Article Courtesy of  The Current 

By Gray Rohrer

Published November 16, 2013  

A group representing homeowners’ association managers is fighting with The Florida Bar over its attempt to declare some of their actions the unlicensed practice of law.
  
There are more than 18,500 individual community association managers, or CAMs in the state, working for more than 1,600 firms. CAMs work for homeowners’ associations, preparing budgets, hiring maintenance workers and often preparing contracts and other legal papers.

Last year, the Real Property, Probate & Trust Law Section of The Florida Bar petitioned its Standing Committee on the Unlicensed Practice of Law for an advisory opinion holding some CAM practices could only be conducted by lawyers.

The committee issued such an opinion in May, declaring any activity requiring an interpretation of statute, legal analysis or description of real property to be the unlicensed practice of law if conducted by someone who is not a lawyer. The opinion was submitted to the Florida Supreme Court for approval and is pending a decision.

If approved as written, HOAs would need to hire lawyers to prepare certificates of assessments once foreclosure proceedings have begun; draft amendments to HOA bylaws; determine how many HOA votes are needed to establish a quorum or pass a motion; and prepare contracts and construction liens.

Mark Anderson, lobbyist for Chief Executive Officers of Management Companies, a CAM trade group, said the Bar is pushing through new rules for association managers with little input from them.

“It was a bad process that was leading to a bad policy, which we believed also encompassed public policymaking that had much more to do with the creation of a law than the practice of it, in order to create a captive market that only attorneys would be able to serve,” Anderson said.

But Lori Holcomb, Unlicensed Practice of Law counsel for The Florida Bar, counters that the advisory opinion largely reiterates a previous opinion issued in 1996, and CAMs were allowed to present at all but one Florida Bar committee meeting on the issue.

“I was very surprised when they made that statement,” Holcomb said. “I do believe they were heard.”

The 1996 opinion stated CAMs could perform “ministerial” duties for HOAs but could not provide legal counsel, including the interpretations of statutes.

The Department of Business and Professional Regulation, which oversees the management agencies, wrote a letter to The Florida Bar last year expressing concern that a new advisory opinion declaring more CAM activities as the unlicensed practice of law would make their regulation confusing, since CAMs often work with lawyers in the course of their duties.

Should the new rules take effect, CAMs drafting legal documents or conducting any of the activities deemed the unlicensed practice of law would be guilty of a third-degree felony, Anderson said. Furthermore, the attorneys’ fees for the same help for HOAs is more expensive than CAMs’ fees, and the increased cost would likely trickle down to HOA fees, he said.

Pending a decision from the Supreme Court, the two sides are taking their squabble to the Legislature. The House Civil Justice Subcommittee discussed the issue this week, and Anderson said he’s hopeful that a bill will be drafted, if necessary, to prevent The Florida Bar from banning CAM functions by nonlawyers.