The Florida Bar v. Schramek

• Decision Date: 15 April 1993
• Docket Number: No. 77871,77871
• Citation: 616 So.2d 979
• Parties: 18 Fla. L. Weekly S243 THE FLORIDA BAR, Petitioner, v. Daniel E. SCHRAMEK, etc., Respondent.
• Court: Florida Supreme Court

Page 979

616 So.2d 979

18 Fla. L. Weekly S243

THE FLORIDA BAR, Petitioner, v. Daniel E. SCHRAMEK, etc., Respondent.

No. 77871.

Supreme Court of Florida.

April 15, 1993.

Rehearing Denied June 7, 1993.

Lori Holcomb, Asst. UPL Counsel, Tallahassee, John A. Yanchunis of Blasingame, Forizs & Smiljanich, P.A., and Howard P. Ross of Battaglia, Ross, Hastings & Dicus, St. Petersburg, for petitioner.

Daniel E. Schramek, pro se.

PER CURIAM.

This cause is before the Court on The Florida Bar's petition to enjoin the respondent, Daniel E. Schramek, individually and d/b/a Schramek & Associates and The L.A.W. Clinic, Inc., from the unlicensed practice of law. We have jurisdiction. Art. V, Sec. 15, Fla. Const. For the reasons expressed, we find that Schramek not only has engaged in the unlicensed practice of law but also has caused damage to those persons who sought his services and advice. We permanently enjoin him from further unauthorized practice of law and specifically enjoin him from appearing in any court in this State, directly or indirectly, as a spokesperson or representative for litigants in any court proceeding.

The record reflects that Schramek is a Florida resident, who has done business as Schramek & Associates, a business that publishes "kits" used for seeking legal relief, and as The L.A.W. Clinic, Inc. (the Clinic), a Florida corporation, of which Schramek and his wife, Amy, are the sole directors. Neither Schramek nor any employee of Schramek & Associates or the Clinic is licensed to practice law in the State of Florida.

After the Florida Bar petitioned this Court to enjoin Schramek from the unauthorized practice of law, this matter was referred to a referee for hearing and recommendation. The record from that proceeding reflects the following specific incidents in which Schramek engaged in the unauthorized practice of law.

The C.S. Incident

C.S. sought legal advice from several attorneys regarding reduction of his child support payments. He was told by those attorneys that his chances of getting his payments reduced were "slim to none." Subsequent to obtaining that advice, he contacted the Clinic, and Schramek told him that, based on the statutory child support guidelines, he thought C.S. had a "good chance" of having his child support reduced. C.S. then told Schramek to do what was necessary to have his child support payments reduced.

Schramek prepared all papers filed by C.S., including a motion for modification and a motion for a nonjury trial. Additionally, Schramek told C.S. what to take with him and what to do and say at the hearing. In the motion for modification, Schramek included the statutory child support guidelines as a basis for reducing C.S.'s child support. Contrary to Schramek's assertion, the statute governing the child support guidelines specifically states that the guidelines cannot be used as a basis for reducing child support payments. Sec. 61.30(1)(b)1., Fla.Stat. (1989). The motion for child support modification and request for nonjury trial, as drafted, are not included within the forms contained in either the Florida Rules of Civil Procedure or this Court's Approved Simplified Forms for use in family court proceedings. See Rules Regulating The Fla. Bar--Approval of Forms, 581 So.2d 902 (Fla.1991).

At the hearing on C.S.'s motion, the judge declined to reduce C.S.'s child support payments and ordered C.S. to pay one-third of his former wife's attorney's fees. After the hearing, Schramek told C.S. that he had thirty days in which to file a notice of appeal and that he would be happy to prepare C.S.'s appeal papers. Schramek, in the Clinic's invoice statement, attempted to secure a waiver, disclaimer or limitation of liability regarding his assistance to C.S. ¹

On these facts, the referee found that Schramek had given legal advice to C.S. regarding the effect of Florida's child support guidelines, the procedure for obtaining a reduction in child support payments, the child support hearing, and C.S.'s appeal rights, including available remedies and possible courses of action. The referee additionally found that portions of that advice were incorrect and that C.S., relying on Schramek's incorrect legal advice, was harmed because he was required to pay a portion of his former wife's attorneys' fees in addition to the fee he paid to the Clinic.

The M.M. Incident

M.M. retained the services of Schramek through the Clinic to prepare a living trust. As part of that living trust, Schramek prepared a quitclaim deed to transfer M.M.'s real property to the trust. The forms prepared by Schramek were not included within the forms contained in either the Florida Rules of Civil Procedure or this Court's Approved Simplified Forms. Further, the quitclaim deed was defective. Although the property was initially owned by M.M. and her husband, upon the husband's death, title to the property vested in M.M. alone. In preparing the deed, Schramek failed to recognize that fact and erroneously included a line on the deed which required the signature of M.M.'s deceased husband. When the deed was executed, Schramek signed the deceased husband's name on the deed and then notarized the signature. Consequently, to clear the title to the property after M.M.'s death, her heirs were required to formally probate her estate, which resulted in costs to the estate of at least $6,650.

The referee found that Schramek, in preparing the living trust and related documents, gave legal advice to M.M. regarding the effects of a living trust, failed to properly advise M.M., and failed to complete the transfer of her assets into the trust. Because M.M.'s estate was subjected to probate and additional expenses, her estate was harmed by Schramek's incompetent advice and document preparation. Additionally, costs and expenses were incurred by M.M.'s estate that would have not been necessary if M.M. had received proper advice in creating the living trust.

The V.G. Incident

V.G. retained the services of Schramek through the Clinic to prepare a living trust. Schramek, as part of those services, also prepared a pour-over will, a power of attorney, and a quitclaim deed to convey V.G.'s condominium to the trust. None of these forms were approved forms contained in either the Florida Rules of Civil Procedure or this Court's Approved Simplified Forms.

Some time after Schramek drafted the living trust and prepared the deed, V.G. became incompetent and was placed in a convalescent home. Subsequently, the condominium was put up for sale and a buyer was found. A title company then discovered that the deed had been incorrectly prepared, and the condominium could not be conveyed until a corrective deed was issued. Because V.G. was by that time incompetent and could not execute a corrective deed, the title to the property could not be insured and the buyers purchased other property.

Additionally, the trust had been drafted so that three individuals would serve jointly as successor trustees to V.G. The trust stated that the actions of one trustee were binding on the other two. Consequently, one trustee was able to transfer substantial trust assets to himself. Moreover, no provision was made as to what would happen in the event a co-trustee died, was disqualified, or resigned. Thus, when two of the successor trustees died, it was left to a court to interpret V.G.'s intent.

The referee found that Schramek had given incorrect legal advice to V.G. regarding the living trust and that this incorrect advice resulted in substantial harm to V.G. and her estate.

Franchising the Business of Selling Legal Services to the General Public

Schramek, through the Clinic, entered into an agreement with one Richard Campbell, a nonlawyer, whereby Campbell would set up and run a Pensacola branch office of the Clinic. Under the agreement, the Clinic was to act as a "service distributor" offering "legal services of all kinds" through the Pensacola office. According to Campbell's testimony, the legal services offered were in the areas of landlord/tenant, divorces, living trusts, bankruptcy, and adoptions. Campbell stated that the procedure to be followed under the agreement was that he would obtain information from individuals on an application form prepared by the Clinic, supply that information to the Clinic, and the Clinic, in turn, for a percentage of the fee collected, would prepare legal forms, including forms not approved by this Court. Additionally, Campbell testified that the Clinic provided legal advice regarding the forms and that much of that advice was incorrect and caused harm to patrons of the Pensacola office. For example, in the area of bankruptcy, patrons were told they were entitled to certain exemptions when, in fact, they were not. Campbell testified that so much of the legal advice given by the Clinic was incorrect that he disaffiliated himself from Schramek and the Clinic.

Schramek's Testimony

Although Schramek refused to answer any questions at the hearing before the referee based on his Fifth Amendment right against self-incrimination, he did answer questions during his appearance early in these proceedings before the Unlicensed Practice of Law Committee. During that testimony, Schramek testified that he gave legal assistance only to the extent that he assisted people in filling out forms supplied by this Court and in filing those forms with a court. However, he admitted that those forms, as filed, included his "modifications" and that he also used forms supplied by the secretary of state (to prepare articles of incorporation) and forms prepared by local attorneys (to prepare living trusts), even though none of those forms have been approved by this Court for use by nonlawyers.

Schramek also stated that he gives lectures to the general public on living trusts. In those lectures, he discusses the consequences of estate planning and the tax advantages that exist under certain circumstances. Additionally, because he has made...