Unauthorized Practice of Law
See Also:
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 criminally prosecuted!!
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. Any person 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 examples 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 ethical 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 often 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.
A lawyer is certainly entitled to delegate responsibilities to paralegals, clerks, interns, and others, but the lawyer must always supervise and accept responsibility for the work. Under the Model Rules, an attorney is required to exercise “reasonable care” to ensure subordinates act ethically. This is an affirmative obligation. A failure to supervise even those subordinates whom a supervisor trusts sincerely is a violation.
EXAMPLE: Knowing that he has an ethical obligation to ensure subordinates act ethically, young junior partner Houndh is always looking over the shoulder of his paralegal Purrfect. Purrfect has done her job well for thirty years and knows a whole lot more about the law than does Houndh. Purrfect is annoyed by Houndh and wants him to back off. Houndh realizes he has been overbearing and annoying and takes the opposite tack – he leaves Purrfect alone and stops reviewing her work completely. Is Houndh in error?
Houndh is required to exercise “reasonable care” to ensure Purrfect complies with rules. Even though he trusts Purrfect will do the job with excellence, Houndh still has an affirmative obligation to at least look over Purrfect’s work and lightly supervise. Failure to take affirmative steps to supervise is an ethical violation.
A lawyer will be responsible for another’s violation of the ethical rules if the lawyer orders or knowingly ratifies the violation, or, on finding out about the violation, the lawyer fails to take remedial steps at a time when its consequences could still be avoided or mitigated. These rules apply to a lawyer who supervises a non-lawyer, as well.
In some states, a lawyer is required to conduct a reasonable investigation prior to hiring a non-lawyer assistant to ensure the assistant will not engage in conduct that is incompatible with the obligations of a lawyer. This may entail checking references and obtaining moral character reports from former employers.
EXAMPLE: Attorney Chex was subject to discipline when it was discovered that his paralegal stole funds from the client trust. This is because Attorney Chex failed to properly investigate the background of his paralegal, who had previously been arrested and prosecuted for embezzlement.
A subordinate cannot absolve herself of responsibility for an ethical violation by claiming she was “just following orders.”