The Unauthorized Practice of Law Defined

The unauthorized practice of law is the term used to describe a non-attorney performing a task, which in accordance with the state bar association’s rules and advisory opinions, requires a license to practice law to perform. Each state bar association has a committee which investigates  Unauthorized Practice of Law (“UPL”) complaints and issues opinions and recommendations determining the specific tasks which are considered to be ‘practicing law’. The committee basis its decisions on the individual state’s definition of the practice of law, statutes concerning the unauthorized practice of it, and opinions it has issued concerning previous UPL complaints, much as the Courts base decisions on relevant statutes and previous case law.

The Unauthorized Practice of Law Defined

The Unauthorized Practice of Law Defined

What is the Practice of Law?

In order to define the unauthorized practice of a law, one must first define the practice of law. Each state’s high Court (the Supreme Court in most states) has its own definition of the practice of law. The Virginia Supreme Court, for example, says that[1]:

One is deemed to be practicing law whenever.

(1) One undertakes for compensation, direct or indirect, to advise another not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.

(2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contract incident to regular course of conducting a licensed business

(3) One undertakes, with or without compensation, to represent the interest of another before [a tribunal, as hereinafter defined in UPC 1-1,] otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions, by an employee regularly Ö employed on a salary basis, or by one specially employed as an expert in respect to such facts and figures when such presentation by such employee or expert does not involve the examination of witnesses or preparation of pleadings.

Whereas, the Indiana Supreme Court says the practice of law is[2]:

Ministering to the legal needs of another person for consideration given.  This includes but is not limited to the following provided to another person:

(1) Advice on a legal right;

(2) Negotiation or settlement of a legal right;

(3) Representation in a legal proceeding;

(4) Selection, preparation or completion of a legal document;

(5) Management of a law practice; or

(6) Any other conduct determined to be the practice of law by the Indiana

Supreme Court.

Find your state on the American Bar Association’s (“ABA”) State Definitions of the Practice of Law publication to see how it defines the Practice of Law.

Specific Tasks NOT Considered the Unauthorized Practice of Law

Some states describe tasks, which are expressly considered as authorized to be performed by non-lawyers. Tasks commonly excluded from consideration as practicing law include:

Document preparation

Many states allow non-attorneys to prepare legal documents when the document is a state or attorney approved form and requires filling in only general knowledge information, such as names, dates, and addresses. Some states also allow non-attorneys to offer such forms for sale. Federal law also allows non-attorneys to prepare bankruptcy petitions[3].

Representation of a party before an administrative agency

Administrative agencies such as the Social Security Administration, the Worker’s Compensation Board, and the U.S. Customs service generally allow non-attorneys to represent client’s just an attorney would, preparing pleadings and attending hearings.

Providing information about the law to an audience

Many states distinguish between giving general information to a large audience and giving advice to a specific person, and allow a non-attorney to provide information about the law to an audience, such as publishing legal articles or teaching a class. Wisconsin’s UPL rules, for example, specifically allow[4]:

Teaching about the law or providing information about the law including the legal rights or responsibilities of persons under the law, in a manner that is not directed at providing specific legal advice to a specific individual in the context of a specific matter. 

Specific Tasks Considered the Unauthorized Practice of Law

Once you have determined how your state defines the practice of law and what tasks are authorized, you should look to see how, specifically, it defines the unauthorized practice of law and those tasks, which are not authorized.  Some states have a statute or professional rule defining it and other do not. All states have a Committee or other division of the bar association, state, or Court, which interprets the UPL statutes on a case-by-case basis, much as the Courts do in civil, criminal, and/or appellate proceedings. Search your state’s bar association for its UPL Opinions and/or Recommendations and read them. This is the only way you can truly know what specific activities your state currently defines as practicing law.

Tasks commonly defined as the unauthorized practice of law, when performed by a non-attorney include:

  • Representing a party in Court.
  • Holding one’s self out to be an attorney, or otherwise licensed to practice law.
  • Negotiating and/or settling another’s legal rights.
  • Giving legal advice.

Advice vs. Information

Explaining procedural issues, such how to file pleadings with the Clerk or how many days one must wait before a divorce can be finalized, is not considered practicing law in most states, and is merely disseminating information. Many of the states specifically authorize providing printed information about various legal topics to clients, as long as the information has been approved by a licensed attorney or published by a state agency. Telling the difference between advice and information can be difficult and one should ask themselves a few questions about the specific information being given when attempting to do so:

Is it procedural or substantive? Procedural law is that which describes the proper procedure for initiating, answering, or defending a lawsuit. Substantive law is the law that defines a person’s rights or obligations, such as a statute prohibiting a certain crime or one requiring that certain people pay child support. Substantive law may need to be interpreted, which would require independent legal judgment that a non-attorney is not generally allowed to use when dealing with other non-attorneys. Procedural law however, does not usually need to be interpreted but simply put into plain English for a layperson to be able to understand.

Is it fact specific? Providing fact specific information to a client, such as what form to file in his or specific circumstances or what legal defense her or she may have in a specific case almost always requires a license to practice law. This type of information can be distinguished from general information such as what all defenses are available to anyone charged with a certain crime.

Does it interpret the law or explain it? This is perhaps the best question to ask yourself before providing legal information to someone. If you are simply telling someone what the law says, for example, that you must wait 90 days before your divorce can be finalized, you are most likely not practicing law, however, if you must interpret the law by relying on your legal knowledge or on any research you have done, it you are most likely practicing law.

The Public vs. Friends and Family

Many states’ definition of the practice of law specifically includes the phrase ‘for compensation’ while others specify that it does not matter if the non-attorney receives compensation, however, all of the rules are meant to prevent non-attorneys from providing services to the public and possibly taking advantage of low income families or providing bad legal advice. Nothing in the rules is meant to prevent a person from giving free advice to his or her friends and family members, just as they could before becoming a paralegal, and most states would not prosecute a person for helping a friend or family member with a legal problem as a favor[5].

Find your State’s UPL Rules

To determine how your state defines the Practice of Law and what specific tasks it considers the unauthorized practice of it, visit your state bar association’s website by choosing your state from the American Bar Association’s (“ABA”) State and Local Bar Association’s webpage. Search the association’s site for information on the UPL Committee or UPL rules.

None found at this time.
About Shelley Riseden

Shelley M. Riseden is a freelance paralegal providing research, document preparation, and writing services to both attorneys and non-attorneys. She is an expert at conducting legal research and has a natural ability to grasp complex legal issues.Phone: 765.667.5139, E-mail: smriseden@earthlink.net or shelley@virtuallylegal.net, Skype: shelley.riseden, Yahoo: Virtually_Legal

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