• Skip to navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

American Academy of Estate Planning Attorneys

AAEPA, Inc

Find a Member Member's Login
Call Today (800) 846-1555
  • Membership
    • Membership Membership
    • submenu
      • Why Join?
      • Member Requirements
      • Become A Member
      • Meet the Team
  • Estate planning software
  • Education
  • Practice management
    • Practice management Practice Management
    • submenu
      • 11 Essential Systems
      • Coaching
      • Law Firm Marketing
  • Resources
    • Resources Resources
    • submenu
      • Live Training
      • Blog
  • Contact Us

The Other Side of the Unauthorized Practice of Law

Home » Estate Planning » 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

  • Author
  • Recent Posts
Tereina Stidd
Tereina Stidd
Tereina Stidd
Latest posts by Tereina Stidd (see all)
  • Understanding Undue Influence – Part I - June 28, 2022
  • How Do I Trust Thee… Part III - June 21, 2022
  • How Do I Trust Thee… Part II - June 14, 2022
SHARE

Primary Sidebar

Subscribe to our blog

Recent Posts

  • Avoid Unnecessary Family Disputes with a Letter of Instruction
  • Understanding Undue Influence – Part I
  • The Top 3 Estate Planning Must-Haves
  • How Do I Trust Thee… Part III
  • Time for a Mid-Year Check-In?

Categories

  • Academy Girl Friday (33)
  • Client Services (239)
  • Coaching (33)
  • Consumer Advantage (3)
  • Counseling (21)
  • Elder Law (5)
  • Estate Planning (930)
  • Estate Planning Documents (5)
  • Estate Planning Education (201)
  • Financial Analysis (3)
  • Financial Services (1)
  • General (20)
  • Law Firm Marketing (282)
  • Law Firm Net Revenue (7)
  • Law Firm Staffing (99)
  • Law Firm Technology (45)
  • Law Firm Web Tips (186)
  • Leadership (191)
  • Legal Education (651)
  • Marketing Tools (2)
  • Medicaid (1)
  • Member Services (1)
  • Owners Compensation (1)
  • Peak Performer Focus (1)
  • Practice Building Calls (1)
  • Practice Management (497)
  • SEO/Social Media Support (3)
  • Software (6)
  • Strategic Planning (10)
  • Uncategorized (15)

Footer

logo of American Academy of Estate Planning Attorneys

About Us

  • Meet the Team
  • Site Map
  • Legal Notice
  • Privacy Policy

Explore Our Services

  • Coaching
  • Estate planning software
  • Events
  • Legal education
  • Marketing
  • Web and SEO

Keep in Touch

Mon-Fri

9444 Balboa Ave. Suite 300

San Diego

(800) 846-1555

info@aaepa.com

Take Back Control of Your Business and Your Life

+

footer section | American Academy of Estate Planning Attorneys

© 2022 American Academy of Estate Planning Attorneys, Inc All rights reserved.

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent. Don't sell my personal information.
Cookie Settings Accept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
Save & Accept