Opinion
No. 48042.
February 16, 1978.
Lawrence J. Phalin, Bar Counsel, Orlando, for The Florida Bar, petitioner.
James W. Markel of Graham, Markel Scott, Orlando, for respondent.
BY THE COURT.
The Florida Bar petitioned this Court to enjoin Henry L. Turner, III from the unauthorized practice of law, alleging that between 1967 and 1973 while Turner was a licensed life insurance agent and Chartered Life Underwriter, he gave legal advice in various ways to a number of doctors and medical groups. We appointed a referee to conduct hearings, to determine whether Turner had engaged in the unauthorized practice of law, and to report his findings and recommendations to us. In lieu of a hearing the parties entered into a stipulation of facts and applicable law, which the referee accepted. He then recommended to us that Turner be enjoined from the unauthorized practice of law.
Having reviewed the stipulation and the referee's report we conclude that Turner had between 1967 and 1973 engaged in the practice of law in his capacity as an insurance agent, while not a member of The Florida Bar, and we accept the referee's recommendation. Accordingly, Turner is permanently enjoined from the unauthorized practice of law and prohibited, among other things, from evaluating and preparing legal forms and instruments, supplying legal forms with advice or instructions as to their use, and drafting legal instruments adapted to particular circumstances, such as corporate charters, by-laws, pension plans, employment agreements, health plans and trust agreements. Turner is further ordered to pay costs which were properly incurred by the bar.
As a matter of guidance to the bar and other professionals, we attach as an appendix to this opinion the conclusions of law to which both parties stipulated and which we approve.
It is so ordered.
OVERTON, C.J., and BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.
ADKINS and HATCHETT, JJ., dissent.
without the rendering of legal advice or legal services,
APPENDIX "CONCLUSIONS OF LAW 1. That the public interest demands competent, quality advice and services with respect to planning, designing, drafting, and implementing corporate professional associations and pension plans. 2. That the fields of pension planning (or `employee benefit' planning) and corporate planning involve the interpretation of the Internal Revenue Code, revenue rulings, statutory law, court decisions, and other regulations having the force and effect of law. 3. That the establishment of any type of pension or welfare plan (as defined in the Internal Revenue Code) involves not only the rendering of legal advise [sic] and services, but also, in many instances, actuarial, accounting, economic, insurance, and investment advice in reference to the designing, drafting and adoption of a pension plan, does not constitute the practice of law. 4. That a general discussion with an employer of various types of pension or welfare plans, which employees should be covered as a matter of policy, the cost of the benefits for employees, the amounts of contributions to the plan, the funding of the plan, and other factors of a strictly financial and economic nature are proper for laymen, provided that no specific advice is given with respect to particular persons, particular plans, and their eligibility under the tax laws. 5. That the discussion by a person unlicensed to practice law with another person of general principles of law, without applying those principles to the particular factual situation of that person does not constitute specific legal advice or the practice of law. 6. That the application of general rules of law to particular sets of facts as they relate to particular persons or legal entities constitutes the practice of law. 7. That the evaluation of the legal effect of a particular legal instrument, e.g., pension plan, pension trust agreement or corporate charter, as it would apply to a particular individual or legal entity, coupled with advice, either directly or indirectly, as to the legal consequences of such legal instrument, constitutes legal advice and the practice of law. 8. That the supplying of legal forms to others coupled with instruction/advice and/or representations as to how said forms should be filled out or the quality and effect of such forms as applied to the specific situation of others constitute legal advice and the practice of law. The fact that the supplier adviser urges another to consult an attorney does not make the advice any less `legal advice' or his services any less `legal services.' 9. That the making of changes in legal forms to fit the specific factual needs of others constitutes the rendition of legal services and the practice of law. 10. That complex tax problems exist in the planning and designing of pension plans and corporate professional associations. 11. That complex tax problems exist in considering what type of pension plan best suits the needs and desires of an individual employer and what type of pension plan will qualify for benefits under federal tax laws. 12. That potential and actual conflicts of interest exist where a lay person or entity not licensed to practice law attempts to give legal advice and/or provide legal services to a prospective client to whom he is attempting to sell a product, e.g., life insurance. 13. That a pension plan and a pension trust agreement drafted in connection therewith are, in themselves, legal instruments which define and determine the legal rights and obligations of both an employer and employee. The drafting of such instruments must involve the careful consideration of the rights and obligations which emanate under the Internal Revenue Code and related laws, as well as contract, trust and property laws. 14. That a properly drafted corporate charter and by-laws are important contractual documents/legal instruments, the preparation of which constitute the practice of law. 15. That the design and preparation of a pension plan for another embodying data gathered from said person constitutes the practice of law. 16. That the submission of a pension plan and/or corporate professional association documentation to another for adoption and/or implementation coupled with the representation, either directly or indirectly, that said legal documents are suitable to the persons' particular circumstances, needs, and objectives constitutes legal advice and the practice of law. 17. That the advising of another that a particular pension plan qualifies for tax benefits under the Internal Revenue Code, revenue rulings, and court decisions constitutes legal advice and the practice of law. 18. That the rendering of an opinion or advice, either directly or indirectly, regarding the consequences or effects of the tax laws or other laws on the pension plan and/or corporate professional association of another constitute legal advice and the practice of law. 19. That the interpretation of provisions of a pension plan and/or legal documentation encompassing a corporate professional association involve legal analysis and judgment. Any advice or representations in reference to any such interpretation would necessarily involve legal advice/representation and the practice of law. 20. That the preparation of the following legal documents in connection with the formation of a corporate professional association constitutes the practice of law: (1) Articles of Incorporation, (2) By-Laws, (3) Minute Book entries, and (4) Assignments of Lease to professional corporation. 21. That the preparation of the following legal documents in connection with the formation of a pension plan (employee benefit plan) constitutes the practice of law: (1) The Plan, (2) Employment Agreement with Professional Corporation, (3) Health Plan, and (4) Trust Agreement."