By Scott Gross, ESQ./ Published Sept 2015
In a perfect world, community association managers would be tasked with maintaining the affairs of the communities they oversee without the possibility of violating any established laws or statutes. In reality, however, managers often find themselves plodding through the gray area somewhere between licensed CAM and association attorney. The Florida Supreme Court, in a decision released in May 2015, has provided some guidance to help CAMs navigate through these precarious situations. This article provides a summary of the Court’s decision.
In its opinion, the Court continues to make an important distinction between activities that are purely ministerial in nature—that is, activities that do not involve the exercise of judgment or discretion—and those that require application or interpretation of law to a specific set of facts. Activities which are merely ministerial do not constitute the unauthorized practice of law. Conversely, activities which require the interpretation of statutes, administrative rules, community association governing documents, or rules of civil procedure do constitute the practice of law and are prohibited.
Specifically, the Court found the following activities were purely ministerial in nature, and thus, do not constitute the unauthorized practice of law:
Conversely, the Court specifically found the following activities do constitute the unauthorized practice of law:
However, as everyone knows, nothing in the law is black and white. The Court found that the following activities may or may not constitute the unauthorized practice of law, depending on the specific, factual circumstances:
With respect to the gray area issues above, the following activities were found to be ministerial in nature, and thus, are not considered the unlicensed practice of law:
However, complicated modifications to Form BPR 33-033 and drafting of an actual limited proxy form or questions in addition to those on the preprinted form require that a CAM consult with a licensed attorney. Similarly, the Court found that although CAMs may be able to draft the documents required to exercise a community association’s right of approval or first refusal to a sale or lease, they cannot advise the association as to the legal consequences of taking a certain course of action. With respect to review of title instruments, the Court felt that searching the public records to identify past and present owners of property—simply for the purpose of making a list of all record owners—was ministerial in nature and was not the unlicensed practice of law. However, if a CAM uses this list to make the legal determination of who should receive a pre-lien letter, this would constitute the unlicensed practice of law. The Court determined that if the preparation of a document requires the exercise of discretion or the interpretation of statutes or legal documents, a CAM may not prepare the document.
While CAMs may be licensed through the DBPR and are subject to Florida Administrative Code’s Standards of Professional Conduct, CAMs must also be cognizant of the Rules Regulating the Florida Bar. CAMs found to be in violation of the Rules by engaging in the unauthorized practice of law may face a monetary penalty or, in extreme cases, may be found in indirect criminal contempt and face imprisonment for up to five months. At the end of the day, if a CAM is unsure whether the considered activity is, or is not, the practice of law, consult with a licensed Florida attorney who can help you avoid a potentially costly situation.
Scott Gross, Partner
Angius & Terry LLP
Scott Gross is a partner in the Florida office of Angius & Terry LLP. He focuses his practice on representing homeowners and homeowner associations in construction defect litigation.Gross graduated from the University of Florida with a Bachelor of Arts Degree in Political Science and received his Juris Doctorate from the Shepard Broad Law Center at Nova Southeastern University. For more information, call (727) 474-0200 or visit www.angius-terry.com.