Florida Bar v. Brumbaugh
355 So. 2d 1186 (1978)
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Rule of Law:
A non-lawyer may sell legal forms and provide secretarial services to fill them out with information provided by a client, but engages in the unauthorized practice of law if they give personalized advice, select forms for the client, or provide guidance on court procedures.
Facts:
- Marilyn R. Brumbaugh, who was not a licensed attorney, operated a business called 'Marilyn's Secretarial Service.'
- She advertised and sold 'Do-It-Yourself' kits for uncontested divorces, wills, and bankruptcies for a fee of $50.
- Brumbaugh would ask her customers questions regarding custody, child support, or alimony to determine which of her four standardized sets of divorce papers was appropriate for them.
- After selecting the appropriate forms, she would type them, filling in the blanks with information provided by the customer.
- Brumbaugh instructed customers on how to sign the documents, where to file them, how much the filing fees were, and what testimony was needed at the final hearing.
- In at least one instance, she prepared a quit claim deed related to a customer's marital property.
- No customer ever filed a complaint against Brumbaugh regarding her services; the action was initiated by The Florida Bar.
Procedural Posture:
- The Florida Bar filed a petition with the Supreme Court of Florida, the state's highest court, against Marilyn Brumbaugh.
- The petition charged Brumbaugh with the unauthorized practice of law and sought a permanent injunction to prohibit her from continuing these activities.
- The Supreme Court of Florida appointed a referee to conduct an evidentiary hearing and make findings of fact and conclusions of law.
- The referee found that Brumbaugh's activities constituted the unauthorized practice of law and submitted his report to the Supreme Court of Florida.
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Issue:
Does a non-lawyer who sells and helps customers complete standardized legal forms for uncontested divorces, including asking questions to elicit necessary information and providing instructions on filing procedures, engage in the unauthorized practice of law?
Opinions:
Majority - Per Curiam
Yes. While a non-lawyer may sell legal forms and act as a mere typist, they engage in the unauthorized practice of law when their personal contact with a client involves giving advice, selecting appropriate forms, or providing instructions on legal procedures. The court's primary goal is to protect the public from unqualified legal advisors. However, this must be balanced against a citizen's constitutional right to self-representation and access to information. Therefore, the court modified its previous, stricter holdings to permit the sale of legal forms and general instructional materials. Brumbaugh's permissible activities are limited to selling forms and typing information given to her in writing by her clients. Her impermissible activities, constituting the unauthorized practice of law, include asking clients questions to complete forms, selecting forms for them, and advising them on filing, court procedures, and necessary evidence.
Concurring - Karl, J.
Yes. The rules against the unauthorized practice of law are necessary to protect the public from incompetent and unregulated individuals offering legal services for profit. The need for public protection must be balanced against constitutional rights, such as free speech. The court's prior definitions of the practice of law were likely too broad to withstand a First Amendment challenge. The majority's decision correctly contracts that definition, drawing a clearer and constitutionally permissible line between what is and is not the practice of law, thereby balancing public protection with individual rights.
Analysis:
This decision represents a significant shift in Florida law, relaxing a previously strict prohibition on non-lawyer assistance with legal forms. By distinguishing between permissible clerical services and impermissible legal advice, the court carved out a space for 'legal technicians' or scriveners. The ruling acknowledges the public's right to self-representation and access to the courts, especially in simplified matters like no-fault divorce, while still aiming to protect consumers from unqualified legal counsel. This case set a foundational precedent for defining the boundaries of non-lawyer legal services and influenced how other states have approached the issue of access to justice versus the regulation of the legal profession.
