The Unauthorized Practice of Law

Terms:


“Scrivening”
Filling in the blanks of a standard form contract; differs from drafting in that only lawyers may draft a contract.

“Drafting”
Involves a determination of the rights and obligations of the parties involved in a contract, for example; may only be performed by a lawyer.


Without a doubt, paralegals and other non-lawyer assistants may be more talented and more knowledgeable than the attorneys that supervise them. Assistants are given tremendous responsibilities that require great skill. Nonetheless, as we will discuss, even the best non-lawyer assistants must be actively supervised by lawyers and, importantly, there are a host of tasks they must not ever perform. It is important to note that an individual engaged in the unauthorized practice of law may be prosecuted criminally. 

To be admitted to practice law as a member of a state bar, an individual must meet certain educational requirements (generally an undergraduate degree plus three years of law school), and pass a bar examination. State bars require a showing of “good moral character” as well. Anyone not meeting these requirements who performs the duties of an attorney is engaged in the unauthorized practice of law. 

Here’s a short list of activities that only lawyers may perform:

  • putting in appearances at court for a client
  • offering specific legal advice to an individual
  • conducting negotiations for settlement
  • drafting legal documents, other than just filling in blanks

Here’s a short list of activities that do not constitute the practice of law:

  • filling in the blanks of a standard form contract
  • preparing tax returns (without providing legal advice)
  • providing general information on estate planning 

The Model Rules also prohibit a lawyer from assisting a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law. 

EXAMPLE: Bartleby, a real estate broker, wants to help his boss by filling in a form contract for a client who plans on renting an extremely expensive luxury apartment. Even though Bartleby is not a lawyer, may he do this?

A non-lawyer may act as a scrivener, by filling in blanks in a standard form contract. A real estate broker such as Bartleby who is not a lawyer may fill in blanks in a standard real estate sales contract. 

Real estate brokers are generally entitled to fill in blanks on land purchase offers. In real estate cases where the unauthorized practice of law is at issue, courts assess the complexity involved in filling in the forms, as well as whether the broker charges a fee for the service. Charging a fee indicates that the service may be more difficult than routine, and that perhaps a lawyer should be involved. 

Some jurisdictions entitle real estate brokers to help their clients fill out standard-form financing arrangements and escrow agreements, as well as deeds. Generally, title insurance firms and escrow firms are entitled to fill in blanks on mortgages and deeds. 

Note that only admitted attorneys may draft a real estate sales contract. This is because drafting requires a lawyer’s insight into the rights and obligations of parties to a contract. 

It must also be noted that unauthorized practice rules do not apply to non-lawyers who represent themselves. In fact, criminal defendants have a right guaranteed by the United States Constitution to represent themselves in court. See Faretta v. California, 422 U.S. 806 (1975).