ETHICS – UNIT 7 LECTURE 1

The Unauthorized Practice of Law

The purpose of lecture: Distinguish activities that only lawyers

can perform from activities that paralegals may perform

Identify business relationships that create the unauthorized practice of aw

Locate state statutes, rules, and cases related to the unauthorized practice of law

To become a lawyer, one typically

Graduates from a 4 year college and then a three year law school

Passes a “bar examination” Is checked for “good moral character”

To practice law, one:

Does not have to be an “intern” or an “apprentice”

Can just get sworn in and start doing it. (maybe that’s why they call it “the practice

of law”…) Just has to continue to pay bar dues and

stay out of trouble

Should the practice be restricted? Public policy concerns

Need people who are educated in law Need people who are licensed

Shows a minimum amount of competency Need people who can be disciplined

What is “the practice of law”

The application of a rule of law to a particular person’s facts and giving a response

Recognizing the Unauthorized Practice of Law The Unauthorized Practice of Law

Practice (doing something) Law (in the courts, administrative law

system, or otherwise in the legal system) Unauthorized (by someone who is not

licensed to practice law)

Historical view of UPL

Traditionally done by lawyers “commonly understood” to require the

legal skill of a lawyer Requiring legal skill and knowledge

beyond that of a layperson Characterized by the relationship

between lawyer and client

Modern view of UPL – 2 parts Improper to practice law without a

license This one gets you in trouble

Improper to assist someone who doesn’t have a license in the practice of law This one gets your boss in trouble

The glasses we need to use:

UPL issues need to be viewed from 1. The point of view of the person asking for

legal advice 2. The point of view of the person giving

the legal advice.

Why do we need glasses?

Example: Your Aunt Bea asks you for some advice on her will. She knows you are attending paralegal school. If you answer, you are committing UPL – because she asked for your help relying on your legal knowledge.

If she asks her bridge partner for the same advice, that person does not commit UPL.

What the glasses did:

UPL occurs when the person is seeking legal advice from a person who he knows has legal knowledge but who is not a lawyer.

UPL doesn’t occur when the person is seeking an uneducated opinion.

Traditional categories of UPL

1. Representing others in court2. Giving legal advice3. Creating legal documents

One at a time

Obviously, a non-lawyer cannot stand up in front of a judge and argue a motion or question a witness. This is true of both criminal and civil courts. (watch for the exception for

administrative courts coming up)

1. Representing others in court

2. Giving legal advice

Obviously, non-lawyers cannot legally open a law office, take clients, give them advice about legal matters

Giving legal advice, remember, is: The application of a rule of law to a particular person’s facts and giving a response

3. Creating legal documents

Obviously, paralegals are used to “create” legal documents.

However, only a lawyer can sign those documents.

By signing the document, the lawyer “adopts it as his own.” So, now it is no longer a document “created”

by a non-lawyer. Go figure. Ex:

http://www.utcourts.gov/resources/rules/urcp/urcp011.html

Traditional exceptions to UPL

1. Representing yourself2. Law students3. Some administrative agencies4. The incidental-to rule5. The conduit theory

is a right guaranteed by the Constitution

It is not UPL because you are representing yourself, not someone else But, be aware, self representation does

not include you representing your spouse or your company

1. Self-representation

2. Law Students

It is commonly recognized that, in order to become good lawyers, law students should “practice” practicing law.

It is not UPL because they are closely supervised by lawyers, especially when representing others in court

3. Some administrative agencies Admin Agencies get to write their own

laws They have their own court system So, they get to say who can “practice” in

their courts Some intentionally allow “lay practice”

because it is beneficial to them and to the public

4. The incidental-to theory

Some businesses practice some little bit of law as incidental to their primary business Example – banks will tell you that a certain

type of account is “tax free.” That is tax advice, but not UPL

Example – insurance companies will tell you that certain provisions will protect your heirs from inheritance tax. Again, tax advice, but not UPL

5. The conduit theory

If a person is a conduit of legal advice, it is not UPL Example: a lawyer tells a paralegal to call

Client X and tell him [legal advice]. The paralegal is simply repeating the advice – as if it was written in a letter. The paralegal is just the conduit -- the method of conveying the legal advice.

Asking Questions

Help the client Listen Ask questions Take notes Promise to communicate

Ask a lawyer Communicate with the client

Where it starts to get slippery… Paralegal services

Typing services Kits and books Representing corporations/companies Simple communication with the court Repetitive answers

Paralegal Services

It is nearly impossible to help people without crossing the UPL line

Some states allow a limited amount of “help” Ex: California’s Legal Document Assistant

Still contains a caveat: cannot practice law Ex: Arizona’s Document Assistant

Still contains “Legal Document Preparers may provide general legal information but may not give legal advice.”

Typing services

Straight up typing what the client tells you to type is not UPL

But you cannot choose a form or explain a question on the form without crossing the UPL line

Kits and Books

A few states have prosecuted for UPL but as kits and books give generic advice, they are not UPL

Remember our definition of practice of law “the application of the law to a person’s facts and giving a response”

Corporations and companies Self representation only extends to

people Corporations have no right of self-

representation Some states allow Corporations to appear

via an officer when the corp is a defendant in small claims court. (Ex: Rule 282(b) Illinois Rules on civil proceedings)

That itty-bitty exception aside, corporations must be represented by a lawyer

Simple communication with the court Calling the court to deliver a message

is not UPL However, the attorney who sends a

paralegal to make an appearance to ask for a continuance (or any other administrative matter) is probably sending that paralegal to commit UPL

Repetitive answers

The worst (most frustrating?) problem facing paralegals in the workplace

The client asks a question You know the answer (it is legal advice) But you cannot respond Remember our UPL definition

Improper business relationships An area where lawyers inadvertently

help non-lawyers commit UPL It is improper for a lawyer to be in a

business relationship (partnership, LLC, corporation) with a non-lawyer if that organization will be practicing law

Non-lawyers cannot have an ownership interest in a law firm

Let’s find your state law – backwards from the end

Improper business relationships: Rule 5.4(b)* Search term: “professional independence of

a lawyer” + [your state name]

*if your state uses the same numbering system as the ABA

Repetitive answers

Search term “unauthorized practice of law” + [your state name]

Ex: “unauthorized practice of law” + texas = http://www.txuplc.org/ where you will learn all about that state’s law of UPL

78A-9-103.   Practicing law without a license prohibited -- Exceptions.

       (1)  Unless otherwise provided by law, a person may not practice law or assume to act or hold himself out to the public as a person qualified to practice law within this state if he:       (a)  is not admitted and licensed to practice law within this state;       (b)  has been disbarred or suspended from the practiced of law; or       (c)  is prohibited from doing so by court order entered pursuant to the courts' inherent powers or published court rule.       (2)  The prohibition against the practice of law in Subsection (1) shall be enforced by any civil action or proceedings instituted by the Board of Commissioners of the Utah State Bar.       (3)  Nothing in this section shall prohibit a person from personally and fully representing his own interests in a cause to which he is a party in his own right and not as an assignee.

Utah

 

Representation of corporations

Illinois Rule 282. Commencement of Action--Representation of Corporations

(b) Representation of Corporations. No corporation may appear as claimant, assignee, subrogee or counterclaimant in a small claims proceeding, unless represented by counsel. When the amount claimed does not exceed the jurisdictional limit for small claims, a corporation may defend as defendant any small claims proceeding in any court of this State through any officer, director, manager, department manager or supervisor of the corporation, as though such corporation were appearing in its proper person.

Kits and Books

Nolo Press prosecuted for UPL in Texas*

Generic advice is not UPL

* http://www.nolo.com/pr_date.cfm/ObjectID/1A8281D7-40DA-45B8-ADF0E37CC58533B0/returnTo/PRbyCat

Typing services

Florida State Bar vs. Rosemary Furman Typing is okay; Giving advice is not

Paralegal Services

Check your state law on whether non-lawyers can assist members of the public in any way.

California (Legal document assistant) calda.org

Arizona (http://www.supreme.state.az.us/cld/ldp.htm) (Arizona Code of Judicial Administration Section 7-208)

Washington (limited practice thru voluntary registration

Michigan http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=795

There’s no way around it…

Choosing a form is applying knowledge of the law to a person’s facts

Explaining how a person should complete a form is applying knowledge of the law to a person’s facts

Showing a specific law or book to a person is applying knowledge of the law to a person’s facts

Lawyers help you UPL

By not supervising paralegals By delegating tasks that should not be

done by paralegals By entering into improper business

relationships with paralegals By dividing fees with paralegals

Lawyers help you UPL cont.

By giving you a business card that does not designate your paralegal-ness properly

By failing to introduce you as a paralegal By trying to look like a bigger firm and

calling you “an associate”

Another look at research

Your search terms look something like:“unauthorized practice of law” + [your state name]

If you find a document, article, or whatnot, skim it for the statute or rule you are looking for

Copy and paste the statute or rule into your browser. That’s how I found the following:

What are the penalties for UPL?

In South Carolina, the practice of law without a license is a felony. See S.C. Code § 40-5-310 (“No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.”).

Alabama § 34-3-1. Unlawful practice of law

If any person shall, without having become duly licensed to practice, or whose license to practice shall have expired either by disbarment, failure to pay his license fee within 30 days after the day it becomes due, or otherwise, practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of a misdemeanor and fined not to exceed $500.00, or be imprisoned for a period not to exceed six months, or both.

What are the penalties for UPL? Check your state law: Idaho Code § 3-

420 provides misdemeanor criminal penalties for. the unauthorized practice of law

Wisconsin Stat. sec. 757.30

Every person, who without having first obtained a license to practice law as an attorney of a court of record in this state, as provided by law, practices law within the meaning of sub. (2), or purports to be licensed to practice law as an attorney within the meaning of sub. (3), shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.

Who will prosecute for UPL?

District attorney State Bar Private law firms: Richard F. Mallen &

Associated Ltd. v. Myinjuryclaim.com Corp, Ill. App. Ct. 1st Dist, Np. 1-00-2912 (April 18, 2002).

Have ya ever wondered why? Why is the practice of law restricted to

lawyers? To protect the public

By requiring certain education By requiring an exam By requiring “good moral character”

Some resources for UPL

South Carolina

Alabama Arizona Colorado*

www.scbar.org/upl. www.alabar.org/public/upl.cf

m www.myazbar.org/LawyerReg

ulation/upl.cfm http://

www.coloradosupremecourt.com/Regulation/UPL.htm* Provides a list of people ordered

to stop committing UPL

Looking for a list of UPL?

Forget it – there is no list of activities that paralegals can’t do

Use the test: have you taken a particular person’s facts, applied your knowledge of the law, and provided some sort of response? Yes? Ooops! UPL on you!

Here’s a little start of a list from Arizona www.myazbar.org/LawyerRegulation/upl.cfm

References:

www.paralegalethics.net/Presentations/Ethics%20-%20Chapter_2_UPL.ppt

Unit 7: Ethics, Regulation, and Licensure:

  In this unit, you will read about criminal procedure and administrative law: Cheeseman & Goldman – chapters 2 and 3. Additional web resources about the Regulation of

Paralegals. Discuss what you have learned on the

Discussion Board. Attend lectures 1 and 2 to further explore the

concepts in this unit. Take a short Quiz. All assignments are due by 11:59 p.m. ET

on Tuesday.