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The information contained on this web site does not constitute legal advice. It is intended to provide general information and does not establish an attorney-client relationship.
Recipients of this information should not act upon it without consulting with legal counsel as individual situations and facts vary.
It should be pointed out that there are many conflicting opinions about the issues of estate-planning-related UPL - (Unauthorized Practice of Law) issues within the legal community itself. Surface comparisons of most UPL definitions from various jurisdictions would indicate that such kind of ambiguous law is mostly not reality and requires revisiting. For example, here are a few jurisdictional opinions/rulings to make the point:
A 1992 Florida Bar Advisory Opinion stated (in part) as follows:
Gathering the necessary information for a living trust is not (emphasis added) the practice of law and may be performed by nonlawyers...
The Florida Supreme Court issued criteria in their determination of what does and does not constitute the unlicensed practice of law, and how certain parallel issues may apply:
The (true) definition of the practice of law "must necessarily change (emphasis added) with the ever changing business (climate) and social order."
"The unauthorized practice of law and the practice of law by nonlawyers are not synonymous." Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1191-92 (Fla. 1978). (NOTE: In other words, the Florida Supreme Court ruled that just because a non-lawyer is actually “practicing law” by performing certain “legal” tasks or services, such activities do not necessarily constitute the “unauthorized” practice of law.)
“Non-lawyers are authorized (emphasis added) to practice law in the following instances… “provide, either orally or in writing, definitions… without advising whether or not a particular definition is applicable…”
It should be noted that financial advisors do not have to advise anyone as to the direct applicability or non-applicability of estate planning law for their clients. However, any advisor can certainly discuss all the issues and options with his client to the extent of that advisor’s experience and knowledge base. In other words, advisors can simply leave the ultimate applicability and suitability determinations up to the client’s legal counsel. A financial advisor does not have to (and must not) make those legal determinations to be helpful to a client establishing an estate plan . . . more