UPL IS A CRIME!

THE UNAUTHORIZED PRACTICE OF LAW:

Legal Professionals and Notaries

The unauthorized practice of law (UPL) is a crime.  And if you’ve ever studied for the California Notary Exam or the CCLS Exam, then you’ve probably heard that quite a bit.  In a recent session of the CCLS Online Study Group, we were discussing this very issue and how it can impact us as notaries, legal assistants, and paralegals.  That discussion moved me to write this article.

So, what exactly does the “unauthorized practice of law” mean?  I used to think that it was just someone who held themself out to be an attorney when they never actually passed a bar exam.  While that is true, it is much more than that.  The California State Bar’s definition of the unauthorized practice of law is “When someone who is not licensed to practice law provides services that can only be performed by attorneys, that is called the unauthorized practice of law (UPL).”  California Business and Professions Code section 6125 puts it very simply: “No person shall practice law in California unless the person is an active licensee of the State Bar.”  California Business and Professions Code section 6126 states that

“. . . not only is it illegal to practice law in the state without a California license, but it is also illegal to hold yourself out as a licensed attorney without holding a license – even if you don’t engage in the practice of law.”  So, just the act of advertising yourself as authorized to practice law, even if you haven’t performed any legal work, is enough for a possible conviction under these statutes, possibly resulting in one year in prison and $1,000 fine for each count.  If you are disbarred and continue to practice law, the penalty could increase to three years in prison for each count.

But what exactly is the ‘practice of law’?  While definitions vary by state, The American Bar Association generally defines it as “the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law.”  In its most general sense, the practice of law includes representing clients in court or negotiations, consulting with potential clients, and giving legal advice, as well as preparing legal documentation.

So now you may be asking how this impacts you, as a non-attorney legal professional.  But as legal support professionals, it is very important that we are aware of these laws and statutes.  It is our duty and ethical obligation to abide by these laws and regulations, as we can also be criminally prosecuted or sued for civil liabilities based on our actions, not to mention the potential damages that your firm may suffer because of your actions, and the probable loss of your job.  It is also our moral and ethical duty to report the unauthorized practice of law when we see it happening.

Here is a list of common examples of UPL:

• A man advertises basic legal services like wills and contract reviews online but doesn’t hold a license. Even if he gets no clients, he has still broken the law by advertising services he isn’t qualified to perform;
• To meet a deadline, a paralegal unlawfully files a legal claim on behalf of her boss, a licensed attorney, who is out of town;
• A duly licensed attorney in another state provides legal services for California residents. It’s against the law because the attorney isn’t licensed in California;
• An attorney gets disbarred but continues to finish legal work already in process for her clients;
• A law student who has not yet passed the bar drafts legal documents for his friends for a small fee—or otherwise gives legal advice he is not authorized to provide.

Consequences for Engaging in UPL

You might be really surprised at how or when you might encounter the unauthorized practice of law.  Some of the most common professions at risk of engaging in the unauthorized practice of law are obviously paralegals, as well as realtors, accountants, and bankers.  For example, while it is usually allowed for a realtor, because of their specialized training, to prepare purchase agreements for his or her clients, in many states, it is not permissible for that realtor to give legal advice concerning title to the property or to represent his or her client in a legal dispute over that property.

Some tasks generally assigned to paralegals may, at first glance, appear to be the unauthorized practice of law.  For example, paralegals may use their knowledge of the law and legal procedures to assist attorneys in drafting legal documents and other law-related tasks.  However, as they are working under the direct supervision of an attorney, who is ultimately responsible for the paralegal’s work, they are merely assisting the attorney with their practice of law, and therefore, not engaging in the unauthorized practice of law.

The real controversy with paralegals and the unauthorized practice of law comes from independent paralegals, who do not work under the direct supervision of attorneys.  They are often in danger of committing the unauthorized practice of law.  Because while it is legal for them to sell legal forms and printed material drafted by attorneys, it is ILLEGAL for them to give any legal advice while doing so.  Legally, the paralegal is not authorized to suggest which forms a client may need or to advise them on how to fill out those forms, as that is legal advice, and the paralegal is not licensed to give advice.  It is very important for paralegals to know exactly how the unauthorized practice of law is defined in their state, and to make sure that their actions never meet that definition.

Another area of real controversy concerns notaries.  From the Notary Public Handbook,

The unauthorized practice of law means offering legal services without being licensed as an attorney.  Statutes, court opinions and ethics rulings from the state bar often define legal services in the following ways:

• Giving advice about a document a customer needs.
• Recommending the type of notarization required.
• Offering an opinion about the legality or effect of a document.

Only attorneys licensed by the bar in a particular state may perform these services, non-attorney Notaries may not.

While it may seem so easy to tell a customer which notarization you think they may need, it is illegal for you to do so.  The customer must decide.  And if the customer doesn’t know what type of notarization is needed, they must seek the advice of an attorney.

As you can see, as important as this is, many people really don’t know where the official line is drawn.  Sometimes it’s a little hard to tell.  While experienced paralegals and legal assistants may have the knowledge to perform certain tasks, it may be illegal for them to do so.  Likewise, it is sometimes hard for an attorney to know exactly what they are legally allowed to delegate and how much supervision is required.

And while the enforcement and consequences differ significantly by jurisdiction, both to attorneys as well as non-attorneys, it is typically under the control of the state judiciary.  But we can find a great deal of guidance from the American Bar Association’s Model Guidelines for the Utilization of Legal Assistant Services.  These Guidelines make it clear that attorneys are responsible for the work of legal assistants and paralegals working under their supervision.  If the work is strictly supervised, attorneys may delegate most tasks typically performed by attorneys.  However, there are three things that an attorney may never delegate to a legal assistant or paralegal:  establishing an attorney-client relationship; establishing the amount of fees to be charged for legal services; and rendering a legal opinion to a client.  Otherwise, the Guidelines are not detailed on the utilization of paralegals.  But until there is some sort of resolution on paralegal regulation and the role of the paraprofessional field, these guidelines, and those adopted by statute or local rules on the utilization of paralegals, may be the best resources for attorneys, paralegals, and legal assistants.  I encourage you to familiarize yourself with them.

Sources:

California Business & Professions Code §§6125 and 6126

California Notary Handbook

Pocket Guide to Legal Ethics, Angela Schneeman

California State Bar website  www.calbar.org)

American Bar Association website (www.americanbar.org)

Categorized in: Legal Procedure