Accountants who are called upon by their clients for advice must be careful not to give legal advice or provide legal services. In order to determine whether an activity constitutes the unlicensed practice of law, a two part analysis must be made. First, it must be determined whether the activity is the practice of law. The second question is whether the practice is authorized. If an activity is the practice of law but the activity is authorized, the activity is not the unlicensed practice of law and may be engaged in by a non-lawyer. The Florida Supreme Court developed the following test to determine whether an activity is the practice of law: “. . .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.” When applying this test it should be kept in mind that “the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation.”
There are clear practices that accountants may be tempted to engage in which constitutes the unlicensed practice of law, including drafting corporate documents, drafting legal documents for clients (such as non-compete agreements, confidentiality agreements, asset purchase agreements, stock purchase agreements, employment agreements, independent contractor agreements, non-disclosure agreements, real estate contracts, etc…), interpretation of laws and advice regarding a client’s rights and obligations under those laws, advising clients regarding immigration and bankruptcy matters and completing forms filed to obtain benefits under the immigration laws and bankruptcy laws, and representation in certain venues (such as courts and certain administrative agencies). If you are needing a great defense lawyer visit https://www.ladanlaw.com/orlando-criminal-defense-attorney/. According to Loveland CPA, it also constitutes the unlicensed practice of law for a accountants to hold themselves out as an attorney either expressly or impliedly. This would include using the title Esquire , using the initials J.D. if they are being used to solicit legal services, using “legal” in the name of their business or advertisement, using the title “attorney” or “lawyer” or any other title, such as notario publico, which holds the person out as being able to provide legal services. It also constitutes the unlicensed practice of law for an accounting firm to advertise to provide legal services even if the services are being performed by a member of The Florida Bar since a company may not practice law. Furthermore, although an accountant may sell forms and complete the form with information provided in writing by a client, if the accountant is using a form approved by the Supreme Court of Florida, the accountant may engage in limited oral communication to elicit the factual information that goes in the blanks of the form, however, she may not make any changes to the form and may not give advice on possible courses of action. If the accountant uses a form which has not been approved by the Supreme Court of Florida, she may only type the blanks on the form with information obtained from the individual in writing. Therefore, accountants may not prepare corporate documents for clients. This includes the articles of incorporation, the corporate charter and related documents. Likewise, accountants cannot prepare a warranty deed, quitclaim deed, land trusts, leases and mortgage agreements for clients.
Any person not licensed or otherwise authorized to practice law in Florida who practices law or holds herself out of the public as qualified to practice law in Florida, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, practice law in this state, commits a felony of the third degree, punishable by a term of imprisonment not exceeding 5 years and a fine of up to $5,000.00. So, if an accountant is guilty of practicing law without a license, she may face stiff criminal penalties. In addition to criminal penalties, some courts have held that non lawyers who perform legal and accounting services Bundaberg may be held to the same standard as lawyers providing those serves. Therefore, if an accountant does provide legal services to her clients and was negligent in doing so, and her negligences causes her clients damages, she may be sued for legal malpractice.
The unlicensed practice of law is a serious issue with serious consequences. Any top small business accountant in Brighton who has been involved in helping their clients with legal issues needs to be aware of these prohibitions and the potential ramifications that can result if she is deemed to have engaged in the unauthorized practice of law. If she does not, she can expose herself to stiff criminal and civil liability. If you are unsure of whether or not your actions constitute the unauthorized practice of law, please contact Attorney Persad at 407-647-7887 or email him at attorneypersad@cplspa.com. Attorney Persad is a former member and chairman of the Florida Bar’s 9th Circuit Unlicensed Practice of Law Committee.
