Unauthorized Practice of Law (UPL)

1. Unauthorized Practice of Law (UPL) Week 8

2. California Law • 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.

3. Section 6451 • 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.

4. Section 6452 • (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.

5. Section 6126 • (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.

6. What is “the practice of law”? The application of a rule of law to a particular person’s facts and giving a response

7. 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 or otherwise authorized to act)

8. 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

9. 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

10. 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.

11. 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.

12. 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.

13. Traditional categories of UPL Representing others in court Giving legal advice Creating legal documents

14. 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

15. 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

16. 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.

17. Traditional exceptions to UPL Representing yourself Law students Some administrative agencies The incidental-to rule The conduit theory

18. One at a time 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

19. 2. 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

20. 3. 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

21. 4. 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.

22. Where it starts to get slippery… Paralegal services Typing services Kits and books Representing corporations/companies Simple communication with the court Repetitive answers

23. 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.”

24. 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

25. 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”

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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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”

37. What are the penalties for UPL?

38. Looking for a list of UPL?

39. Access to Justice We are always balancing the need of the public to have access to affordable legal serviceswith The need of the public to be protected from unqualified or unethical people

40. And, for non-lawyers? 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.

41. And paralegals? 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.

42. NFPA Canon 7: a paralegal’s title shall be fully disclosed (See the entire canon)