N.A.F.A. CLAIM TO THE SUPREME COURT
IN THE SUPREME COURT OF FLORIDA
BOARD OF GOVERNORS OF THE FLORIDA BAR
In Re:
Humphrey H. Pachecker d/b/a
NAFA, National Association for Foreign Attorneys, Corp.
“NAFA”
as Petitioners,
___________________________/
PETITION FOR REVIEW OF REGULATING RULES
COME NOW, the National Association for Foreign Attorneys (“NAFA”) and Humphrey H. Pachecker (“Petitioners”), and respectfully petition that this Honorable Supreme Court of the State of Florida, enter and order reviewing this Honorable Court’s April 25, 2002 Decision adopting new Rules related to Paralegals and Legal Assistants, and Enjoining and Restraining The Florida Bar in this cause, from Unconstitutionally administering and applying the rules regulating The Florida Bar, specifically Rule 10-2.1(a) (2) and Rule 10-2.1 (b), et al, as it relates to the violation of Petitioners’ Free Speech and Constitutional Rights, because these Rules are directed towards restricting the success of protected activities as the Teaching of NAFA Petitioners for Licensure in Florida as Paralegals and Legal Assistants, and as grounds therefore states as follows:
BACKGROUND HISTORY
1. Time is of the essence as The Florida Bar Unlicensed Practice of Law Department, Miami is attempting to begin enforcement of the new Rule as or before September 1st, 2002.
2. NAFA Petitioners is an Association/School mainly composed of individual International Law Graduates (U.S. Citizens, U.S. Residents, and Visitors), each of whom attended Law School abroad, and is now applying for Paralegal Licensure as an Independent Paralegal legal assistance provider, in the State of Florida.
3. NAFA Petitioners, received its Certificate of Exemption from the Florida Department of Education, State Board of Nonpublic Career Education in June, 2000 which allows NAFA to teach and train its members in the Paralegals’ studies and field.
4. The Board of Governors of The Florida Bar, pursuant to Rule 1-8.1, among other duties, is charged with the responsibility of enforcing the Rules of Discipline and also the Rules of Professional Conduct; and, shall act as an arm of the Supreme Court of Florida, for the purpose of seeking to prohibit the unlicensed practice of Law, in accordance with Chapter 10.
5. The Unlicensed Practice of Law Department-Miami, is a branch of The Florida Bar which operates under the directives of the Board of Governors of said Bar Association.
6. Rules 10-2.1(a)(2) & (b), sets new definitions to the terms ‘Paralegal’ or ‘Legal Assistant’, and who may use these words, and under what circumstances as of April 25, 2002.
7. The State of Florida Paralegal’s Occupational License and Immigration Services’ Occupational License, are Licenses required to the Nonlawyer in order to be permitted to offer legal related services, directly to the public due to the Consumers’ demand for low-cost Legal related services.
However, Florida Bar’s Lawyers are reluctant to encourage the regulation of Paralegals, Legal Assistants and legal technicians, because they do not wish to legitimize this activity (See President’s Page – The Florida Bar Journal, September 1992).
8. Venue of this Petition is in any County, Florida by virtue of the fact that these Rules affect the principal business and Constitutional right of Petitioners who have offices in Florida, and it is also where the Supreme Court of Florida adopted the new Rules related to Paralegals and Legal Assistants.
9. This Honorable Supreme Court has Jurisdiction over this matter, pursuant to Rules regulating The Florida Bar, Rule 1-8.1, 1-8.2, and Rule 10, to the Provisions of Florida Statute SS 86.011, Florida Declaratory Judgment Act, Florida Rules of Civil Procedure SS 1.610, under the provisions of the Fourteenth (14th) Amendment to the Constitution of the United States of America, and Florida Constitution granting NAFA’s Petitioners Civil Right, Equal Protection and Due Process of Law.
10. The NAFA Petitioners are not required to exhaust Administrative Remedies through The Florida Bar, because of the Non-member exception which exists and which authorizes this Honorable Supreme Court to obtain Jurisdiction to enjoin enforcement of a facially Unconstitutional Action by The Florida Bar, to wit: The Unconstitutional administration and applying the Rules regulating The Florida Bar, Rules 10-2.1 (a)(2) and Rule 10-2.1(b) (See Janco v. State of Florida Board of Accountancy, 390 So. 2nd. 329 [Fla. 1980].)
Thus, the Petitioner may circumvent the Administrative Remedies Exhaustion Rule in this instance.
THERE IS NO REGULATION OF PARALEGALS.
THE FLORIDA BAR HAS NO PARALEGAL LICENSURE EXAMINATION.
11. The Florida Bar has no regulation of Paralegals, Legal Assistants, and/or Legal technicians; there is no uniformity with respect to the education, training or experience of the people providing legal related services to the public.
12. The Florida Bar cannot eradicate by enforcement the Unlicensed Practice of Law, by controlling the “name” Paralegal, Legal Assistant, and who has the “right” to use the title ‘Paralegal’, ‘Legal Assistant’, or any other “similar” names; other approaches are necessary.
13. The Board of Governors of The Florida Bar reported on June 24, 1992, that independent Paralegals have increased, and recognized that there is a definite Consumers’ demand for low-cost Legal services, which the Legal profession is not fully meeting. Today, the same is true.
The Florida Bar has the legal authority to prevent the unlicensed practice of Law, but lacks of efficient tactical resources. The protection of the Public, the protection of the Legal System and the protection of the Constitutional and Equality rights demand better forms of Regulation; but the mere control of who use the title ‘Paralegal’, ‘Legal Assistant’, or other similar terms in providing legal related services or legal forms’ preparation to the Public is not the solution, rather is more like a “High-stakes” test which is one that “impinge on the rights” and life chances of individuals and, thus are “inherently disputable.”
14. On Thomas D. Morgan and Ronald D. Rotunda’s Professional Responsibility – Problems and Materials (5th edition – University Casebook Series / Westbury, New York: The Foundation Press, Inc. 1991), it is explained that « An Attorney must be consulted whenever “professional legal judgment is required”. To the bewildered reader looking for guidance, the Code suggests only that the “essence” of professional legal judgment is the “educated ability to relate the general body and philosophy of Law to a specific legal problem.” Indeed, not only does this latter formulation fails to accommodate the public interests involved, but the ambiguity itself creates a “chilling effect” on potential competitors because of the penalty(ies) associated with overstepping the lines.» (Unauthorized Practice of Law is, in some states, a criminal contempt of court. Meanwhile, in some others is a misdemeanor.)
« Because the ambiguity tends to expand the scope of the lawyers’ monopoly, it seems fair to view it as further confirmation of the fact that the prohibition of unauthorized practice is primarily for the benefit of lawyers. »
THERE EXISTS “UNCONSTITUTIONAL INEQUALITY” BETWEEN THE DEFINITION OF ‘Paralegal’ and ‘Legal Assistant’, AND THE NONLAWYER AND NONATTORNEY, PRIOR AND AFTER APRIL 25, 2002.
15. The new Rule 10-2.1 (b) makes provision for those Paralegals who work under the supervision of a member of The Florida Bar only, leaving out other United States’ attorneys working in Florida under Federal Laws; as for example Immigration Law issues pursuant to Regulation permitting Appearance – 8 CFR SS 292.
16. The new Rule 10-2.1 (a)(2), defines that usage of title Paralegal, Legal Assistant, or other similar term shall constitute the unlicensed practice of Law, of any person who does not work under the supervision of a Florida Bar attorney, leaving without any definition and cancelling all possibilities of offering related legal services directly to the public by a nonlawyer, because there is no Occupational License in the State of Florida for nonlawyers –only for Paralegals.
17. There are only two Occupational Licenses from the State of Florida, Miami-Dade County for independent legal services providers: Paralegal # 212 and Immigration Services # 213. There is no provision, nor any other License for Nonlawyer or similar title.
This leaves the independent Paralegal or Legal Assistant out of business.
18. The American Bar Association’s Consumer Guide book, “YOU AND THE LAW”, advises the Public that in relation on the obligation of hiring a Lawyer, this is «Not necessarily. In some specialized situations, such as bringing a complaint before a government agency, nonlawyers or paralegals may be qualified to represent you.» (Please see When and how to use a Lawyer, page 14.)
19. In fact, the ABA Standing Committee on Lawyers’ Responsibility for Client Protection, disseminated a Survey on 33 Federal Administrative Agencies, that permit Nonlawyer practice (other than self-representation), on adversarial and non-adversarial representation.
The conclusion of such Survey, was that only about twenty percent (20%), require Nonlawyers to register with the Agency before permitting them to practice.
Registration procedures may range from simply listing Nonlawyers’ names, to more formalized certifying or Licensing procedures, which may include Testing and Character reviews. No Agencies indicated that they would discipline Nonlawyers different from Lawyers (Please see “ABA Survey of Non-lawyer practice before Federal Administrative Agencies – February 1985”.)
20. There are three ways to become a Paralegal: By experience, by training and by fiat.
The Paralegal works under the supervision of an Attorney; the Paralegal does not practice Law. According to William P. Statsky’s Paralegal Ethics and Regulations (2nd edition - West Publishing Company, 1993), there are problems with each of these components:
21. There are some Attorneys, who are classified as Paralegals. As an example, there are attorneys working in the United States, who are licensed in a foreign country. Some States within the Union, consider such Attorneys to be Paralegals. The same may be true for Attorneys working in one State, but licensed to practice in another State.
Occasionally, a suspended or disbarred Attorney will try to continue working in Law as a Paralegal. Under certain circumstances, such work is both ethical and legal.
22. There is nothing included in the Rules, that prevents an Attorney from applying for and obtaining a Paralegal job. This is not uncommon in a tight market, where there are many unemployed Attorneys looking for work.
23. There are problems -and we learn very little from them, when we are told that a Paralegal has legal knowledge and skills, and is a person qualified by education, training, or work experience. So do Attorneys, Law Clerks, Legal secretaries, Investigators, some Real Estate brokers, bankers, Police officers, etcetera.
24. Not all Paralegals are/will be working under the supervision of an Attorney member of the Bar. Many Paralegals working for the Government and Federal agencies, are not supervised by Attorneys.
There are also special laws and regulations that permit Non-attorneys to engage in legal work independent of Attorneys. Generally, most Paralegals work in private Law offices under the supervision of an Attorney.
Yet there are many others who are otherwise situated.
25. It is completely inaccurate to say, that Paralegals cannot practice Law. The more appropriate statement of the principle is that Paralegals cannot engage in the unauthorized practice of Law. The existence of rules on the Unauthorized
Practice of Law governing Paralegals, presupposes the existence of an authorized practice of Law by Paralegals. It is true that the spectrum of authorized practice for Paralegals is quite narrow, but in fact it does exist. In our society, the practice of Law is not the exclusive domain of the Attorney.
26. In Law, the presence of a definition usually prompts a search for a definition of the definition. Paralegal definitions sometimes contain words and phrases such as supervision, substantive legal work, practice of Law, delegated assistance, etcetera. We must be concerned about what these words and phrases mean, they must be defined.
Once made, these definitions will then probably require clarifications that are, in effect, further definitions leading to other questions, as ‘How can we define the activities, if we cannot define the name?’; ‘How can we control the name, if we cannot control the activities?’; and so on.
UNCONSTITUTIONAL COMPARISON:
THE FLORIDA BAR STANDARDS FOR PARALEGALS v.
THE “NATIONAL STANDARDS”
(Jackie Robinson and Old Negro Baseball League)
27. NAFA Petitioners reave and reallege Paragraphs (1.) through (26.) above, and by reference incorporate them herein and would further allege as follows:
28. The “owe-to-be” Florida Bar License Examination for Paralegals.
28.a Equals the Old “Negro” Baseball League.
28.b Average ability in Negro League, was in excess to White League (To wit: NAFA Petitioners’ Graduates, have extensive legal experience v. unregulated Paralegals, Legal Assistants.)
28.c Average necessary performance rate, i.e.: Average good player, was at approximately 70% performance (To wit: The “Owe-to-be” Florida Bar “Owe-to-be” License Examination for Paralegals’ grading v. The National Standards, i.e.: Paralegals, Legal Assistants –or NONE.)
28.d Uneven playing field (Disadvantage), i.e.: Old Negro League had poor conditions, poor equipment, poor playing fields, and poor lighting (To wit: The “Owe-to-be” Florida Bar License Examination for Paralegals design is non-compliant with “National Standards” – There is none.)
29. The current (NONE) Florida Bar License Examination for Paralegals.
29.a Equals the old “White Only” league.
29.b Average ability in the “White Only” league, did not exceed average ability as of the Negro League (To wit: Unregulated Paralegals, Legal Assistants do not have any minimum standard in regard to studies and experience because lack of regulation, as do the NAFA Petitioners’ Graduates.)
29.c Average necessary performance rate, i.e.: Average good player, was at approximately 55% performance (To wit: National Standards “owe to be”
The Florida Bar Examination for Paralegal grading v. The Current (None) The Florida Bar License Examination for Paralegals… ____%?)
29.d Uneven playing field (Advantage), i.e.: The “White Only” league had better conditions, better equipment, better playing fields and lighting (To wit: The “Owe-to-be” Florida Bar License Examination for Paralegals design, shall be in complaint with the “National Standards”.)
30. The Board of Governors of The Florida Bar, and its Unlicensed Practice of Law Departments.
30.a Equal the Old Baseball Commissioner, and the Commissioners Department.
30.b Created limitations such that, it did not allow Negro players to perform within “Equal National Standards.”
30.c Created limitations such that, it forced Negro players to perform in poor playing conditions when the passing performance grade was at pick, to wit: Non-compliant and contrary to “National Standards.”
31. CONSTITUTIONAL EQUALITY
31.a Commissioner of Baseball was ordered to grant equal Rights to Negro players, to perform within “Equal National Standards” (To wit: Make The “Owe-to-be” Florida Bar License Examination for Paralegals, compliant with “National Standards”, a Mandatory Regulation.)
31.b Commissioner was ordered to even/equal the playing fields and conditions for all players, Whites and Negros alike; hence, Jackie Robinson (To wit: Unless the entire system of formal education is a sham, the public must be protected from unregulated Paralegals, Legal Assistants and other similar technicians providing legal services, testing and regulations with the “Equal National Standards”.)
31.c Negro players had the right to perform within the White League National Standards, when they excelled at 55% or more (To wit: “Equal National Standards” in testing.)
31.d Negros performance improved with better playing conditions and even playing fields, bringing the game of Baseball to today’s higher performance level; hence, Ken Griffey Jr. (To wit: “Equal National Standards” in regulating, testing, and grading to all individuals in pursuit of a livelihood for self and their families.)
32. REGULATION OF THE PARALEGAL PROFESSION.
32.a Both entry into the legal profession and the conduct of Lawyers, once admitted, are regulated by the highest Court of each State. Although in a few States, the Supreme Court have ceded limited authority over Lawyers to the State Legislature. In most States, the Bar governance continues to be an exclusive province of the Supreme Court.
32.b To carry out their authority, the Courts have established Admission and Disciplinary machinery. Most Jurisdictions require that Lawyers join an official Bar organization, which is then called an “Integrated Bar.”
32.c In States with no Integrated Bar system, the Courts often turn to the voluntary Bar for assistance in staffing the Disciplinary system. In both cases, the Courts often fund the Disciplinary system by taxing Lawyers in the form of mandatory Dues and Fees.
33. The Petitioner NAFA, National Association for Foreign Attorneys, respectfully offers to this Honorable Court its voluntary services to act as a Voluntary Bar for assistance in Staffing the Disciplinary system, regulating and controlling the Paralegal Profession in Florida.
WHEREFORE, the NAFA Petitioners pray that this Honorable Court review the new Rules related to Paralegals and Legal Assistants adopted by this Honorable Court on April 25, 2002, and to order the Board of Governors of The Florida Bar and its Committee to:
(A) To consider NAFA’s recommendation to implement a new form of regulation for Paralegals, Legal Assistants and Legal technicians, legitimizing its activities for the protection of Public; once implemented, to apply the same “National Standards for Educational and Regulational Testing”, to the “owe to be” Florida Bar License Examination for Paralegals, such that said Examination and Regulation, to be similar and equal to others (1) in Length, Contents and Minimum Passing Score threshold of approximately 55%, pursuant to said “National Standards”,
(B) That the Board of Governors of The Florida Bar, be ordered that pursuant to their tradition of to protect and serve the public and, addressing this issue from that obligation, recognize that regulation and examination of Paralegals, Legal Assistants and Legal Technicians is the only way to do both, to protect and to serve with all the Constitutional Respect and with all the Constitutional Restitution than this Nation, the United States of America, have historically treated Black citizens of this Country.
Dated _______________________
NAFA, National Association for Foreign
Attorneys, Corp.
Petitioner
11890 SW. 8th Street, Suite 500
Miami, Florida 33184
Phone (305) 513-9949
By ______________________________
Humphrey H. Pachecker
