UPL? Watch For These Red Flags!

Generally, the practice of law is defined as giving legal advice or opinions to others or representing others in legal matters. However, there is no single complete definition of the practice of law. Every state defines the practice of law by statute. These statutes, as well as the rules and cases that define the practice of law, are continually changing and evolving.

It’s interesting to note that an ABA task force specifically directed to prepare a model definition of the practice of law abandoned its task in March 2003. The members of the task force could not come to an agreement on the definition.

While the actual definition is difficult to pin down, one thing is certain: the unauthorized practice of law is a criminal offense and usually a misdemeanor. UPL does not apply only to nonlawyers who deliver legal services directly to the public. Attorneys can commit UPL. Paralegals working under the supervision of an attorney can commit UPL as well if they are not properly supervised, set fees, give legal advice or appear in court.

Attorneys must be licensed by the state where they practice law. An attorney who practices law outside the jurisdiction where he or she is licensed is committing UPL. Thus, if a client wants to transfer title to real property in Florida but the attorney is licensed to practice only in Minnesota, you should seek assistance from counsel in Florida.

Only attorneys may represent clients in court. While some administrative agencies allow nonlawyers to represent persons before them, this is not so with most courts. There was recently a case involving a New Jersey Attorney who actually sent his paralegal to a court hearing where she advocated for a client. The Disciplinary Review Board is urging censure for this attorney. This paralegal committed UPL while working under the supervision of an attorney. (See In the Matter of Neal M. Pomper, Docket No. DRB 08-237)

Only attorneys may set fees. Setting fees is an important step in establishing the attorney-client relationship. For this reason, only the attorney may decide what the client will be charged for his or her services. Even if there is a standard fee schedule, it is still up to the attorney to evaluate the case and set the fee. Nonlawyers may relay the information about the fees once the attorney provides that information.

Only attorneys may sign pleadings or correspondence that offers legal advice. Nonlawyers may sign correspondence that relays procedural information. An exception is the State of North Carolina where nonlawyers may sign pleadings in emergency situations.

Only attorneys may give legal advice. This includes directing or recommending a course of action with legal consequences (such as ‘You should accept the offer of $1500 offered by the cruise ship for your broken tooth.’); evaluating the probable outcome of a legal matter (such as ‘Your claim against XYZ corporation will probably net you a seven figure settlement.’) or interpreting statutes, decisions and legal documents.

Your challenge: Know that you may relieve the attorney of many duties. You may relay the attorney’s advice to the client, draft pleadings and do legal research that requires legal interpretation. In these situations, it is the attorney who makes the legal judgment. Your are involved only in the assessment of the situation and implementing the attorney’s decisions. Be sure to study case law in your jurisdiction and be familiar with the Rules of Professional Conduct, Ethics Opinions, and case law. Also, attend ethics courses annually so that you will be up to date on the latest ethics education. All of this knowledge will help prevent you from being involved in the unauthorized practice of law.

© 2009 Vicki Voisin, Inc.

Do you want to use this article in your newsletter, e-zine or website? You can, so long as you include this entire blurb with it: Vicki Voisin, also known as The Paralegal Mentor, publishes the bi-weekly ezine ‘Strategies for Paralegals Seeking Excellence’ where she offers tips for paralegals and others who want to create lasting success in their personal and professional lives. Get tips and information at no cost at www.paralegalmentor.com.