Week 8

• California Business and Professions Code sections 6450-6452

• 6450: Notwithstanding subdivision (a), a paralegal shall not do the following:

• (1) Provide legal advice.• (2) Represent a client in court.• (3) Select, explain, draft, or recommend the use

of any legal document to or for any person other than the attorney who directs and supervises the paralegal.

• It is unlawful for a paralegal to perform any services for a consumer except as performed under the direction and supervision of the attorney, law firm, corporation, government agency, or other entity that employs or contracts with the paralegal. Nothing in this chapter shall prohibit a paralegal who is employed by an attorney, law firm, governmental agency, or other entity from providing services to a consumer served by one of these entities if those services are specifically allowed by statute, case law, court rule, or federal or state administrative rule or regulation. “Consumer” means a natural person, firm, association, organization, partnership, business trust, corporation, or public entity.

• (a) It is unlawful for a person to identify himself or herself as a paralegal on any advertisement, letterhead, business card or sign, or elsewhere unless he or she has met the qualifications of subdivision (c) of Section 6450 and performs all services under the direction and supervision of an attorney who is an active member of the State Bar of California or an attorney practicing law in the federal courts of this state who is responsible for all of the services performed by the paralegal. The business card of a paralegal shall include the name of the law firm where he or she is employed or a statement that he or she is employed by or contracting with a licensed attorney.

• (b) An attorney who uses the services of a paralegal is liable for any harm caused as the result of the paralegal's negligence, misconduct, or violation of this chapter.

• (a) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record.

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

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 or otherwise authorized to act)

Traditionally done by lawyers “commonly understood” to require the legal

skill of a lawyer Requiring legal skill and knowledge beyond

that of a layperson

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

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.

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.

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.

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

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

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

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.

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

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

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

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.

Paralegal services◦ Typing services

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

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.”

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

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”

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.

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

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

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

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

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

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

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

California (Legal document assistant) calda.org

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

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

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”

We are always balancing the need of the public to have access to affordable legal services

with

The need of the public to be protected from unqualified or unethical people

CA Legal Document Assistants are issued an identification card when they register. The front of the card, above the title, must also contain the following statement in 12-point boldface type: "This person is not a lawyer." The contract between LDA and client must also have that wording.

NALA Paralegals shall:

(1) Disclose their status as paralegals at the outset of any professional relationship with a client, other attorneys, a court or administrative agency or personnel thereof, or members of the general public.

Canon 7: a paralegal’s title shall be fully disclosed

(See the entire canon)