Reprint by Permission of
In the 1970s, Bob Sherin was running a small computing services business when the Florida Department of Revenue decided to start taxing the growing sales of computer software. Hit with a $45,000 bill that at the time would have put him out of business, and with little money to pay a lawyer, Sherin decided to fight the case himself.
When the time came for him to argue before the Division of Administrative Hearings, Sherin didn’t just fight his individual assessment, he questioned the new tax law itself. In what some have called a brilliant cross examination, this son of a Boston lawyer showed that those making the tax law didn’t know how to define computer software, much less tax it. Sherin won, and the state returned collected tax revenues. Sherin has been fighting in and against Florida’s legal system ever since.
An unassuming history buff prone to quick laughter, Sherin has spent more than a decade dispensing unpaid help to people caught in legal battles. The Florida Bar has investigated the southern Miami-Dade resident for the unlicensed practice of law to no avail. Needless to say, he has become one of the Bar’s harshest critics.
Now, he also is leading a movement that questions many of the basic premises that govern the practice of law, with proposals that include putting lawyers under the regulation of the Department of Professional Regulation and changing court rules to even the playing field for people acting as their own attorneys. Fresh from publishing a new book, Justice Disrobed, he discussed his ideas with Coral Living.
Your father was a lawyer, which means that in some ways you had a relationship with the law since childhood. Did you want to be a lawyer growing up?
The fit with Dad was natural. As a 10-year-old kid, I was thrilled to take the attention of my 51-year-old father off my brilliant older brother, Richard. Born in 1898, Dad came from another time and ethic, when perjury was abhorrent. In his world, watches were time pieces that dangled from vests. He practiced under the exacting procedure of common law when a pleading could be dismissed on a technicality, say, a demurer, vastly different than the free-for-all, manipulated rules of today. Law came to define his life, as he was swept away by the sheer brilliance of our Founding Fathers and the eloquence he saw in their work, our Constitution.
"He who sits on his rights waives them for all time," he would characteristically tell me. Thinking through his cases during off hours yet recognizing this was deep stuff for a 10-year-old, he’d talk by example: "Tony re-tarred our driveway but, as you know, there was a problem. If I didn’t speak up then, I would tend to waive my right to call him on it later. Waiver is a question of facts. Another class of principles, those of law – estoppel and latches, statutes of limitations, can also be invoked for remedy in reasonable time. So you have two facets at work: facts and law." Golden words of law for a youngster.
For Dad filled with animation when he talked law – I picked up his excitement. This was a way of emotional cleansing for me, the most privileged upbringing, all the more so because he didn’t bring down his vocabulary. Later on, becoming a lawyer was out of the question, since I was tied up as a soldier in the Vietnam era, graduating from college only recently, in 1994.
Your role as a nonlawyer practicing law seems to have begun in the mid 1970s, when the Florida Department of Revenue attempted to tax your computing services business. You defended your case yourself, but did you ever consider hiring a lawyer?
Yes, of course, that was my first inclination. But as I got into my case, I could see that victory with a lawyer would be senseless. After the shock of the bruising $45,000 tax assessment wore off, I looked around, finding that General Telephone had a pending case. When I obtained their initial pleading that alleged global violations of the U.S. and Florida Constitutions, I knew those issues would go on ad infinitum. And though most everyone thought the issue couldn’t be won, together with my lack of confidence in lawyering, my hand was forced by potential legal fees. Before we leave your premise – "(my) role as a nonlawyer practicing law" – let’s be clear that we’re not talking a fraudulent or nefarious activity but one authorized by The Florida Supreme Court in The Florida Bar v. Edward P. Moses.
When did you get the first sign that you are not welcomed by the legal community?
When the computer issue hit the press, it took off nationwide. The computer industry was standing up and fighting back. Wherever the industry organized, a trade organization paid my travel and hotel costs to bring home the issue. Half the task was firing up the rank and file that this was an unjust tax singling out the computer industry. After all, attorneys didn’t pay sales tax, nor did accountants. Why should computer professionals? First, New York State became our focal point.
I found myself in a huge hall listening to a presentation by prospective New York counsel. "We need to raise a million dollars," he said, portraying confidence that successful fundraising and victory were synonymous. "Insane," I thought, so I got up, asking "What is the definition of software you propose pursuing?" When he couldn’t answer, I added, "If you don’t know that definition, how do you know who you’ll be representing?"
They dragged me out of that hall quickly; I was bad for the legal business. New York wound up going our way for pennies on the dollar, and we, the grass roots, made it happen.
I ran into another side of the legal industry, however, that was nothing short of brilliant. ... In the end, about half the states in the country went our way, mostly by grass-roots initiative.
At times you seem to have a love-hate relationship with the law. That is, you seem to love the rule of law but show little love for the people who apply it. Is it possible to separate the two?
Yes. Like anything else, there’s good and bad everywhere, and we have our individual points of view. Too, the legal arena has a diversity, and some there feel the same urgency for legal reform as we nonlawyers.
You believe that the Bar often exceeds its authority in some cases, yet doesn’t go far enough in applying authority in other cases Why do you believe this?
Hundreds of thousands of dollars of proven legal fees pilfered by Bar members from consumers upon which [the bar] fails to act. Some $10 million stolen from asbestos victims, a case so severe the Bar disbarred [a] lawyer but failed and refused to criminally prosecute. These examples far exceed my case, but since I know mine best, let me start with it.
In 1974 the Florida Legislature constituted The Division of Administrative Hearings (DOAH) to hear cases connecting with Florida agencies, except The Florida Bar (barred by the Division of Powers). At that time, nonlawyers were enabled by statute to appear before DOAH as representatives. For this class of cases, DOAH, in my view, is far superior to judicial courts, which have parallel jurisdiction. I’ve had wonderful success practicing before DOAH from the beginning.
Although The Florida Supreme Court has anointed such practice as "authorized practice," The Florida Bar opened an investigation of me in 2003. Using as ground the Unlicensed Practice of Law (UPL), they asked me a wide array of questions surrounding all of my legal activities over the years but never responded to me on probable cause. The investigation went on for nine months, involving a detective and the committee, which ostensibly meant it had found probable cause. Yet the whole while they never made me privy to what I was alleged to have done wrong. As a consequence, my wife and I were denied an umbrella insurance policy. And even though the investigation was closed without action, I remain on The Florida Bar’s rogues’ gallery of UPL suspects, unable, to this day, to move the Bar to remove me.
In the ’80s, The Florida Bar started and spun off its own malpractice carrier, Florida Lawyers Mutual Insurance Companies (FLM). John Harkness, executive director of The Bar, an agency of Florida government, also sits on the board of FLM, a private company. His roles could not be more conflicted. At the Bar, he is charged with the responsibility of disciplining misbehaving lawyers, while on the board he’s charged with protecting them. A study of 50 disciplined Florida Bar members reveals that not one of those slapped with discipline was insured by FLM. With utterly no oversight, the Bar protects a good-ol’-boy network. You are either on the inside, where you can make things go your way, regardless of merit, or on the outside, where you can no longer expect justice – and it connects with the executive branch of government. These are the power brokers of Florida.
The implication is that if any attorney is covered by FLM he/she doesn’t get disciplined by the Bar. But much of what you point to is anecdotal. The study you mention was an informal survey ...
All right, good points. First, the informal survey supports accumulation of evidence: interlocking directorates between Bar and FLM; nothing done on grievances crying out for action; proven legal consumer fraud in the hundreds of thousands of dollars that goes unpunished while nonlawyers and lawyers with unpopular views, stripped of due process, are investigated; and the Bar employs an unconstitutional rule muzzling Florida’s 80,000 lawyers from any negative utterances...
[The study] is just a beginning. What else do we have? Would you trust a Bar study when you consider, among other things, it ballyhoos "protecting the public interest," while it terrorizes many of us?
So where should the Bar draw the line in going after nonlawyers who offer legal advice?
The Bar has no Constitutional jurisdiction to go after nonlawyers. As an arm of the Supreme Court, their bailiwick is education of the profession and discipline of lawyers charged with misconduct. The Bar’s power derives from the Florida Supreme Court, which has misinterpreted its role in lawyer regulation to include nonlawyers.
It claims to have "inherent authority," a weak argument for what is, in fact, interference with the Constitutional rights of Florida citizens. They maintain that "giving legal advice" is illegal yet its arbitrary definition strikes at the heart of free speech, enabling the Bar to attack any of us.
Florida state’s attorneys have the duty of prosecuting crimes, and this includes unlicensed practice of law. More than questionable authority, there is no need for a second prosecutory authority meddling in the process, especially when nine times out of 10 its activities are aimed at preserving its monopoly.
But the state attorney’s office is also made up of lawyers. Would you expect the outcome to be any different?
Lawyer bias is unavoidable; after all, each of us is biased in some way. But a sharp line of demarcation separates prosecution by the Florida Bar and the state’s attorneys. The Bar employs UPL as a means to an end: To systematically eliminate perceived competition.
They do this through tagging nonlawyers, many of whom are operating legally, to make cases that ever expand case law, shrinking our rights, expanding lawyers’ [rights]. State’s attorneys, on the other hand, have no such scheme. They prosecute all crimes, UPL being a minimal part.
Having been the object of such a Bar investigation for nine months without probable cause or charges before they called it quits, I believe I can claim some expertise on the subject.
An entire department is situated at Bar headquarters called The UPL Institute, fanning out through Florida. The name suggests a place of higher learning – perhaps even a campus or two, but the reality is worlds away. Its main purpose is to shake down innocent nonlawyers who threaten its income stream. With its own corps of detectives and committees, its design resembles an undercover organization where neighbor informs on neighbor. You can be sure the Institute won’t be carrying Justice Disrobed.
No other area of life prevents the free flow of legitimate ideas, but in Florida you’ve got to watch your step when you touch on the subject of law or help anyone. It takes very little to incur the Bar’s wrath – and we’re not talking fraud or dishonesty. Endless investigations and prosecutions are the means employed for protecting the legal monopoly.
Where should nonlawyers draw the line when dispensing legal advice?
Communications can always veer into legal advice. For example, many converse with a friend going through divorce. Because laws govern life, everyone of us, in fact, touches on the giving of legal advice. The Bar arbitrarily decides who among us is violative, and they’ve been governed by their own aggrandizement, instead of the public interest they ballyhoo.
Should we allow them such broad power? The Bar’s jurisdiction over nonlawyers ought to be limited to situations of fraudulently holding oneself out as a member. This falls squarely within the ambit of lawyer regulation.
Crimes are handled by the state’s attorney and this includes nonlawyer crimes connecting with law, as with everything else. As long as nonlawyers inform those with whom they deal that they are not members of the Florida Bar, unencumbered communications ought to be permitted. This is the American way.
How do you decide if to handle a case?
Ten years ago I threw out all my legal books – Prosser on Torts, Corbin on Contracts, Davis on Administrative Law – never intending to go there again. That, however, didn’t stop the legal talk in which my friends engage me. When I’m made privy to a problem, where I can make a legitimate difference, I don’t hesitate to go there. My goal is helping society, and I’ve always done this work free.
Sometimes this entails a friend retaining counsel for a consultation, other times counsel’s involvement is greater, depending upon the demands of the case and knowledge necessary to prosecute it. There’s nothing like plumbing a Florida Bar member for his knowledge in a specialized area. And the licensed do the same thing. With the aid of the law library, I take most cases all the way, including assistance on appeal. If you publish this, realize you’re publishing heresy.
I’ve seen my role morph over the years to become legal consumer advocate, because people tend to turn their matters over to counsel without a clue of what is going on. A crying need exists for legal ombudsmen. I encourage clients of lawyers to receive a copy of every paper filed, to follow the action and participate in the strategy. Those of us nonlawyers involved in legal reform believe that to turn over a case to a lawyer and forget it will, for the most part, lead to an inferior result than if one were to pursue the case pro se – being your own lawyer.
You sometimes inform the Bar of your activities before engaging in them.
I never used to contact the Bar on anything, because, as a nonlawyer, I’m outside their jurisdiction. But since they launched their investigation in 2003, I’ve called UPL Counsel about everything conceivably touching them. With nothing to hide, I deem telling them ahead of time honorable.
Examples of alerting them go to the case that gave rise to their investigation. My good friend, Lon Ohlfest, had asked me to represent him in an unemployment claim against Miami-Dade Community College and before DOAH for wrongful termination. After winning the unemployment claim, I pleaded Lon’s case before DOAH, fully authorized to do so under 28-106.105, then 28-106.106, Florida Administrative Code. The DOAH action involved waivers and variances before the governor and Cabinet and judicial appeals. Before helping Lon with his judicial, pro se appeals, I called to notice the Bar of our plan.
At times, it seems as if you believe there is a massive conspiracy within the Bar to muzzle anyone who disagrees with the status quo or who challenges its authority. Some of your language is extremely strong. Consider this quote: "The gang that plays together, terrorizes together, stays together." Do you really believe the Bar terrorizes?
Absolutely, that is the theme of my book ... permit me to quote persecuted and prosecuted nonlawyer Ron Eubanks, owner of Able Legal Forms, who was forced to flee Florida: "The Florida Bar and the Justices of the Supreme Court of Florida have been conducting, and continue to conduct, a legal technician eradication program under color of law. The purpose of this campaign is to perfect a monopoly on the lawful dissemination of information relating to our judicial system and our laws. The Florida Bar and the Court are striving to force all citizens to go through a member of The Florida Bar and pay a fee rather than receive factual information, even free information, from a non-member of the Florida Bar, 98.5% of Florida’s population."
Eubanks goes on to explain that once targets are identified, the Bar prosecutes them in nonjury trials with the help of the court at taxpayers’ expense. Citizens are not prosecuted by neutral parties but by their adversary, The Florida Bar, and are found guilty. The Court issues an injunction, having the effect of nullifying a victim’s right to free speech. Violators of the injunction are held in criminal contempt and are jailed without jury trial.
At times you have felt persecuted by the Bar. Do you still feel that way?
No. After bringing their Cease and Desist Affidavit into Miami-Dade County Circuit Court for Declaratory Judgment, staying Florida Supreme Court action, they moved to dismiss my action on the ground that their affidavit was meaningless. From that moment on, they’ve told me not to bother them, so I get the idea now that they construe my communications an invasion.
Are you still working on cases? If so, what cases are you working on?
Yes, but this question requires a foundation. I decided to write Justice Disrobed because it was the only relief I could get for my situation, and I posted the manuscript on the Web for the benefit of those charged with misconduct. What I got instead was a deluge of cases much worse than mine from judges, lawyers and nonlawyers. Empathizing with their plight, those still aggrieved call often, discussing their situations, and I robustly interact. All of the cases right now have their own counsels, and my involvement is minimal at best.
Recently, your attention has gone in the direction of research and writing. Is this a new passion, and does this mean the Florida Bar can hold out hope that it won’t have Bob Sherin, nonlawyer, to deal with in the future?
Writing has always been a passion, as you professional editors have taken me under your wing, lighting the way to improved communications. That doesn’t mean I’m finished with the book’s work.
Justice Disrobed has coalesced a movement of people statewide fed up with our politicized judiciary, aiming to change it. Some of the initiatives are: putting lawyers under the regulation of the Department of Professional Regulation, making judges accountable for their conduct on the bench, changing practices in our courts that discriminate against pro se litigants and exonerating innocent UPL targets from prosecution.
As long as there is life, the legal problems will keep coming, friends will need help, and I may even need to defend myself.