Dear Shannon:  I’ve been a land broker for a long time, built a reputation for having the highest level of ethics in business and wanted to share that I learned something new about the Code of Ethics: Article 13 has two obligations, and for all these years I was only focused on one.

I listed 23+ acres of land for a seller, put a sign up on the property and immediately got a call from a potential buyer. The next day the buyer inspected the property and submitted a full price offer. I presented the offer to my seller, and my seller had me prepare a counteroffer asking me to try to negotiate a higher price. The buyer was not happy and said they were going to consult their own attorney to see if they could force my seller to go through with the sale at the price it was originally listed. I told the buyer they were free to consult their own attorney, but, in my opinion, litigation would be expensive and a waste of time because the seller couldn’t be forced to sell. The buyer agreed to the higher price and the deal was closed.

Soon after, the buyer filed an ethics complaint against me claiming I gave them bad advice. At the ethics hearing, the buyer said they intended to consult their own attorney, but because of my assurances that legal action would be a waste of time, they decided not to. I said I told the buyer it was only my opinion, not intended to be a conclusive statement of the law. And, by the way, it was a correct statement under the law that the buyer could not force the sale.

I made sure to tell the buyer it was my opinion and it wasn’t intended to be a conclusive statement of the law. I didn’t think this was the unauthorized practice of law under Article 13 and the hearing panel would confirm my opinion. Interestingly, instead the hearing panel found me in violation of Article 13 for not affirmatively recommending that the buyer consult their own attorney.  That’s the part I had missed under Article 13. There are two different obligations under Article 13, and I had only been focused on one of them. Lesson learned.  My business practices will change for the better now that I’ve been made aware of this additional obligation. I’m grateful for the ethics hearing panel for holding me to the highest ethical standards.  Learned Something New

Learned Something New: Wow, thank you for sharing. It’s refreshing to hear how open you are to learning something new. I’m confident it will encourage other Realtors to be open to the possibility of learning something new and to improving their own business ethics.

Let’s take a look at the section of the Code at the center of this learning opportunity. Article 13 states: “Realtors® shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it.” (emphasis added)

The first obligation is to refrain from engaging in activities that constitute the unauthorized practice of law. When the buyer wanted to consult their own attorney about forcing your seller to sell, you expressed your opinion that it would be expensive and a waste of time, because the buyer wasn’t going to be able to force the sale. The hearing panel determined that simply by pointing out the fact that legal action was likely to be time consuming and expensive was stating a realistic situation that the buyer should consider and that this was proper. The panel further concluded that the expression of an opinion as to the probable outcome of the case was not an “unauthorized practice of law” within the meaning of Article 13. (NOTE: Other laws may apply to the “unauthorized practice of law” and might be interpreted differently, but in this article we are focusing on the “unauthorized practice of law” within the scope of Article 13 as interpreted by Case 13-3.)

Instead of finding you in violation of Article 13 for activity constituting the ‘unauthorized practice of law,’ the panel noted a second obligation under Article 13. Let’s look again at Article 13: “Realtors® shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it.” (emphasis added)

The hearing panel noted the obligation to “recommend that legal counsel be obtained when the interest of any party to the transaction requires it.” The buyer told you they wanted to consult an attorney to find out whether they could compel the seller to convey title to the property. But you expressed your opinion that it would be expensive and a waste of time. Even though those statements may have been true, the panel concluded that because you were aware the interest of the buyer required a legal opinion and failed to affirmatively recommend the buyer consult their attorney to definitively establish the legal rights in question, you had violated Article 13.

An excerpt from The Preamble in the Code of Ethics and Arbitration Manual reads; “The term Realtor® has come to connote competency, fairness, and high integrity resulting from adherence to a lofty ideal of moral conduct in business relations.” Sounds like you are committed to the lofty ideal of moral conduct in your business relations. Thank you for sharing your story, embracing the education provided by the ethics hearing process and for inspiring others to have an open mind when it comes to learning something new and to improving their own business ethics.

Inspired by Case #13-3: REALTOR®’s Obligation to Recommend Counsel When Needed.  Other laws and rules apply.

Shannon Allen is an attorney and Florida Realtors® Director of Local Association Services

Note: Advice deemed accurate on date of publication

© 2025 Florida Realtors®

ORLANDO, Fla. — Way back in the 1990s (1992 to be exact) the Florida Bar issued an Advisory Opinion. The question at hand was, “Whether it constitutes the unlicensed practice of law for a Florida real estate licensee and/or other nonlawyer to draft a residential lease up to one year in duration for another and, if so, whether the practice should be authorized?”

A little background:

In 1950, the Florida Supreme Court decided in a case (Keyes Co. v Dade County Bar Association. 46 So. 2d 605 (Fla. 1950)) that Florida real estate licensees are allowed to prepare a sales contract for the sale of real estate. In this case, the Court determined that any other documents must be prepared by a licensed Florida attorney. The drafting of the sales contract is considered the practice of law, but the Court carved out this exception for real estate licensees in these limited circumstances.

This is an issue that comes up regularly in calls to the Florida Realtors® Legal Hotline.

The Florida Bar is empowered to issue formal advisory opinions regarding activities which may be deemed the unlicensed practice of law.

There are two things that are considered when determining if an action is the unauthorized practice of law:

1. Does the service or activity constitute the practice of law?

(There is no codified definition, this is based on case law)

2. Once it is determined if an activity is the practice of law, there must be a determination whether the Court or another authorized body has authorized a nonlawyer to perform the activity.

By the 1990s the question about real estate licensees drafting one-year leases was due to be answered. After a public hearing, where testimony was presented, the Standing Committee at the Florida Bar issued an Advisory Opinion. In this Opinion, it was determined that there should be a Court approved residential lease form for leases not to exceed one year. The approval of the form lease did not also approve a nonlawyer to draft leases or prepare addenda to an approved lease form. The Opinion allows the nonlawyer to communicate with the landlord and/or tenant to elicit factual information to complete the form.

So, all of that to say, the reason Florida real estate licensees can draft a sales contract is because the Florida Supreme Court said they can in that 1950 case. The reason Florida real estate licensees can’t draft their own leases or go beyond just filling in the blanks to the two Florida Supreme Court approved leases (in Form Simplicity) is because there is no exception or case allowing them to.

It is always important to remember, just because you can doesn’t mean you should. There is always the potential for liability if you draft language in a sales contract that doesn’t go as planned. We provide many forms for Realtors to use that create a good starting point for transactions.

Finally, keep in mind that unauthorized practice of law is a 3rd degree felony in Florida.

Maria Marchante is Associate General Counsel

Note: Advice deemed accurate on date of publication

©2025 Florida Realtors