There is something about lawyers that evokes strong feelings. Perhaps this is the glamorous portrayal on TV shows that focus on high hourly rates, lunches of three martinis, and luxury cars. Perhaps the countless films are about lawyers working outside the law. Media stories may be about dismissed lawyers or non-lawyers facing criminal charges. The above examples contribute to general misunderstanding and share the primary topic and focus of this article: the unauthorized practice of law (“UPL”).
Many of us watched Leonardo DiCaprio portray Frank Abagnale Jr. in Catch Me if You Can. Apparently Abagnale committed crimes by impersonating him, but his gentle demeanor and quick wit made it easy to forget. The film emphasized the ease of committing a UPL. Abagnale himself said that impersonating a lawyer was much easier than impersonating a doctor or a pilot because he was good at research and better at convincing people that he was right, and that they were wrong. Abagnale’s impersonation was so plausible that he landed a job in the Louisiana attorney general’s office at the age of 19 after passing the Louisiana Bar exam on the third attempt because he had never attended law school. Abagnale’s flip-flopping notes contain a heavy truth: Lawyers rely on research and persuasion, skills that belong to lawyers and non-lawyers alike.
As the law permeates so many aspects of our personal lives and business affairs, non-lawyers encounter and interpret laws on a daily basis. Lawyers often hear that a client “could do your job” or “should have become a lawyer”. In shows, films, and the media, the audience sees the case resolved in a short time, with better-than-expected results, and with minimal lawyer effort. Because of this pervasive portrayal of lawyers and the job they serve, non-lawyers may fail to understand the countless hours they spend studying, reading case law, reviewing laws, learning from past mistakes, receiving guidance, debating cases, negotiating, and continuing education. Requirements to practice law.
State bars tried to tackle the UPL but were not unified in their view of the problem, potential solutions, or punishment. These discrepancies highlight the difficulty of identifying the UPL and imposing sanctions when they occur. For example, the Florida Bar Association imposes a duty to investigate the UPL and considers the UPL a third-degree felony. Most other states, such as California, Connecticut, and Pennsylvania, consider UPL a misdemeanor. However, other states such as Arizona and Ohio only impose civil penalties. Arkansas considers the first offense a misdemeanor and increases the penalty for a second or subsequent offense. Some states, such as Oregon, have passed legislation that allows paralegals to provide independent advice if they meet other criteria. Thus, each country approaches investigation and punishment of the UPL differently.
Countries that have laws on this matter form their laws on the basis of the American Bar Association (“ABA”) Model Professional Conduct Rule (“MRPC”) 5.5. MRPC 5.5 prohibits practicing law in a jurisdiction in violation of the legal profession regulations in that jurisdiction or assisting another person to do the same. An attorney may only practice if he is licensed, although he may be admitted to practice in another jurisdiction on a limited basis. If the attorney uses paralegals or other non-lawyers, he or she should exercise caution in supervising the work, even if the paralegal or non-lawyer has more knowledge and experience than the supervising attorney. If an attorney has a license in one state but takes up work in another, this can be considered a UPL.
For example, suppose a New Jersey attorney has clients who own a Florida vacation home. He recommends that clients move their Florida vacation home to their New Jersey box to avoid Florida probate. If a New Jersey attorney drafts a Florida bond, he or she has committed a UPL. Lawyers need to be careful in the work they perform and in the work they delegate. Certain tasks such as appearing in court, providing legal advice, conducting settlement negotiations, and drafting legal documents cannot be delegated. The best advice for attorneys and non-lawyers alike is to understand the rules of your state, work within them, and avoid doing business in a jurisdiction in which you are not licensed to avoid criminal prosecution or civil penalties.
The UPL is a gray area of the law and can occur even when it is unintentional. The actions of Frank Abagnale Jr., or even those of the fictional Mike Ross, are clear cases of UPL. Neither of them attended law school, but both presented themselves as lawyers. Other cases, such as consulting an attorney who is now dismissed on a case, or experienced paralegal drafting documents that have been concealed by the supervising attorney, present a less obvious case. Often, lawyers need to rely on unauthorized individuals to finish a matter, which makes identifying and prosecuting a UPL a daunting task. Unless and until states can agree on more uniformity in pursuing and sanctioning the UPL, it will continue to undermine the work and expertise of legitimate lawyers and undermine public trust by discrediting lawyers.
Terina Stead, JD, MA (tax)
Associate Director of Education
American Academy of Estate Planning Lawyers, Inc.
9444 Balboa Street, Suite 300
San Diego, CA 92123
Phone: (858) 453-2128