Florida Bar v. Brumbaugh, 48803

CourtUnited States State Supreme Court of Florida
Citation355 So.2d 1186
Docket NumberNo. 48803,48803
PartiesTHE FLORIDA BAR, Petitioner, v. Marilyn R. BRUMBAUGH, Respondent.
Decision Date10 January 1978

R. Layton Mank, Chairman, Standing Unauthorized Practice of Law Committee, Miami, Richard C. McFarlain, Asst. Director-Legal, Tallahassee, Young Joe Simmons, Counsel, Ocala and William B. Wiley and John A. Weiss, Asst. Staff Counsels, Tallahassee, for The Florida Bar, petitioner.

Marilyn R. Brumbaugh, in pro. per.


The Florida Bar has filed a petition charging Marilyn Brumbaugh with engaging in the unauthorized practice of law, and seeking a permanent injunction prohibiting her from further engaging in these allegedly unlawful acts. We have jurisdiction under our constitutional authority to adopt rules for the practice and procedure in all the courts of this state. Article V, Section 2(a), Florida Constitution (1968). We now issue an injunction, delineating in this opinion those acts of respondent which we deem to constitute the unauthorized practice of law, and ordering her to stop such activities.

Respondent, Marilyn Brumbaugh, is not and has never been a member of the Florida Bar, and is, therefore, not licensed to practice law within this state. She has advertised in various local newspapers as "Marilyn's Secretarial Service" offering to perform typing services for "Do-It-Yourself" divorces, wills, resumes, and bankruptcies. The Florida Bar charges that she performed unauthorized legal services by preparing for her customers those legal documents necessary in an uncontested dissolution of marriage proceeding and by advising her customers as to the costs involved and the procedures which should be followed in order to obtain a dissolution of marriage. For this service, Ms. Brumbaugh charges a fee of $50.

Of course, we must determine whether the Florida Bar has presented sufficient evidence in the record before us to prove that respondent has engaged in the unauthorized practice of law. But, in cases such as this, the Florida Supreme Court is not confined to act solely in its judicial capacity. In addition, it acts in its administrative capacity as chief policy maker, regulating the administration of the court system and supervising all persons who are engaged in rendering legal advice to members of the general public. Such authority carries with it the responsibility to perform this task in a way responsive to the needs and desires of our citizens. This principle has long been our goal. In State v. Sperry, 140 So.2d 587, 595 (Fla.1962), we noted:

The reason for prohibiting the practice of law by those who have not been examined and found qualified to practice is frequently misunderstood. It is not done to aid or protect the members of the legal profession either in creating or maintaining a monopoly or closed shop. It is done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe.

The Florida Bar as an agent of this Court, plays a large role in the enforcement of court policies and rules and has been active in regulating and disciplining unethical conduct by its members. Because of the natural tendency of all professions to act in their own self interest, however, this Court must closely scrutinize all regulations tending to limit competition in the delivery of legal services to the public, and determine whether or not such regulations are truly in the public interest. Indeed, the active role of state supreme courts in the regulation of the practice of law (when such regulation is subject to pointed reexamination by the state court as policy maker) is accorded great deference and exemption from federal interference under the Sherman Act. Bates v. State Bar of Arizona, --- U.S. ----, 97 S.Ct. 2691, 2698, 53 L.Ed.2d 810 (1977).

The United States Supreme Court has recently decided issues which may drastically change the practice of law throughout the country, especially with regards to advertising and price competition among attorneys. Bates v. State Bar of Arizona, supra; Goldfarb, et al. v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). In addition, the Supreme Court has affirmed the fundamental constitutional right of all persons to represent themselves in court proceedings, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the Supreme Court emphasized that an attorney is merely an assistant who helps a citizen protect his legal rights and present his case to the courts. A person should not be forced to have an attorney represent his legal interests if he does not consent to such representation. It is imperative for us to analyze these cases and determine how their holdings and the policies behind them affect our regulation of the legal profession in this state.

With regard to the charges made against Marilyn Brumbaugh, this Court appointed a referee to receive evidence and to make findings of fact, conclusions of law, and recommendations as to the disposition of the case. The referee found that respondent, under the guise of a "secretarial" or "typing" service prepares, for a fee, all papers deemed by her to be needed for the pleading, filing, and securing of a dissolution of marriage, as well as detailed instructions as to how the suit should be filed, notice served, hearings set, trial conducted, and the final decree secured. The referee also found that in one instance, respondent prepared a quit claim deed in reference to the marital property of the parties. The referee determined that respondent's contention that she merely operates a typing service is rebutted by numerous facts in evidence. Ms. Brumbaugh has no blank forms either to sell or to fill out. Rather, she types up the documents for her customers after they have asked her to prepare a petition or an entire set of dissolution of marriage papers. Prior to typing up the papers, respondent asks her customers whether custody, child support, or alimony is involved. Respondent has four sets of dissolution of marriage papers, and she chooses which set is appropriate for the particular customer. She then types out those papers, filling in the blank spaces with the appropriate information. Respondent instructs her customers how the papers are to be signed, where they are to be filed, and how the customer should arrange for a final hearing.

Marilyn Brumbaugh, who is representing herself in proceedings before this Court, has made various objections to the procedure and findings of fact of the referee. Respondent alleges that the referee has an inherent conflict of interest because he is a lawyer and a member of The Florida Bar. She asserts that "all lawyers have a property interest in this case, because they have been making money, running typing services, without proper licenses." She further alleges that the referee did not provide her with a proper hearing, that he threw her in jail for pleading the Fifth Amendment, and denied her her constitutional right to a jury trial. Respondent argues that she has never held herself out as an attorney, and has never professed to have legal skills. She does not give advice, but acts merely as a secretary. She is a licensed counselor, and asserts the right to talk to people and to let her customers make decisions for themselves. Finally, respondent contends that her civil rights have been violated, and that she has been denied the right to make an honest living.

This case does not arise out of a complaint by any of Ms. Brumbaugh's customers as to improper advice or unethical conduct. It has been initiated by members of The Florida Bar who believe her to be practicing law without a license. The evidence introduced at the hearing below shows that none of respondent's customers believed that she was an attorney, or that she was acting as an attorney in their behalf. Respondent's advertisements clearly addressed themselves to people who wish to do their own divorces. These customers knew that they had to have "some type of papers" to file in order to obtain their dissolution of marriage. Respondent never handled contested divorces. During the past two years respondent has assisted several hundred customers in obtaining their own divorces. The record shows that while some of her customers told respondent exactly what they wanted, generally respondent would ask her customers for the necessary information needed to fill out the divorce papers, such as the names and addresses of the parties, the place and duration of residency in this state, whether there was any property settlement to be resolved, or any determination as to custody and support of children. Finally, each petition contained the bare allegation that the marriage was irretrievably broken. Respondent would then inform the parties as to which documents needed to be signed, by whom, how many copies of each paper should be filed, where and when they should be filed, the costs involved, and what witness testimony is necessary at the court hearing. Apparently, Ms. Brumbaugh no longer informs the parties verbally as to the proper procedures for the filing of the papers, but offers to let them copy papers described as "suggested procedural education."

The Florida Bar argues that the above activities of respondent violate the rulings of this Court in The Florida Bar v. American Legal and Business Forms, Inc., 274 So.2d 225 (Fla.1973), and The Florida Bar v. Stupica, 300 So.2d 683 (Fla.1974). In those decisions we held that it is lawful to sell to the public printed legal forms, provided they do not carry with them what purports to be instructions on how to fill out such forms or how to use them. We stated that legal advice is inextricably involved in the filling out and advice as to...

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