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In certain Florida HOA issues, nonbinding arbitration (NBA) is required before taking the matter to litigation. NBA allows a "qualified representative" (QR), to represent a homeowner: this person does not need to be a lawyer licensed to practice in Florida. Said QR does not need to be attorney.

Assume that Fred, a DC attorney, is Mary's "qualified representative" in Florida nonbonding arbitration. If Fred's service is Pro Bono, I would think that this is not UPL (I could very well be wrong). If Fred acts as a QR but charges a fee, is this UPL? What exactly is the litmus test for UPL?

IANAL: responses with hyperlinks to legal jargon ("mens rea", etc.) are appreciated. Thank you

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The exact definition of Unlicensed Practice of Law (UPL) varies from state to state, and is often rather vague. Florida code section 454.23 provides that:

Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself 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 or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree.

But that does not clearly define "practice of law," nor does this page on UPL from the Florida bar.

In The Florida Bar v. Sperry, 140 So. 2d 587, 591 (Fla. 1962), the court wrote:

... if the giving of advice and performance of 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. (Quoted in "SUMMARY OF UNLICENSED PRACTICE OF LAW CASES" (PDF from the Florida courts)

The "Summary" (linked just above) further says:

Although a codified definition does not exist, there is a large body of case law applying the Sperry test to determine whether a specific activity constitutes the unlicensed practice of law. Therefore, although one cannot go to one particular source such as a dictionary for a definition, in most instances whether an activity constitutes the unlicensed practice of law can be found in case law.

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An attorney admitted to the practice of law in a state other than Florida may not engage in the general practice of law in Florida or establish a law office in Florida. An attorney licensed to practice law in a state other than Florida may establish an interstate practice in Florida only if the attorney follows the guidelines of The Florida Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).

An attorney admitted to the practice of law in a state other than Florida may not appear in a Florida court as the representative of a party unless the attorney first seeks permission to appear pro hac vice [for a particular occasion] pursuant to Rule 2.510 of the Florida Rules of Judicial Administration. (It should be noted that this rule does not allow a resident of Florida to appear pro hac vice.) Rule 4-5.5 of the Rules Regulating the Florida Bar describes the legal services an out-of-state attorney can provide in Florida on a temporary basis.

The Summery does not mention NBA or HOA practice. As this is not a court appearance, and as according to the Question a non-lawyer may appear as a QR, it woulds seem that such an appearance does not constitute the practice of law, and thus an out-of-state lawyer would not be committing UPL by representing someone in a NBA proceeding.

It does not appear that charging a fee is an essential element of UPL in Florida (although it is in some states). Thus if Fred may represent Ma\ty as a QR pro bono he may still do so for a fee.

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    A shout out to Florida Bar v. Sperry. It was about Florida trying to require patent practitioners to be licensed attorneys. In Sperry, SCOTUS said that what patent agents do (I am one!) is the narrow practice of law but that the state can't regulate it since it was set up by the feds for a good reason. The reason is that very few lawyers have any technical/scientific background and inventors deserve help without going to D.C. Patent agents can practice UPL only in a very narrow scope of patent law. It is UPL (but allowed by Sperry) becasue the USPTO does not license us, it registers. Jun 15, 2021 at 15:09
  • In addition to the UPL rules in Florida, there is probably a rule on multi-jurisdictional practice in the Rules of Professional Conduct part 8 that discuss when lawyers licensed outside Florida can represent clients in Florida without having it constitute UPL.
    – ohwilleke
    Jun 16, 2021 at 0:11

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