UNAUTHORIZED PRACTICE OF LAW

A lawyer defending a man accused of burglary tried this creative defense: 'My client merely inserted his arm into the window and removed a few trifling articles. His arm is not himself, and I fail to see how you can punish the whole individual for an offense committed by his limb.'

'Well put, ' the judge replied. 'Using your logic, I sentence the defendant's arm to one year's imprisonment. He can accompany it or not, as he chooses.'

The defendant smiled. With his lawyer's assistance he detached his artificial limb, laid it on the bench, and walked out.

How many times have you read or heard a joke about lawyers?

Despite how people may feel about lawyers, the truth is people commit crimes, innocent people are wrongly accused, there are accidents, divorces, and wrongfully terminated. The list is limitless and assistance must be given.

Many people don’t know who to go to, cannot afford an attorney, or may have issues of trust.

So I ask you to consider, why should the practice of law be limited to lawyers, why can’t just anyone give advice based on their opinion?

The reason is that lawyers receive specific education governed by decisions based on a collection of rules prescribed under the authority of the state or nation.

Lawyers are licensed professionals after satisfying certain state requirements.

Lawyers are problem solvers, we are taught to investigate and analyze facts

If someone decides to get advice from a person who may have legal knowledge, such as a paralegal, instead of a lawyer, and such advice is given, the person may have a serious problem with UPL - Unauthorized Practice of Law.

We looked at some of the sanctions that might be imposed e.g. South Carolina - up to 5 years and it is a felony. The punishments do vary, but it is a crime.

The benefits of using a lawyer ensures the public is best served by maintaining the high standards of quality achieved by self-regulation of the legal profession 

Only licensed lawyers are subject to regulations under the ethical considerations, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.

However, there are states that are extending the right to undertake tasks that we used to call “practicing law” to non-lawyers but in limited circumstances

The activities that constitute the unauthorized practice of law are subject to the interpretation of each state.

As a result, this causes a major problem as there is no universal standard.

Our society needs more legal advice but unfortunately more people can’t afford it

Think about historically what circumstances are considered by the courts in determining if there has been unauthorized practice whether an unlicensed person is engaged in an activity

• One traditionally practiced by lawyers;

• One “commonly understood” to involve the practice of law;

• Requires legal skill or knowledge beyond that of a layperson;

• Characterized by the personal relationship between lawyer and client; or

• When public interest is best served by limiting performance to those who are lawyers

Rules:

 What is Model Rule 5.5?

A lawyer shall not:

(a)Practice in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b)Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

ABA Model Code EC 3-5 also bears significance

It states that it is neither necessary nor desirable to attempt the formulation of a single specific definition of what constitutes the practice of law.

Do not forget who is served by the Model Rules as adopted into state law

Lawyers by telling them not to practice law in any jurisdiction where they can’t

Can a lawyer who is licensed in State A practice law in State B?

Not unless the lawyer gets permission from a State B court to practice before it, if not, the lawyer is committing UPL

If the lawyer was licensed in State A but has been suspended or disbarred and continues to practice law in that state there are still issues of UPL even if no fee is charged

The NFPA Model also has a Code

It admonishes only that each paralegal is responsible for complying with legal authority governing the unauthorized practice of law in his or her jurisdiction

NALA position on UPL is stricter than that of NFPA because of the difference in their definitions of what a paralegal is

You are only a paralegal if you are assisting a lawyer according to NALA

Under the NFPA, the paralegal may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work. The NFPA definition leaves room for what was once called a “legal technician”

(i.e., a non-lawyer who delivers legal services directly to the public) because it does not require that the legal work be performed at the behest of a lawyer

Think about some examples of unauthorized practice of law for a paralegal

• Giving legal advice

• Creating legal documents

• Representing others in court

Think about the discussion board and where the line was drawn for UPL by giving legal advice

The application of a rule of law to a specific person’s fact pattern and giving an opinion or conclusion when you are not a lawyer

There are, of course, exceptions to the prohibition on the practice of law by non-lawyers;

Self-representation - The right of self-representation in federal courts Law students - The California Supreme Court held in 1979 that valuable practical training and increasing the availability of legal services for indigent people were strong enough reasons to permit “limited practice of law” by law students, providing they are properly supervised.  States vary immensely as to in what area and under what circumstances law students may practice law 

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Administrative agencies An overwhelming majority of federal agencies permit lay representation

(i.e. National Credit Union Administration, Food and Drug Administration, Immigration and Naturalization Service)

Do states have authority to say who can represent others before federal agencies?

No. It is federal so the federal government sets the rules

There are activities that are considered incidental to activities, typically conducted by non-lawyers that are not considered the unauthorized practice of law

These activities are performed by lay people in the course of business that would ordinarily be considered the practice of law but are incidental to functions properly performed by them are exempt from UPL prohibitions

Let’s look at the conduit theory in ‘giving legal advice’

The paralegal is simply acting as a conduit of the legal advice from the lawyer to the client such as “call client X and tell her…. Or if the lawyer had written the advice in a letter and sent it to the client

What would you do, as a paralegal, if you have been instructed in what to say to one client in one circumstance and would now like to give that same advice to a different client in a similar circumstance?

In certain circumstances, it may be perfectly all right to give the advice to the client and in others it may not.

There are kits available to help you with a divorce and, at most, offer only general advice on common problems for simple divorces, so they cannot constitute the unauthorized practice of law.

If you were giving legal advice to specific individuals that would be ok. However, if you do that in conjunction with the sale of the kit, then UPL was committed

It would be acceptable in circumstances to say, “This is what I think the answer is, but I’m going to check with a lawyer and if the answer isn’t right, I’ll call you back.”

Corporations present a special problem because they are not “persons” as we traditionally think of them.

What is your impression on corporations utilizing the right of self representation?

Actually, They cannot

There are some states that permit non-lawyer employees to represent a corporation.

That is usually because small claims court is a place where non-lawyers should be litigating, not lawyers

An employee of a corporation doesn’t really have a “client” in the typical sense of the word—just other employees.

Why do you think paralegals working in corporations face interesting UPL problems?

They are typically not working under the supervision of lawyers

If legal advice is given, do you think it would be UPL?

No, to commit UPL, the offender has to have a client

Both lawyers and non-lawyers can make mistakes that ultimately harm the client but how would they differ?

(1) Lawyers have the authority to correct the error;  (2) Lawyers can be sued for professional negligence whereas most non-lawyers cannot; and

(3) Where there is a pattern of below-standard legal work, lawyers may be subject to discipline but non-lawyers are exempt from state bar disciplinary actions.

What are some ways lawyers violate the regulations that prohibit their aiding the unauthorized practice of law?

1. Improperly supervising their employees and associates (including improper delegation),

2. Entering into an improper business relationship with a non-lawyer (including splitting fees), or

3. Allowing (or helping) a non-lawyer to misrepresent the non-lawyer status

If you wrote responses to interrogatories but your draft is never reviewed by a lawyer, how would you be effected?

The lawyer who failed to review your work just helped you commit UPL

A lawyer cannot ask the paralegal to sign his name to a pleading

What if the paralegal is asked to do so?

It is the responsibility of the non-lawyer to say “no” to a lawyer who tries to delegate an improper task

Let’s address improper division of fees and how it is UPL

Legal decisions are supposed to be made by lawyers as they are “trained in the law and bound by the rules of professional responsibility.”

If a non-lawyer has the opportunity to be paid part of the fee from a case, he might be tempted to solicit clients or engage in UPL. Paying a paralegal a percentage of legal fees is “fee splitting.”

With that being said, can the paralegal receive a bonus?

Only if it is not based on a percentage of law firm profits or on a percentage of particular legal fees

“Profit-sharing” plans such as 401Ks or other compensation or retirement plans would not be affected as long as the amount of money doesn’t appear to be tied to one case.

*Splitting annual profit is okay but splitting the profit from one case is not

A partnership, professional corporation, or other association that includes lawyers and non-lawyers that provides both legal and non-legal services is considered to be a multidisciplinary practice

Since it contains multidisciplinary practices, do you think they could split fees?

At present, the ethics and unauthorized practice of law rules in every state (except the District of Columbia) forbid lawyers from sharing fees or entering partnerships with non-lawyers

Here are some general guidelines that help ensure non-lawyers will not be mistaken for lawyers:

1. Paralegals have responsibility for identifying themselves as non-lawyers while lawyers do not have any obligation to tell people they are lawyers 2. Paralegals can have business cards identifying them as being employed by a law firm or other entity but, again, the card must identify them as a paralegal or legal assistant.

(Make sure that your business card does not imply that you are an “associate” with the firm.)

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3. Most states allow paralegals to sign correspondence to clients on firm stationery when the letter contains no legal advice and when the letter is a standard one. Your designation or title should always follow your name. 4. Paralegals can be listed on letterhead stationery in some jurisdictions when accompanied by the paralegal designation 5. Paralegal names cannot be listed on the door of the office or in advertisements for the firm in most states

The most widely used methodsof enforcement of the unauthorized practice regulations are injunction, criminal prosecution, citation for contempt of court, and writs of quo warranto

Would you be able to define Quo warranto?

It is Latin for “by what authority”

Quo warranto writs are used to restrain corporations from exceeding their chartered purposes

Some states have increased the level of UPL to felony to show how serious they are about clamping down on illegal practices

Who is in charge of initiating the proceeding for an injunction?

Many states allow suits by the integrated bar. Those states that allow class actions by lawyers require a showing of irreparable injury or some proof that the lawyers represent the public interest.