Florida Bar re Advisory Opinion

681 So. 2d 1119, 21 Fla. L. Weekly Supp. 328, 1996 Fla. LEXIS 1243, 1996 WL 403726
CourtSupreme Court of Florida
DecidedJuly 18, 1996
DocketNo. 86929
StatusPublished
Cited by4 cases

This text of 681 So. 2d 1119 (Florida Bar re Advisory Opinion) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Bar re Advisory Opinion, 681 So. 2d 1119, 21 Fla. L. Weekly Supp. 328, 1996 Fla. LEXIS 1243, 1996 WL 403726 (Fla. 1996).

Opinion

HARDING, Justice.

Pursuant to rule 10-7.1(b) of the Rules Regulating The Florida Bar, Jone B. Weist, a licensed Community Association Manager (“CAM”), petitioned The Florida Bar Standing Committee on the Unlicensed Practice of Law (“the Standing Committee”) for an advisory opinion on whether several aspects of community association management constitute the unlicensed practice of law. We have jurisdiction to review the proposed advisory opinion pursuant to rule 10-7.1(g) of the Rules Regulating the Florida Bar and article V, section 15 of the Florida Constitution.

Specifically, the Standing Committee was asked to decide whether it constitutes the unlicensed practice of law for a CAM to engage in any of the following activities:

1.To complete any of the following pre-printed forms without direction from the client as to which form to use or what information goes on the form:
A. Secretary of State form CR2E045 (Statement of Change of Registered Office or Registered Agent or Both for Corporations);
B. Secretary of State Annual Corporation Report;
C. Department of Business and Professional Regulation Form BPR 33-032 (Frequently Asked Questions and Answers Sheet);
2. To draft any of the following documents for clients:
A. Certificate of Assessments;
B. Claim of Lien;
C. Satisfaction of Claim of Lien;
D. First Notice of Date of Election;
E. Second Notice of Date of Election;
F. Ballot;
G. Written Notice of Annual Meeting;
H. Annual Meeting Agenda
I. Modification of Department of Business and Professional Regulation Form BPR 33-033 (Limited Proxy Form) for a specific community association and a specific meeting (including modifying the form with the name of the association; the date, time, and place of the meeting; phrasing yes or no questions on the issues of waiving reserves, waiving the compiled, reviewed or audited financial statement requirement, carryover of excess membership expenses, and adoption of amendments to the Articles of Incorporation, Bylaws or condominium cooperative documents);
J. Limited Proxy Form;
K. Affidavit of Mailing;
L. Notice of Board Meeting;
M. Board Meeting Agenda;
N. Notice of Commencement form;
O. Documents required to exercise the association’s right of approval and/or right of first refusal on the sale or lease of a parcel;
3. To determine the timing, method, and form of giving notices of meetings to unit owners and board members, which generally requires interpretation and application of the requirements of statutes, administrative rules, the community association’s governing documents, and rule 1.090(a) and (e) of the Florida Rules of Civil Procedure;
4. To determine the votes required for the community association to take certain actions whenever interpretation and application of any or all of the following is required: the Florida Business Corpora[1122]*1122tion Act, Florida Not For Profit Corporation Act, Condominium Act, and the community association’s governing documents; or
5. To reply to the association’s question about the application of law to a matter being considered, and to advise an association that an action or course of action may not be authorized by statute, administrative rule, or the association’s governing documents.

The Standing Committee gave notice of the June 28,1995 hearing in accordance with rule 10-9.1(f) of The Rules Regulating the Florida Bar. Several individuals spoke at the hearing, and written testimony was also received. At a special meeting on November 3, 1995, the Standing Committee voted to issue the proposed opinion.

CAMs are licensed through the Department of Business and Professional Regulation’s (“BPR”) Bureau of Condominiums. Community association management is defined in section 468.431(2), Florida Statutes (1995):

“Community association management” means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: 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. A person who performs clerical or ministerial functions under the direct supervision and control of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part.

§ 468.431, Fla. Stat. (1995). CAMs are also governed by the Florida Administrative Code’s Standards of Professional Conduct. In order to be licensed, CAMs must have a general knowledge of condominium law and fulfill continuing education requirements.

The Standing Committee voted on several matters that it felt were purely ministerial in nature, and therefore did not constitute the unauthorized practice of law. There was no testimony in opposition, so the proposed advisory opinion reflects that these items do not constitute the unauthorized practice of law: completing Secretary of State form CR2E045 and Secretary of State Annual Corporation Report; and drafting certificates of assessments, first notices of date of election, second notices of date of election, ballots, written notices of annual meeting, annual meeting agendas, affidavits of mailing, notices of board meetings, and board meeting agendas.

After reviewing the oral and written testimony presented, the Standing Committee proposed answers to the remaining questions. It found that the following do constitute the unauthorized practice of law: completing BPR Form 33-032; 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 an action or course of action may not be authorized by law or rule.

The Standing Committee found that the following may or may not constitute the unauthorized practice of law, depending on the specific factual circumstances: modification of Form BPR 33-033, 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Goldberg v. MERRILL LYNCH CREDIT CORP.
35 So. 3d 905 (Supreme Court of Florida, 2010)
Cheney v. IPD ANALYTICS, LLC
583 F. Supp. 2d 108 (District of Columbia, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
681 So. 2d 1119, 21 Fla. L. Weekly Supp. 328, 1996 Fla. LEXIS 1243, 1996 WL 403726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-bar-re-advisory-opinion-fla-1996.