Certain issues are more near and dear to my heart than others. This is one of those issues.
For those of you that have ever attended a Board Certification Course that I teach, I hope you would agree that a lot of hard work and preparation goes into the teaching of the course. Each slide discusses a new topic and a new Florida statute that I try to interpret for you and teach to the audience. Over two decades of experience practicing community association law in the courts of Florida are brought to the seminar, and I answer dozens upon dozens of questions about the laws, how they apply in your community and whether or not they even apply in your community. A whole section of the course is devoted to how it may be illegal for certain Florida statutes to apply in your community unless the “as amended from time to time” language appears in your governing documents. You tell me about specific facts that are happening in your community and I try to give answers to your questions and concerns by interpreting the statutes, the case law, The Florida Administrative Code, and other federal statutes and codes.
Of course, not only do I teach the course and certify directors, but so do numerous other well qualified attorneys throughout the state.
Here’s the problem……so do community association managers. Despite the fact that they have a license to practice community association management, and may be licensed for many years, in my humble opinion they are not qualified to teach the law and certify directors.
As I wrote two weeks ago, The Florida Supreme Court just wrote an opinion which dramatically limited what a Florida Community Association Manager can and cannot do. The Florida Supreme Court made it abundantly clear that a C.A.M. cannot interpret a statute or case law for the association. If they cannot interpret a statute or case law for the association they work for, why is it OK for them to teach them to the masses?
Here is what the Florida Supreme Court said constitutes the practice of law:
In determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of the advice and performance of the services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advice possess legal skill and a knowledge of the law greater than such possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.
The practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.
I guess a C.A.M. may argue that if they aren’t charging for the course they are not violating the law. But should that be the standard? Money? Is it OK for a CAM who might have passed their test a month ago to now be able to give advice and certify directors to the same extent as an attorney with experience in the field, as long as they are not charging for it? Should someone be allowed to practice medicine, as long as they don’t charge for it?
And before anybody runs their mouth and says that I’m trying to protect myself and other lawyers, read my prior blogs and listen to prior radio shows. I’m on record repeatedly as supporting the C.A.M.s in their fight to be able to do more without being accused of practicing law. However, when it comes to actually practicing law and teaching law at seminars to certify directors, I have to draw the line. Directors who wind up being misinformed about the law place their association in harms way. Wrong legal advice can subject the association to not only fines and penalties from the D.B.P.R., but potential large judgments that can have significant impact on the association, the owners and potentially directors in their individual capacities. It is imperative that if the “certification” requirement is to have any real meaning, any real benefit to the community association directors, they learn the law from people who are qualified to teach it and answer their questions, and that can only be a licensed Florida attorney.