The Florida Bar v. Stupica

• Decision Date: 17 July 1974
• Docket Number: No. 44130,44130
• Citation: 300 So.2d 683
• Parties: THE FLORIDA BAR, Petitioner, v. Joe L. STUPICA, d/b/a J. Lawrence Publications, Respondent.
• Court: Florida Supreme Court

Page 683

300 So.2d 683

71 A.L.R.3d 992

THE FLORIDA BAR, Petitioner, v. Joe L. STUPICA, d/b/a J. Lawrence Publications, Respondent.

No. 44130.

Supreme Court of Florida.

July 17, 1974.

Rehearing Denied Sept. 25, 1974.

Leonard Rivkind, Chairman, Miami Beach, and Richard C. McFarlain, Asst. Executive Director of The Florida Bar, Tallahassee, for petitioner.

Joe L. Stupica, in pro. per.

ERVIN, Justice.

This is an unauthorized practice of law case in which Petitioner, The Florida Bar, seeks an injunction against the advertisement, publication and sale of a document entitled 'Divorce Kit,' by Respondent Joe L. Stupica, d/b/a J. Lawrence Publications, which is designed specifically to be used in no-fault dissolution of marriage proceedings brought under the State's new dissolution of marriage law, Ch. 61, F.S.

The essential facts in this matter are set forth in the report of a Referee who was appointed and directed by this Court to try questions of fact in these proceedings, make findings of fact and conclusions of law, and report the same with his recommendations to this Court in accordance with the applicable provisions of the Integration Rule. See Article XVI thereof.

The Referee in his report made the following factual findings:

'1. THAT JOE L. STUPICA is not a member of the Florida Bar.

'2. THAT JOE L. STUPICA, d/b/a J. LAWRENCE PUBLICATIONS, publishes a document entitled DIVORCE KIT for Florida's New 'No-Fault Divorce' Law, and that the said documents are published by the said J. LAWRENCE PUBLICATIONS, Post Office Box 791, Pompano Beach, Florida 33061.

'3. THAT the said JOE L. STUPICA, d/b/a J. LAWRENCE PUBLICATIONS, operates a mail-order business out of Broward County, Florida, which markets the above referred to DIVORCE KIT. . . .

'4. THAT the said JOE L. STUPICA, d/b/a J. LAWRENCE PUBLICATIONS, also makes available to persons making inquiries to him a description of the KIT, which contains references to the law relating to dissolution of marriages and the procedures which would generally be used by parties in a dissolution of marriage. The said document also contains a series of questions relating to the commencing of the dissolution of marriage proceeding. Further, the document, by way of question and answer, reaches a conclusion that the DIVORCE KIT is legal. . . .

'5. THAT the said JOE L. STUPICA, d/b/a J. LAWRENCE PUBLICATIONS, advertises the said DIVORCE KIT through Florida-based publications and that advertisements are placed through approximately 200 paper and other types of publications in Florida. . . .'

The Referee made the following conclusions of law:

'THAT in a dissolution of marriage proceeding, each party has various personal and property rights which must be protected. Said protection is secured by receiving advice and counsel concerning the dissolution of the marriage of the parties. This advice involves the giving of legal advice and constitutes the practice of law.

'THAT the giving of legal advice by a person not licensed to practice law violates the provisions of the Integration Rule of the Florida Bar.

'THAT the facts in this case are governed by the ruling of the Court in the case of Florida Bar. vs. American Legal (and) Business Forms, Inc. (Fla.), 274 So.2d 225, 1973.

'It is the finding of the Referee that the activities of JOE L. STUPICA, d/b/a J. LAWRENCE PUBLICATIONS, constitute the unauthorized practice of law, in that the said JOE L. STUPICA is engaged in the advising of another as to how to secure a dissolution of marriage by was (sic) of selling the above referred to DIVORCE KIT and in providing persons interested in seeking the said DIVORCE KIT with instructions and advice, which do constitute the practice of law.

'This matter involves a personal relationship in each and every instance between the customer and the Respondent concerning the dissolution of a marriage. It does not involve the sale of a 'book' but an individual customer-supplier relationship between MR. STUPICA and the customer.'

The Referee recommended that 'the Respondent be permanently enjoined from the further unauthorized practice of law and that he be prohibited from the further advertising and sale of the Divorce Kit.'

A copy of the 'Divorce Kit' as an exhibit is attached to the report. It contains the following forms: Petition for dissolution of marriage; answer thereto; summons; sworn statement for constructive service; notice of petition for dissolution of marriage; motion for default; default; joint stipulations for motion for final hearing; motion for final hearing; order setting final hearing; and final judgment of dissolution of marriage.

In addition to the enumerated forms, several pages are conjoined giving explanatory data concerning the proper use of the forms as well as specific information concerning Florida's dissolution of marriage laws.

For examples: Residency requirements of six months is stated to be necessary in order to 'file divorce proceedings'; no final dissolution of marriage may be entered until at least 20 days have elapsed from the date of filing the petition for dissolution; judgment of dissolution results in the parties regaining single status and free to marry again; information upon how to get constructive service when the whereabouts of one's spouse is unknown; definitions are given of such terms as the petition for dissolution, petitioner, respondent, answer, uncontested action, default and enter of record; types of actions using the Divorce Kit are said to be three, namely, when the petitioner and respondent agree to get a divorce; do not agree to get a divorce, and when the residence of respondent is not known to petitioner and then follows instructions and advice as to the procedures to follow in using the forms in the three types of actions.

In addition to the foregoing information and advice, a page is devoted to the 'final hearing.' There is outlined the fact that the courts 'may require documentary proof of residence' of petitioner. Examples of proof of residency are stated to be 'a declaration of domicile, a deed to Florida property, a Florida driver's license, a Florida automobile registration, Florida voter registration, Florida homestead exemption, etc.' Next it is stated proof of residence may be given by a witness with sample questions to be asked the witness, 'Of your own knowledge, how long has the petitioner lived in Florida?' Next is set forth what is stated to consist of proof of reasonable diligence as to search and inquiry to be made by petitioner to discover the residence of the respondent. Sample questions are set forth, and finally there is set forth information concerning the proof to show that the marriage is irretrievably broken, with sample questions to be asked petitioner on that score.

The Respondent filed objections to the report. He contends that the 'Divorce Kit' is merely a law book or pamphlet publication of legal forms with allowable explanatory data and instructions as to use conjoined. He contends the publication establishes no personal relationship of attorney and client between the purchaser of the kit and its publisher. Particularly, he relies on the holding in New York County Lawyers' Association v. Dacey, 28 A.D.2d 161, 283 N.Y.S.2d 984, reversed and dissenting opinion adopted, 21 N.Y.2d 694, 287 N.Y.S.2d 422, 234 N.E.2d 459. There it was ultimately held that Dacey's publication, 'How to Avoid Probate,' did not constitute the unlawful practice of law. The dissenting opinion by Mr. Justice Stephens, which was adopted by the New York Appellate Division, was to the effect that:

'. . . it could not be claimed that the publication of a legal text which purported to say what the law is...