found that this amounted to nonlawyers giving legal advice and

answering specific legal questions, which the court specifically prohibited in In re:

Joint Petition of The Florida Bar and Raymond James & Assoc., 215 So. 2d 613

(Fla. 1968) and Sperry.

      Further, in Florida Bar v. Warren, 655 So. 2d 1131 (Fla. 1995), the Court

held that it constitutes the unlicensed practice of law for a nonlawyer to advise

persons of their rights, duties, and responsibilities under Florida or federal law and

to construe and interpret the legal effect of Florida law and statutes for third

parties. In Florida Bar v. Mills, 410 So. 2d 498 (Fla. 1982), the Court found that it


                                          25
constitutes the unlicensed practice of law for a nonlawyer to interpret case law and

statutes for others.

      Thus, it is the Standing Committee’s opinion that it would constitute the

unlicensed practice of law for a CAM to engage in activity requiring statutory or

case law analysis to reach a legal conclusion.

                                 CONCLUSION
      The findings of the Court in Florida Bar re: Advisory Opinion–Activities of

Community Association Managers, 681 So. 2d 1119 (Fla. 1996) should not be

disturbed and answer many of the questions posed by the Petitioner. Areas which

required clarification have been clarified by way of example using the 1996

opinion as guidance. Similarly, activities that were not addressed in 1996 are

addressed using the 1996 opinion and other case law as guidance. This proposed

advisory opinion is the Standing Committee on Unlicensed Practice of Law’s

interpretation of the law.

                                       Respectfully Submitted,
                                         /s/ Nancy Blount by Jeffrey T. Picker
                                       Nancy Munjiovi Blount, Chair
                                       Standing Committee on
                                       Unlicensed Practice of Law
                                       The Florida Bar
                                       651 E. Jefferson Street
                                       Tallahassee, FL 32399-2300
                                       (850) 561-5840
                                       Fla. Bar No. 332658
                                       Primary Email: upl@flabar.org



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  /s/ Jeffrey T. Picker
Jeffrey T. Picker
Fla. Bar No. 12793

  /s/ Lori S. Holcomb
Lori S. Holcomb
Fla. Bar No. 501018
The Florida Bar
651 East Jefferson Street
Tallahassee, Florida 32399-2300
(850) 561-5840
Primary Email: jpicker@flabar.org
Secondary Email: upl@flabar.org




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