The Other Side of the Unauthorized Practice of Law

There’s something about lawyers that evokes strong emotions. Perhaps it’s the glamorous depiction in television shows that focuses on high hourly rates, three-martini lunches, and luxury automobiles. Perhaps it’s the countless movies about attorneys operating outside the law. Perhaps it’s the media stories about disbarred attorneys or non-lawyers facing criminal charges. The foregoing examples contribute to public misconception and share the underlying theme 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.” Clearly, Abagnale committed crimes through his impersonations, but his affable demeanor and quick wit made it easy to forget that. The movie underscored the ease of committing UPL. Abagnale himself said that impersonating an attorney was much easier than impersonating a doctor or pilot because he was good at research and better at persuading people that he was right, and they were wrong. Abagnale’s impersonation was so believable that he landed a job in the Louisiana Attorney General’s office at age nineteen after passing the Louisiana State Bar Exam on the third try having never attended law school. Abagnale’s observations while flip, contain a heavy truth: lawyers rely on research and persuasion, which skills belong to lawyers and non-lawyers alike.

Because the law permeates so many aspects of our personal lives and commercial affairs, non-lawyers encounter and interpret laws daily. Attorneys often hear that a client “could do your job” or that “I should have become an attorney.” In shows, movies, and the media, the public sees the resolution of the case in a short time, with better than anticipated results, and minimal attorney effort. Because of this pervasive portrayal of attorneys and the function they serve, non-lawyers may fail to grasp the countless hours spent studying, reading case law, reviewing statutes, learning from past mistakes, receiving mentorship, discussing issues, negotiating, and the ongoing educational requirements necessary to the practice of law.

State bars have attempted to address UPL but have not been uniform in their view of the problem, potential solutions, or punishment. These discrepancies accentuate the difficulty in determining UPL and imposing penalties when it occurs. For example, the Florida Bar imposes a duty to investigate UPL and considers UPL a third-degree felony. Most other states, like California, Connecticut, and Pennsylvania consider UPL a misdemeanor. Still, other states like Arizona and Ohio impose civil penalties only. Arkansas considers the first offense a misdemeanor and increases the penalty for a second or later offense. Some states, like Oregon, have passed legislation allowing paralegals to provide independent advice if they meet other criteria. Thus, each state approaches the investigation and punishment of UPL differently.

The states that have statutes on the matter model their statutes upon the American Bar Association’s (“ABA”) Model Rule of Professional Conduct (“MRPC”) 5.5. MRPC 5.5 prohibits the practice of law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or the assistance of another in doing the same. The attorney may only practice where he is licensed, although he may be admitted to practice in another jurisdiction on a limited basis. If an attorney utilizes paralegals or other non-lawyers, he needs to exercise care in overseeing that 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 undertakes work in another, that could be considered UPL.

For example, assume that a New Jersey attorney has clients who own a vacation home in Florida. He recommends that the clients transfer their Florida vacation home to their New Jersey trust to avoid probate in Florida. If the New Jersey attorney drafts the Florida deed, he has committed UPL. Attorneys need to exercise care both in the work that they perform and in the work that they delegate. Certain tasks such as court appearances, providing legal advice, conducting settlement negotiations, and drafting legal documents cannot be delegated. The best advice for lawyers and non-lawyers alike is to understand your state’s rules, operate within them and avoid undertaking work in a jurisdiction in which you are not licensed to avoid criminal prosecution or civil penalties.

UPL represents a gray area of the law and can occur even when unintended. Frank Abagnale, Jr.’s actions, or even those of the fictional Mike Ross, represent clear cases of UPL. Neither attended law school, but both held themselves out as attorneys. Other situations, like a now disbarred attorney consulting on a case, or the experienced paralegal drafting documents glossed over by the supervising attorney present a less clear case. Often, lawyers need to rely upon unlicensed individuals to conclude a matter, which makes defining and prosecuting UPL an arduous task. Unless and until states can agree upon more uniformity in pursuing and punishing UPL, it will continue to undermine the work and experience of legitimate attorneys and erode public confidence by tarnishing the reputation of attorneys.

Tereina Stidd, J.D., LL.M. (Tax)
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com