author: PER CURIAM.

text:
    2001 SD 125
    Charles World TURNER, Petitioner and Appellee, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellant.
    No. 21876.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2001.
    Decided Oct. 24, 2001.

      Jerry L. Pollard of Kabeiseman & Pollard, Yankton, South Dakota, Attorneys for petitioner and appellee.
    Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for respondent and appellant.
   PER CURIAM.

[¶ 1.] The State appeals an order granting Charles World Turner’s petition for habeas corpus relief from his sentences for third offense driving while under the influence of alcohol (DUI) and attempted manslaughter and remanding his case to the trial court for resentencing. We reverse.

FACTS

[¶ 2.] In May 1997, World Turner was arrested in Yankton, South Dakota for third offense DUI. In August, he was again arrested in Yankton after attacking the proprietor of a convenience store with a knife, cutting her and attempting to open her cash register. As a result of these arrests, charges were filed against World Turner for third offense DUI, attempted second degree murder, attempted first degree robbery and aggravated assault. World Turner was arraigned and pled not guilty. Plea bargaining ensued and World Turner was charged with the lesser offense of attempted first degree manslaughter.

[¶ 3.] World Turner’s rearraignment was conducted on December 23, 1997. At that time, the State read the information and indictment charging him with third offense DUI and attempted manslaughter. The trial court then went forward and thoroughly explained the charges, the maximum penalties, World Turner’s Constitutional rights and the rights waived with the entry of guilty pleas. At each step, World Turner indicated his understanding of the trial court’s explanation. The trial court then called on World Turner to plead to the charges of third offense DUI and attempted manslaughter and World Turner pled guilty to both offenses. At that point, the trial court inquired as to whether there was a plea bargain and the state’s attorney indicated an agreement had been reached. He explained that agreement as follows:

MR. RIDGWAY: ... In return for Mr. World Turner’s plea of guilty to Parts I and II of the DUI [Information] the state would be free to argue for whatever punishment would be appropriate, as would Mr. Hosmer [ie., defense counsel]. On the plea of guilty to the.Attempted Manslaughter the state would dismiss the prior Indictment dated September 8, 1997, charging Attempted Murder in the Second Degree, Attempted Robbery in the First Degree and Aggravated Assault. In addition, the state would recommend a 25 year sentence on the Attempted Manslaughter with five suspended, and that sentence will be served concurrently with the sentence that was imposed on the DUI 3rd.
THE COURT: Then is the defense free to argue for a lesser sentence?
MR. RIDGWAY: That’s correct.
THE COURT: Mr. Hosmer, is that your understanding of the agreement?
MR. HOSMER: Yes, Your Honor, it is.
THE COURT: And, Mr. World Turner, is that your understanding of the agreement?
MR. WORLD TURNER: Yes.
THE COURT: Was there anything else that you thought was promised to you or agreed to by one of the attorneys here that they haven’t told me about?
MR. WORLD TURNER: No.

[¶ 4.] Following this explanation, the trial court went forward to confirm with World Turner that he understood the rights he was waiving with his guilty pleas and to lay a factual basis for acceptance of the pleas. With the agreement of the parties, the trial court then proceeded to sentencing. In arguing in mitigation of the sentence, defense counsel made the first reference to World Turner’s parole eligibility stating:

I would inform the court, and I’m sure the court is already aware, that whatever sentence is imposed in this case the defendant is going to have to serve át least fifty percent of that time. He is not eligible for any parole until he has served fifty percent of whatever the court imposes by way of a sentence. So that if the court adopts the recommendation of the state he’s going to have to serve a minimum of 10 years.

After the state’s attorney’s response, the trial court sentenced World Turner to one year in the penitentiary for the DUI and to twenty-five years for attempted manslaughter. Five years of the manslaughter sentence were suspended and the trial court further ordered that the DUI and manslaughter sentences run concurrently. With regard to parole eligibility, the trial court then made the following pertinent comment: “My records here indicate just what Mr. Hosmer indicated that on a violent offense that you have to serve 50 percent of your sentence which would mean that it would be 10 years before you would be eligible for parole on that.” The proceedings were then concluded.

[¶ 5.] In September 1998, World Turner filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel and failure to follow the plea bargain. In his petition, World Turner alleged that a substantial part of the inducement for his entry into the plea bargain was that he would be eligible for parole in ten years. Instead, when he arrived at the penitentiary, he learned that he would not be eligible for parole for thirteen years. Counsel was appointed to represent World Turner for the habeas corpus proceedings and, for various reasons, he changed counsel on several occasions. In November 1999, one of his attorneys filed an amended petition for habeas corpus relief again alleging ineffective assistance of counsel and failure to follow the plea bargain and also alleging a due process violation in the trial court’s incorrect statement of his parole eligibility date.

[¶ 6.] A habeas corpus hearing was held in August 2000. After the hearing, the habeas court entered findings of fact and conclusions of law determining that World Turner was deprived of effective of assistance of counsel due to the misinformation concerning his parole eligibility. The court further determined that the plea agreement upon which World Turner relied was unfulfilled. Accordingly, the court found his pleas were not knowingly, intelligently or voluntarily entered and remanded the case to the sentencing court for resentencing that would afford World Turner parole eligibility in ten years. The State appeals.

ISSUE

[¶ 7.] Did the habeas court err in granting World Turner habeas corpus relief?

[¶ 8.] On appeal, the State argues the habeas court erred in granting World Turner relief because there was no breach of the plea agreement; there was no ineffective assistance of counsel in misinforming World Turner of his parole eligibility date ; and, there was no involuntariness in World Turner’s pleas as a result of the misinformation concerning parole eligibility. These arguments will be addressed in the order in which they are raised.

Breach of the Plea Agreement

[¶ 9.] In support of his argument before the habeas court concerning breach of the plea agreement, World Turner relied upon State v. Bracht, 1997 SD 136, 573 N.W.2d 176 (SD 1997) and Bracht provided a substantial basis for the relief the court granted World Turner. In Bracht, the defendant entered into a plea bargain for his guilty plea to third offense DUI. In outlining the terms of the plea bargain at the arraignment, defense counsel specifically stated that the State had agreed not to resist a request for a suspended imposition of sentence. The state’s attorney registered no objection to that term of the plea bargain, yet, at sentencing, strenuously argued with the obvious intent to disparage the request. This Court held that the argument was a clear breach of the plea agreement and remanded the case for resentencing by a different judge. In reaching our decision, we specifically noted the U.S. Supreme Court’s holding in Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433 that, “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (emphasis added).

[¶ 10.] Here, in contrast with Bracht, the plea did not rest in any degree, let alone a “significant degree,” on a promise concerning parole eligibility. A review of the above facts makes clear that parole eligibility did not even come up until defense counsel’s argument in mitigation of punishment after the plea bargain was explained and after World Turner had already entered his pleas. Absolutely nothing about parole eligibility was mentioned in the State’s Attorney’s explanation of the plea agreement and defense counsel made no comment in response. World Turner himself was asked if there was anything else he thought was promised to him for his pleas and he responded “No.” Thus, by his own words, World Turner is foreclosed from now claiming that parole eligibility played a significant part in inducing his guilty pleas and the trial court clearly erred in determining otherwise. See Ramos v. Weber, 2000 SD 111, ¶ 4, 616 N.W.2d 88, 90 (habeas court’s factual findings reviewed under clearly erroneous standard).

[¶ 11.] Since World Turner’s pleas rested in no “significant degree” on promises or agreements concerning parole eligibility, no breach of the plea bargain is established on that foundation. The habeas court erred in concluding otherwise.

Ineffective Assistance of Counsel

[¶ 12.] The standards of review for claims of ineffective assistance of counsel were reiterated by this Court in Ramos, 2000 SD 111 at ¶ 12, 616 N.W.2d at 92-93:

We follow the test for ineffective assistance of counsel prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See Jones v. State, 353 N.W.2d 781, 784-86 (S.D.1984). In Strickland, the United States Supreme Court stated:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The question whether trial counsel was ineffective is a legal question, reviewable de novo. We presume the competence of counsel, and habeas applicants must overcome that presumption. Applicants must prove that the outcome was prejudiced by inferior performance of counsel. Prejudice means “a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different.” A “reasonable probability” is said to exist when there is proof sufficient to “undermine confidence in the outcome.” We are not required to decide whether counsel’s performance was sufficient before looking at whether the applicant was prejudiced by “alleged deficiencies.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (some citations omitted).

In addition to these standards, it must be remembered that World Turner’s convictions were obtained as a result of guilty pleas. In guilty plea eases, the “prejudice” inquiry focuses on whether the alleged error of counsel caused the defendant to plead guilty rather than go to trial. See Lien v. Class, 1998 SD 7, ¶ 15, 574 N.W.2d 601, 607.

[¶ 13.] Here, there appears to be little dispute that the performance of World Turner’s counsel at the plea proceedings was deficient for his failure to accurately advise World Turner of his parole eligibility date. Even the State concedes that, “it is difficult to imagine a strategy that would be promoted by improperly informing petitioner of parole eligibility.” However, the habeas court’s findings and conclusions reflect little consideration of the prejudice prong of the test for ineffective assistance of counsel. Indeed, World Turner fails in any attempt to establish prejudice because the plea bargain explained during the plea proceedings fails to reflect that parole eligibility played any role whatsoever in securing World Turner’s pleas. Doubtless it was the dismissal of the other more serious charges that played the decisive role in inducing his guilty pleas. Even World Turner himself did not deny this at his habeas hearing. When specifically asked by the habeas court if he would have taken the plea bargain had it been for anything different or if it had required “more time,” World Turner answered, “[i]f the plea bargain was over — I don’t know. If it was over — that’s the lowest they were going to go. So that’s why I jumped on it.”

[¶ 14.] World Turner can claim no better version of the facts than he himself has testified to. See State v. Frey, 440 N.W.2d 721, 727 (S.D.1989)(defendant not entitled to any better version of the facts than he himself testifies to). By his own statement, it is clear World Turner was not only anxious to take the State’s lowest plea offer, but that he “jumped on it.” Thus, he has in no way established prejudice resulting from his counsel’s failure to accurately advise him of his parole eligibility date during the plea proceedings. It follows that the habeas court erred in finding ineffective assistance of counsel in this case.

Voluntariness of Plea

[¶ 15.] This Court recently reviewed the voluntariness of a guilty plea in State v. Nikolaev, 2000 SD 142, ¶ 9, 619 N.W.2d 244, 246, and summarized the applicable principles as follows:

As a matter of federal constitutional law, ‘[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination.’ In addition to waivers of these three ‘Boykin rights’ the record must disclose, as a matter of South Dakota law, that the defendant understood the nature and consequences of his plea, (quoting State v. Robinson, 469 N.W.2d 376, 378 (S.D.1991)).

With regard to advice as to the consequences of a plea, this Court has held that, “a court must address a defendant personally in open court, inform him of and determine that he understands’ ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]’ ” State v. Timperley, 1999 SD 75, ¶ 12, 599 N.W.2d 866, 868 (quoting SDCL 23A-7-4(l)). However, this Court has also held that “ ‘it is not necessary for a court to inform a defendant of the collateral consequences of a guilty plea[.]’ ” Id. (quoting State v. Wika, 464 N.W.2d 630 (S.D.1991)). This includes advice concerning “eligibility for parole.” Gregory v. State, 353 N.W.2d 777, 781 (S.D.1984).

[¶ 16.] Here, prior to accepting World Turner’s pleas, the trial court thoroughly advised him of his right to confront and cross-examine the witnesses against him at a trial; his right to a speedy public trial by jury in Yankton County where the offenses were alleged to have been committed; and, his privilege against self-incrimination and right to remain silent. The trial court further advised World Turner that guilty pleas would waive these rights. The trial court also advised World Turner of the maximum possible penalties for third offense DUI and attempted first degree manslaughter and that the sentences could be ordered to run consecutively rather than concurrently. At every step, World Turner indicated he understood his rights, the possible penalties and the rights he would waive by pleading guilty. As concluded in Nikolaev, 2000 SD 142 at ¶ 12, 619 N.W.2d at 247, “[tjhis is ah that is required.” Accordingly, the habeas court erred in finding World Turner’s guilty pleas were not entered voluntarily.

[¶ 17.] Based upon the foregoing, the order granting habeas corpus relief to World Turner is reversed.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, KONENKAMP, Justices, and GORS, Circuit Judge, Acting Supreme Court Justice, participating.

      . There is no dispute that under the statute controlling calculation of parole eligibility, Le., SDCL 24-15A-32, World Turner was misinformed as to his parole eligibility date by both his own counsel and the trial court. Thus, it is undisputed that, despite the information provided to World Turner, his first parole eligibility is thirteen years from the date of sentencing rather than the ten years mentioned by his defense counsel and the trial court.

      . In fact, parole eligibility is not something within the power of the prosecutor to promise. It is a statutorily controlled consequence of the sentence imposed. See SDCL 24-15A-32. Nothing any prosecutor may say can control it.

      . The State acknowledges the court’s statutory obligation under SDCL 23A-27-48 to inform a defendant pleading guilty of "the estimated minimum period the defendant must serve before being eligible for parole.” However, as the State points out, this has nothing to do with insuring the voluntariness of a plea. No authority is provided by World Turner to establish that advice concerning a parole eligibility date is a requirement for entry of a voluntary plea. In fact, the holding in Gregory, supra, concerning advice as to the collateral consequences of a plea appears to rebut that contention.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT COMMISSION ON UNAUTHORIZED PRACTICE OF LAW, Appellee, v. LeRoy James STURGEON, Appellant.
    No. 99-0417.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    As Revised on Denial of Rehearing Nov. 28, 2001.

      LeRoy J. Sturgeon, Sioux City, pro se.
    Thomas J. Miller, Attorney General, and Grant K. Dugdale, Assistant Attorney General, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   LARSON, Justice.

LeRoy Sturgeon has appealed from a district court order enjoining him from the unauthorized practice of law arising out of his bankruptcy business. We modify and affirm.

Sturgeon meets with clients in his office and interviews them to obtain information to prepare chapter 7 bankruptcy documents. Signs posted in his office, as well as his advertising, state he is a “non-attorney bankruptcy specialist” and “no legal advice” is given, although he was an attorney prior to his disbarment in 1992. According to his testimony,

I conduct an initial interview to obtain information from them. I take that information and on some occasions have to seek out additional factual information and I input that data into a computer that contains bankruptcy software. And then that information fills in the blanks on the forms.
I then print off those forms, have those debtors return to my office, read them, let me know whether or not they’re accurate. If they’re not, I then make corrections or changes as they direct so that they’re finally determined to be accurate.
And then they sign them so that they may be copied and filed with the Clerk of the United States Bankruptcy Court.

On April 13, 1998, our Commission on the Unauthorized Practice of Law (commission) sought an injunction against Sturgeon, claiming his bankruptcy business violated our unauthorized practice rules. The district court granted the injunction, and Sturgeon appealed.

Sturgeon’s appeal raises six issues, which we consolidate into four: (1) the court’s interpretation of 11 U.S.C. § 110, concerning the scope of work permitted to be performed by a nonattorney; (2) the adequacy of the factual record to support the charge; (3) the constitutionality of our unauthorized practice rules; and (4) the scope of the court’s injunction.

I. Interpretation of 11 U.S.C. § 110.

Sturgeon argues 11 U.S.C. § 110 prevents Iowa from

totally ban[ning] all forms of non-attorney bankruptcy preparers.
... Congress could not have intended that some states may allow non-attorney bankruptcy preparers to perform the limited services in the federal courts located in those states, while other states may preempt this Congressional act and ban any and all such services.

However, the statute provides that states may do exactly that:

Nothing in this section shall be construed to permit activities that are otherwise prohibited by law, including rules and laws that prohibit the unauthorized practice of law.

11 U.S.C. § 110(k) (1994). “As a result of this provision, a document preparer may not use § 110 as a ‘safe harbor’ if a rule or certain rules prohibit the unauthorized practice of law or the document preparer’s activities are otherwise prohibited by law.” In re Gabrielson, 217 B.R. 819, 826 (Bankr.D.Ariz.1998); see also In re Farness, 244 B.R. 464, 470 (Bankr.D.Idaho 2000) (stating that the ability of nonlaw-yers to practice before bankruptcy courts in a given jurisdiction will be governed by the relevant state laws and rules prohibiting the unauthorized practice of law); Florida Bar v. Catarcio, 709 So.2d 96, 99 n. 1 (Fla.1998) (“[W]e disagree with his argument that 11 U.S.C. § 110 (1994), preempts this Court’s authority to regulate the unlicensed practice of law in Florida in the bankruptcy context.”).

We hold these unauthorized practice proceedings are not proscribed by 11 U.S.C. § 110 and therefore proceed to a determination of the merits of the charge.

II. Sufficiency of the Evidence.

This is an equity proceeding, so our review is de novo. Iowa R.App. P. 4. Sturgeon asserts the commission must prove the allegations of their complaint by a convincing preponderance of the evidence, citing Committee on Professional Ethics & Conduct v. Baker, 492 N.W.2d 695, 700 (Iowa 1992). Baker, however, was not an unauthorized practice case, so its standard of proof is not necessarily binding here. The commission, however, does not argue for a different standard of review, so for purposes of this appeal, we will assume the standard is a convincing preponderance of the evidence.

Iowa Court Rule 118A.1 authorizes injunctions against the unauthorized practice of law. The commission notes that this court has the inherent authority to define and regulate the practice of law, citing Baker. In Baker we approved the nonexclusive definition of the practice of law found in Ethical Consideration 3-5:

It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. However, the practice of law includes, but is not limited to, representing another before the courts; giving of legal advice and counsel to others relating to their rights and obligations under the law; and preparation or approval of the use of legal instruments by which legal rights of others are either obtained, secured or transferred even if such matters never become the subject of a court proceeding. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of professional judgment of the lawyer is the educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, nonlawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional judgment is required.

Iowa Code of Profl Responsibility EC 3-5; see also Baker, 492 N.W.2d at 701 (approving a similar version of this definition).

Sturgeon claims that he merely typed information, furnished by his clients, into preprinted forms. The commission, however, has a different view: Sturgeon solicited information to complete the forms, chose the forms to be used, rendered advice to his clients as to the information that would be required, and inserted the information obtained into appropriate blanks in the forms. In at least one case, Sturgeon actually drafted a pleading to be filed in the bankruptcy case.

Cases have drawn the unauthorized practice line at the point at which data entry (either by typewriter or computer) crosses the line between copying written information provided by the client and oral solicitation of the information necessary to fill out documents selected by the preparer. See, e.g., Hastings v. United States Trustee (In re Agyekum), 225 B.R. 695, 702 (R.A.P. 9th Cir.1998) (“Soliciting information from a debtor which is then typed into [bankruptcy] schedules constitutes the unauthorized practice of law.”); Farness, 244 B.R. at 472 (use of preprinted bankruptcy forms or bankruptcy software that automatically places solicited information in appropriate schedule does not save preparer from engaging in the unauthorized practice of law); In re Kaitangian, 218 B.R. 102, 110 (Bankr.S.D.Calif.1998) (“Plugging in solicited information from questionnaires and personal interviews to a pre-packaged bankruptcy software program constitutes the unauthorized practice of law.”); In re Bachmann, 113 B.R. 769, 774 (Bankr.S.D.Fla.1990) (“[Preparer] engaged in the unauthorized practice of law when he solicited information from [his clients] which he reformulated and typed into their bankruptcy petition ... [but] ‘[t]yping services’ ... may type bankruptcy forms for their clients, provided they only copy the written information furnished by [their] clients.”); Catarcio, 709 So.2d at 98, 100 (finding preparer to be engaged in unauthorized practice of law by “taking information from [client] orally to complete the bankruptcy petition and amendment” and enjoining preparer from “making inquiries and answering questions as to the particular bankruptcy forms that might be necessary, how best to fill out the forms, the information necessary to complete the forms, and where to properly file such forms”); see also Gabrielson, 217 B.R. at 827 (“It is possible that in other cases, in other situations, where a particular document preparer ... only takes the official forms and types them based upon handwritten or printed information from the debtor, the assistance would not be the unauthorized practice of law.”).

Sturgeon conducted an initial interview to solicit information, which he then typed into the computer. He also advised clients to bring certain information with them to the interview. He stated, “I believe at least I can provide a service to minimize the occasion of pro se debtors in bankruptcy who fill [documents] out incorrectly or who perhaps don’t know that they also have to file a statement of financial affairs or will only file this set of documents and not that one.” Clearly, Sturgeon counseled clients on which documents they needed to file, and this has been held to be the practice of law. See Bachmann, 113 B.R. at 773 (“[S]eeretarial services may not make inquiries nor answer questions from their clients as to ... the particular forms which might be necessary .... ” (citing Florida Bar v. Brumbaugh, 355 So.2d 1186, 1194 (Fla.1978))).

Sturgeon’s own testimony established that he did more than merely fill in blanks in computer-generated forms. It is clear he drew on his knowledge and experience in bankruptcy matters. He testified:

Quite some time ago I learned that people were able to purchase what I call store bought forms and in their own feeble attempts to fill them out, do that themselves and file them in bankruptcy....
In any event, when I learned that people could do these on their own and screw them up, I then began looking into that and found Title II Section 110 ... authorizes non-attorney preparation of bankruptcies.
I made a decision that — because I would at least from having some years of experience at it — know better how to fill out forms than some people, that I could perform a service.
... When I fill those forms out, for example, I believe at least I can provide a service to minimize the occasion of pro se debtors in bankruptcy who fill them out incorrectly or who perhaps don’t know that they also have to file a statement of financial affairs or will only file this set of documents and not that one.
I just believe that people are better served by an affordable bankruptcy preparer who has — at least has experience of knowing where the clerk’s office is at and what [the bankruptcy clerk] requires in terms of what forms and in what order.

He further testified:

There are other sources and resources where laypeople can obtain information and forms. My function is merely providing that same thing without exercising legal judgment, but in a skilled and experienced way. Clerically, I am doing this.

(Emphasis added.)

In Baker the respondent lawyer had cooperated with a nonlawyer in the marketing of living-trust materials, and he was accused of aiding in the unauthorized practice of law. 492 N.W.2d at 702. The issue was whether his nonlawyer associate was “practicing law” within the meaning of EC 3-5. Under facts very similar to the present case, we held the nonlawyer was practicing law:

From the evidence in this case it is clear that [the nonlawyer’s] actions met one of the practicing law tests articulated in EC 3-5: “approval of the use of legal instruments by which legal rights of others are either obtained, secured or transferred.” [The nonlawyer] met with the clients. He advised them about what they needed in the way of estate planning. He advised them in particular about what documents they would need and how those documents would need to be tailored to meet their particular situation. In the words of one [unauthorized practice commission] investigator, by the time the clients got to Baker “it was a done deal.” Baker was merely a scrivener. [The nonlawyer] had already made the major decisions; he, rather than Baker, was exercising professional judgment. The “smoking gun” on this point is found in the supplemental 'financial planning letter. This document acknowledges that the financial planning letter and related instruments were recommended by [the nonlawyer].

Id.

In at least one case, Sturgeon actually prepared a pleading in response to an objection filed to his client’s discharge in bankruptcy. This answer proceeded to admit or deny, in order, each paragraph of the complaint. The answer then included the following legal reasoning: The statute relied upon by the complainant did not apply as alleged, “since [the client] neither waived discharge in the previous case, nor was I denied discharge under [the statute]. In fact, as may be seen by the attached Exhibit ‘A,’ ... I was granted a discharge in that previous case.” The answer concluded:

The current complaint is based however, upon § 523(a)(10), which expressly excludes from discharge debts from a previous case “... in which the debtor waived discharge, or was denied a discharge under section 727(a) ...” If Congress had intended the same result as to debts from a previous case in which discharge was granted and later revoked, Congress would have said so. By the plain language of the statutes, § 523(a) does not preclude discharge of any of the debts listed in my current schedules.

This answer clearly shows Sturgeon drew on his experience as a lawyer in drafting it.

For some reason, the commission did not call the client for whom the answer was drafted, or any other clients, to develop the record further as to the extent of Sturgeon’s involvement in their cases. Nevertheless, the record supports a conclusion that Sturgeon’s assistance in the preparation of bankruptcy documents went far beyond the role of a scrivener and constituted the unauthorized practice of law. This included his participation in the selection, preparation, and filing of the bankruptcy forms, and the advice rendered to his clients.

III. The Vagueness Challenge.

Sturgeon raises a vagueness challenge to our unauthorized practice rules, claiming he is unable to discern the limits on his involvement in bankruptcy matters. It is true that, by its nature, the “practice of law” has not been precisely defined. We have said

the practice of law includes the obvious: representing another before the court. But the practice of law includes out-of-court services as well. For example, one who gives legal advice about a person’s rights and obligations under the law is practicing law. Or one who prepares legal instruments affecting the rights of others is practicing law. Or one who approves the use of legal instruments affecting the rights of others is practicing law.

Baker, 492 N.W.2d at 701.

Sturgeon argues that terms such as “before the court,” “legal instruments,” “prepares,” and “approves” are so broad he is “unable to discern what valid limits on his activities must be honored.” The broad definition of the practice of law in EC 3-5 and cases such as Baker would mean that only a lawyer could be a bail bondsman or transact the sale of a motor vehicle, according to him.

To pass a vagueness test a statute must be “ ‘set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ ” Arnett v. Kennedy, 416 U.S. 134, 159, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15, 36 (1974) (quoting United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796, 816 (1973)).

The Florida Court of Appeals applied this test in an unauthorized practice case and concluded:

[T]he definition of the practice of law in Florida is not confined to the language in [the unauthorized-practice-of-law statute], but, rather, is shaped by the deci-sional law and court rules as well as common understanding and practices. In deciding whether the [defendants] ... received fair and adequate warning of what activities constitute the practice of law and, thus, are proscribed to unlicensed and unauthorized individuals, we find the decisional law instructive and enlightening....
The quoted comment [from Brum-baugh, stating “it is somewhat difficult to define was constitutes the practice of law in all instances”] was not intended, and should not be construed, to suggest that the practice of law cannot be defined or that an attempt to interpret [the unauthorized-practice-of-law statute] must involve guesswork and chance. Instead, the court acknowledged the reasonable notion that an inflexible, permanent definition is simply impracticable. Were we to adopt the [defendants’] suggestion that the need for flexibility in definition renders a statute void for vagueness, the State would be effectively precluded from establishing minimum qualifications for practice in the regulated and licensed professions and occupations. The law is clearly established that the states have a compelling interest in the regulation of the practice of the professions and, particularly, in the setting of minimum standards for entry into the practice of law. Having considered the provisions of [the unauthorized-practice-of-law statute], in conjunction with the pertinent case law and rules interpreting it, we conclude the law regulating the practice of law is “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” Arnett, 416 U.S. at 158, 94 S.Ct. at 1646.

State v. Foster, 674 So.2d 747, 750-52 (Fla.Dist.Ct.App.1996) (other citations omitted).

While the practice of law necessarily defies a precise definition, we do not believe Sturgeon was forced to guess whether he was crossing the line. The record establishes he performed services that any reasonable person in his position would understand to be the practice of law. Furthermore, we have said our rule on the unauthorized practice of law resolves problems of fair notice by authorizing the commission to seek injunctions. The subject of such an injunction would then be on notice of what specific conduct is prohibited before that person is punished. Baker, 492 N.W.2d at 704. If the subject of an injunction believes such an injunction was issued in error, he can always seek appellate review of such an injunction, which is precisely what happened here. Accordingly, we reject Sturgeon’s vagueness challenge.

IV. Scope of the Injunction.

The district court order stated the respondent

is hereby permanently enjoined from engaging in those activities which constitute the practice of law including but not limited to—
a. Preparation of bankruptcy documents including bankruptcy petitions, schedules, statements of financial affairs, and other required information;
b. Preparing documents for others in connection with judicial proceedings;
c. Preparing or approving the use of legal instruments by which legal rights of others are either obtained, secured, or transferred;
d. Giving legal advice to others relating to their legal rights and obligations under the law; or
e. Otherwise providing advice or services which constitute the practice of law.

Sturgeon contends this prohibition is too broad, stating:

Trial Court did not fashion its remedy by narrowly drawing injunctive limitations designed to meet a legitimate state interest. Sturgeon is restrained by Trial Court’s decree from accepting employment as a real estate salesperson. Sturgeon could not, under this decree, accept a position as a typist or word processor for an employer such as a law firm. Trial Court’s decree would prevent Sturgeon from becoming a used car salesperson or an employee of H & R Block during tax season. Sturgeon would have to toss his notary seal into the trash under this broad decree.

Sturgeon’s reading of these prohibitions is too broad. Nothing in the district court’s opinion, in our own court rules, or in our cases would prevent his employment as a salesperson, typist, word processor, notary, or tax preparer.

We believe Baker and the other eases discussed make it clear that filling in blanks as a typist or word processor does not cross the line and does not constitute the practice of law. That line is crossed, however, when a preparer furnishes advice as to what forms should be used and what information should be inserted in the forms. It certainly is crossed when he drafts a legal document such as an answer to a complaint, as Sturgeon did.

We affirm the district court’s order with this modification: Paragraph one should read, “Except as expressly allowed by this opinion with respect to bankruptcy matters or by the rules of this court, including court rule 118A.3 (limited real estate practice), the respondent LeRoy James Sturgeon is hereby permanently enjoined from.... ”

In all other respects the injunction order is affirmed.

AFFIRMED AS MODIFIED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . Sturgeon contends the district court erred in referring to a license revocation because there was no evidence in the record concerning it. The Unauthorized Practice Commission’s complaint, however, asserted Sturgeon was disbarred, and in Sturgeon's answer, he admitted it. That matter is therefore established. It is relevant to help show Sturgeon drew on his legal experience in drafting a pleading, an issue addressed below.