Dear Board Members,

Leland Management wanted to alert you to important developments regarding the Florida Bar Association which could have a substantial financial impact on your community’s management and legal expenses. On June 22, 2012 the Florida Bar held a public hearing to discuss matters of the unauthorized practice of law. Members of the Florida Bar’s Real Property Section have petitioned the Bar to declare a list of activities, many legally done by community association managers or other professionals, to be the practice of law. This would require that the work could ONLY be done by attorneys.  Many of the issues raised in the petition are already subject to the current guidelines that define what work community managers can do and what work an attorney must handle. 

Yet, despite this existing guidance issued by the Florida Supreme Court, the Bar is seeking to reclassify much of this work so that attorneys only can perform it. This reclassification would make it a felony for an association manager or other professional to perform these tasks for their clients.

Leland Management, along with a number of other management firms, law firms and other interested parties submitted comments to support the current guidelines and reject this attempt to reclassify these routine duties as the “practice of law”.  We believe it is important that community associations should have a fair choice in choosing professionals to engage for their critical services, legal or otherwise. If the Bar is successful in this effort it will significantly increase the cost that community associations must pay for these services. 

The Real Property Section’s petition seeks to categorize the following activities, many of which can currently be done by your manager or other professionals, as the practice of law:
 

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 a 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 quorum.

10. Drafting of pre-arbitration demands.

11. Preparation of construction lien documents (e.g. notices 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 (intent to lien letters).

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

If the petition for reclassification of these and other activities is approved by the Bar and affirmed by the Florida Supreme Court, associations will have no choice but to have this work performed by attorneys. This will needlessly increase all associations’ legal expenses at a time few can afford such an increase. Because attorneys are a self-regulated profession, a board of attorneys will be hearing a request from attorneys to classify certain work as “for attorneys only”. We are working to ensure that the Bar hears from consumers like you and professionals like us before they vote themselves more business. The Bar is working to finalize their decision on September 20, 2012.

Clearly there will always be a shifting line between work that should only be done by attorneys versus work that can be done by other licensed professionals. Such determinations, especially in the realm of professional services, should be done through a constructive dialog, not through a process controlled by the professionals who stand to benefit most from limiting consumer choice.  Making your voice heard on this matter will help ensure that outcome.
 

Here’s what you can do to help:

Email a letter to Jpicker@flabar.org on or before September 19th, 2012

INSTRUCTIONS TO EMAIL YOUR OPINION

1. Click on this address Jpicker@flabar.org 

2. Cut and paste message below and paste it into the body of the new email  

3. In the subject line cut and paste the following:  FAO #2012-2, Activities of Community Association Manager

4. Insert name, title and community where noted

5.  Send the new email

 
SAMPLE MESSAGE TO E-MAIL
 
Dear Members of the Standing Committee re: the “Unlicensed Practice of Law”:
 
On behalf of the board of our community association and our fellow residents, we are writing to express our concerns with efforts by the Florida Bar to classify activities currently performed by Licensed Community Association Managers (LCAM’s) and other professionals as work that only attorneys can perform.  Attempting to classify legitimate services, and in many cases the contractual obligations, of LCAM’s to be the “unlicensed practice of law” will dramatically increase the cost of home ownership in our community, to say nothing of the cost to Associations, many of whom are struggling to meet their day-to-day obligations.
 
Our community relies on both LCAM’s and attorneys in ensuring lawful governance of our community. Since both community managers and attorneys are licensed professions, we currently have appropriate recourse for any actions, which could result in harm to our community. Additionally, we feel that the current Advisory Opinion issued by the state Supreme Court in 1996 provides the needed flexible standard that allows our board, with support of professionals like LCAM’s, to fully understand when we need advice of counsel and when we can rely on other professionals for assistance.  We are not aware of any complaints related to LCAM’s, or associations for that matter, that would justify this kind of action.
 
Pre-lien letters, review of simple contracts, drafting of simple amendments to our documents or other ministerial matters do not require an attorney and have not been the subject of any complaints we have received.  It is troubling to us that the regulatory body for attorneys, the Florida Bar, would entertain a Petition that, if affirmed by the state Supreme Court, would effectively force associations to utilize attorneys and create a captive market for attorneys – all at the expense of homeowners, associations and consumer choice.  This Petition – if affirmed by the state Supreme Court – will dramatically increase costs to homeowners and community associations at a time when we already are feeling the impact of rising costs and dwindling revenues to pay for them.  Do attorneys – and by extension the Florida Bar – want to be perceived as further exacerbating an already poor state of affairs for associations and homeowners?
 
Thus, on the matter before the committee, we encourage you to stand with homeowners and:

• Reject the blanket classification of more than 39 activities as work that only attorneys can perform; and
• Affirm the current Supreme Court guidance that provides flexibility on allocation of such work