State v. Foster

674 So. 2d 747 (Fla. 1996)

The State of Florida appeals from orders issued in separate cases (1) dismissing charges against Scott E. Foster, Jr., and his wife, Martha J. Foster, purportedly arising from the unauthorized practice of law and (2) finding [the Florida UPL statute] vague and violative of federal constitutional protections or unconstitutional in its application to the appellees. . . . Mr. Foster was charged with four counts of unauthorized practice of law for his participation in four depositions by questioning four witnesses in two different cases. . . . [T]he state likewise charged Mrs. Foster for her participation in one deposition by questioning a witness. The applicable statute provides: Any person not licensed or otherwise authorized by the Supreme Court of Florida who shall practice law or assume or hold himself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he is qualified, or recognized as qualified, to act as a lawyer in this state, and any person entitled to practice who shall violate any provisions of this chapter shall be guilty of a misdemeanor of the first degree. . . . Neither of the appellees disputes the fact that each participated in the respective depositions by questioning one or more witnesses. The Fosters are paralegals who own a business that performs paralegal functions. Neither one is a licensed attorney. . . . The first issue to be resolved is whether taking a deposition constitutes the practice of law. . . . The Supreme Court of Florida considered an analogous question in Florida Bar v. Riccardi, 304 So. 2d 444 (Fla. 1974). . . . The court held that Mr. Riccardi's conduct constituted the unauthorized practice of law. . . . [W]e agree that appellee's questioning of witnesses in depositions likewise constituted the unauthorized practice of law in violation of [the Florida statute]. The second issue is whether the lower courts correctly found the statute to be unconstitutionally vague. . . . The Supreme Court of Arizona has described the practice of law as follows: ''We believe it sufficient to state that those acts, whether performed in court or in the law office, which lawyers customarily have carried on from day to day through the centuries must constitute 'the practice of law.' '' [Citation omitted.] . . . [T]he definition of the practice of law in Florida is not confined to the language of [the statute], but rather is shaped by decisional law and court rules as well as common understanding and practices. . . . The Supreme Court of Florida has defined various acts as constituting the practice of law, including ''appearing in Court or in proceedings which are part of the judicial process,'' [citation omitted] and, specifically, active participation in depositions, the conduct for which appellees were charged. Riccardi, 304 So. 2d at 445. . . . The appellees have not pointed out, nor have we found, any instance where [the statute] has been found unconstitutional on any of the grounds argued at trial or set forth on appeal. We note that foreign courts that have reviewed comparable ''unlicensed practice of law'' provisions consistently have found no unconstitutional vagueness. [Citations omitted.] . . . In supporting its ruling . . . , the trial court noted the Supreme Court of Florida's statement in the Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978) that ''it is somewhat difficult to define exactly what constitutes the practice of law in all instances.'' In its very thorough opinion, the trial court reasoned that, if Florida's highest court cannot ''define exactly'' the practice of law, then the statute addressing the unauthorized practice of law must necessarily be unconstitutionally vague. We respectfully disagree, finding that the quoted language in Brumbaugh must be considered within the factual context of that case. . . . We agree that ''any attempt to formulate a lasting, all encompassing definition of 'practice of law' is doomed to failure 'for the reasons that under our system of jurisprudence such practice must necessarily change with the ever changing business and social order.' '' Id. at 1191-92. . . . The quoted comment was not intended, and should not be construed, to suggest that the practice of law cannot be defined or that an attempt to interpret [the Florida statute] must involve guesswork and chance. Were we to adopt the appellees' suggestion that . . . renders a statute void for vagueness, the State would be effectively precluded from establishing minimum qualifications for practice in the regulated and licensed professions and occupations. . . . We think that in 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 such advice and performance of such services affect[s] 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, 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. State ex rel. The Florida Bar v. Sperry, 140 So. 2d 587 (Fla. 1962). . . . A deposition is an important, formal, recorded proceeding in which lawyers must observe the Florida rules of court and must rely on their training and skills to question witnesses effectively. The activities and services involved . . . often implicate ethical questions and strategic considerations of utmost importance. The effectiveness of a person deposing a witness can have a significant impact on whether objectionable information is identified and addressed or waived, whether a case is made, and how the evidence therefore is used in any subsequent proceeding Depositions are transcribed by a court reporter for possible use later in court. . . . We conclude that, lacking adequate legal training, a non attorney participating in the examination of a witness poses . . . dangers of ''incompetent, unethical, or irresponsible representation.'' [Citations omitted.] The third question is whether [the Florida statute], although facially constitutional, is unconstitutional in its application to the appellees' particular conduct. . . . [W]e decline to apply the over breadth doctrine to the instant case, where the appellees' active participation in depositions does not lie at the fringe of conduct constituting the practice of law. . . . Reversed. . . .

Questions about the Case

1. What do you think of the language in the Arizona case cited in this case? Does it give notice to the public about what functions fall under the Florida statute?

2. How persuasive is the appellees' argument that if the court cannot define the practice of law it is necessarily vague?

3. Is a definition in a court opinion sufficient to give notice to non lawyers who are involved in providing legal services? How might such persons find out about the rule?

4. Did you find the Sperry case formulation of the practice of law useful? How might you break down the long sentence cited here into more useful components?