IN RE AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE (SELF HELP), 725 So. 2d 365

OVERTON, J. In In re Family Court Steering Committee (Fla.

Aug. 22, 1996) (Administrative Order), then Chief Justice Kogan directed the Family Court Steering Committee to recommend, among other things, “ways courts can assist self-represented litigants access the family courts through the use of standardized simplified forms, self-help centers, technological innovations, and other mechanisms, as appropriate.” Pursuant to that directive, the steering committee has petitioned this Court to adopt proposed Florida Family Law Rule 12.750, entitled “Family Self-Help Programs. ” According to the steering committee’s petition, approximately sixty-five percent of initial filings in family law cases are filed by self-represented litigants and approximately eighty percent of modification and enforcement cases involve at least one unrepresented litigant.

The steering committee asserts that the rule is needed to encourage self-represented litigants to obtain legal advice; to provide information concerning pro bono legal services, low cost legal services, and lawyer referral services; to provide forms, general information about the judicial process, and other information necessary to assist those who represent themselves; to clearly define the services provided to ensure that self-help programs do not provide legal advice through nonlawyers; to facilitate but not encourage self-representation; to assist in obtaining legislative funding for the programs; and to establish uniformity throughout the state to provide certain basic services in all circuits.

Specifically, the proposed rule (1) directs that self-help programs be established by local rule; (2) sets forth

definitions; (3) sets forth the services that can be performed and the limitations on those services; (4) sets forth activities that are not to be considered the practice of law; (5) provides that the information provided is not confidential or privileged; (6) provides that there is no conflict of interest in providing services to both parties; (7) provides for a disclaimer to be provided to persons receiving services; (8) provides that self-help personnel need not identify themselves on the form unless the personnel actually record information on the form; (9) provides that self-help programs are to be made available to all unrepresented litigants unless otherwise provided by statute; (10) provides that self-represented litigants may be required to pay for the costs of services if so directed by statute; (11) provides that all records of a self-help program are public records; and (12) creates an exclusion for domestic violence cases to allow for assistance in domestic violence matters as directed by Florida Family Law Rule 12.610.

The proposed rule was published in The Florida Bar Neivs and a number of comments were received. Some of the comments ask that we delay implementation of the proposed rule until the completion and evaluation of two legislatively-funded one-year pilot programs that began operation in September 1998. According to the comments, the pilot programs may resolve some concerns regarding the unlicensed practice of law. On the other hand, the steering committee and several other comments urge this Court to implement a rule now. We decline to postpone consideration of the proposed rule.

As noted by the steering committee, the proposed rule was submitted pursuant to the Chief Justice’s request to address a major access-to-the-eourts problem. Additionally, nineteen of the twenty circuits are currently operating some type of self-help program without any guidelines for operation. Accordingly, we adopt the proposed rule as modified in this opinion. However, we will consider modifications to the rule as necessary should the information obtained from the pilot programs so mandate. Next, we address whether there should be income limitations on who may qualify for assistance from the self-help programs.

We conclude that such income limitations are inappropriate. Indigents already may receive free legal services in dissolution matters through legal services programs. Unlike legal services programs, the self-help programs are designed to assist all litigants in obtaining access to the courts, without regard to income, who wish to pursue a dissolution, modification, or other family law action without an attorney. To place an income limitation on eligibility would defeat the purpose of providing assistance to all self-represented litigants.

Equally as important, an income limitation on eligibility would substantially increase the burden on trial judges before whom self-represented litigants appear and could result in this Court’s having to certify the need for additional judges due to this increased burden. We are also asked to clarify what services may be provided by the self-help program personnel and what forms may be provided.

In drafting the proposed rule, the steering committee has attempted to reach a balance between the need to provide services to self-represented litigants and the need to limit nonlawyer self-help program personnel from providing legal advice or otherwise engaging in the unauthorized practice of law. The steering committee acknowledges that defining the practice of law is difficult. In drafting the proposed rule, the steering committee relied upon court precedent in determining what activities constitute the practice of law and attempted to draft the rule accordingly.

However, the steering committee acknowledges that the provisions in the rule may exceed restrictions placed on the forms and on information nonlawyers may provide to self-represented litigants. For instance, currently, under Rule Regulating the Florida Bar 10-2.1, which governs in part the unauthorized practice of law, only Florida Supreme Court Approved forms may be provided by nonlawyers to self-represented litigants.

Under the proposed rule, self-help program personnel not only may provide approved forms, they also may provide forms approved by the chief judge of a. circuit that are not included in and are not inconsistent with the approved forms. Additionally, several comments contend that, even with this additional language, the proposed rule is still too limiting.

The comments seek to broaden those forms that may be provided by self-help program personnel to include any forms approved by a chief judge that are substantially in compliance with and not inconsistent with the approved forms, even if a similar form is included in the approved forms. In this way, the spirit of the approved forms would remain intact, but the various circuits could include local requirements in the forms or design forms to best fit their needs. However, some comments contend that, in order to provide statewide consistency, only the approved forms should be used.

We understand the concerns regarding statewide consistency in the use of the forms. In recognition of that concept, we recently adopted mandatory domestic violence forms to provide for such consistency. This consistency was necessary given the distinct problems that are inherent in domestic violence cases. However, our experience with the mandatory forms in domestic violence cases indicates that local provisions regarding family law cases vary greatly from circuit to circuit.

Accordingly, we find that local circuits should be able to use forms that are approved by the chief judge of the circuit and that are in substantial compliance with and not inconsistent with the Supreme Court approved forms. We need not amend rule 10-2.1 to be consistent with our holding here because the proposed rule specifically directs that the services listed in the rule, when performed by nonlawyer personnel in a self-help program, will not constitute the unauthorized practice of law.

The comments also ask that self-help personnel be allowed to provide litigants with forms appropriate to a litigant’s needs and to provide information about those forms. They note that, unlike situations involving the unlicensed practice of law, self-help program personnel will be trained and supervised by attorneys; they also will be working with court-approved forms and operating in the context of nonprofit, court-approved programs.

We find that self-help personnel should be able to provide information about the forms and to recommend specific forms so long as they do not provide advice or recommendations as to any specific course of action to be taken. In Florida Bar v. Brum-baugh, 355 So.2d 1186 (Fla.1978), we did hold that nonlawyers were prohibited from assisting litigants in preparing forms, from asking questions as to the particular forms, and from advising them how to fill out such forms and where to file them.

However, as noted by the comments, unlike the situation at issue in Brumbaugh where the unauthorized practice of law was at issue, the self-help programs are non-profit, court-sanctioned programs that will be operated under the supervision of attorneys. Notably, under the rule as proposed, no lawyer-client relationship will form between the litigant and the self-help center, and any information provided by the litigant is not confidential or privileged; a disclosure (“notice requirement”) of these conditions is required under the rule. We have modified the rule accordingly.

The Family Law Rules Committee of the Florida Bar also asks this Court to apply the proposed rule to all self-help programs and not just those operated “under the auspices of the court.” We decline to delete this language from the proposed rule. As other comments stressed, deleting this language would expand the rule to cover all federally and state funded legal services and legal aid programs and would greatly limit the services of other competent legal services providers that are staffed by attorneys.

Additionally, because we are allowing self-help program personnel to provide the appropriate forms and to provide information about the forms, if we were to delete that language, we would be approving specific activities for nonlawyers that are not otherwise allowed in programs not operating within court-sanctioned programs. Next, we are asked to allow self-help program personnel to direct litigants to appropriate statutes and rules and to provide them with

definitions of terms. Under the rule as proposed, personnel may “provide, either orally or in writing, citations of statutes and rules, without advising whether or not a particular statute or rule is applicable to the self represented litigant’s situation.” Some comments contend that this language should be deleted because it is unclear why any personnel would ever provide rules or citations not applicable to a litigant. The rules committee contends that elimination of this language would encourage the unauthorized practice of law.

The steering committee proposes to add the following language to the rule to alleviate the fear that providing a definition would amount to giving legal advice; that is, that personnel may provide

definitions “without advising whether or not a particular definition is applicable to the self-represented litigant’s situation.” However, the steering committee stresses that personnel should not be able to advise a litigant as to which rale or statute applies because that would constitute the practice of law. Additionally, the steering committee notes that confidential information should never be imparted to program personnel. We adopt the steering committee’s proposal and have amended the rule accordingly. We also received a number of suggestions from the Eleventh Circuit Self-Help Project staff attorneys.

Based on those suggestions, we have directed that the notice be made available in both English and Spanish, and we have added language to specify that program personnel are not acting on behalf of the Court. Accordingly, we adopt proposed rule 12.750 as modified by this opinion and as set forth in the attached appendix. The rule shall become effective at 12:01 a.m., January 1,1999. It is so ordered. HARDING, C.J., and SHAW, KOGAN, ANSTEAD and PARIENTE, JJ., concur. WELLS, J., dissents with an opinion. .

The legislature has provided $200,000 for pilot programs on self-help centers and apparently has asked for detailed information about the exact services to be provided before providing additional funds. . See, e.g., Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978).