What is Unauthorized Practice of Law?
So what exactly is the "unauthorized practice of law"? For the purposes of this article, we’ll focus on the legal definition of the term. However, we know that paralegals and legal assistants are all probably saying to themselves "it depends." And you’re right, it does depend on your jurisdiction’s definition of "the unauthorized practice of law."
The unauthorized practice of law, commonly referred to as UPL, is a term that encompasses a number of infractions but at its core: "[T]he provision of legal advice and services by someone who has not been licensed by a court or other authority to provide such services[.]" One of the first questions meaning everyone has when discussing paralegal ethics is, what is considered the "practice of law?"
In order to be a licensed attorney, you have to be admitted to practice in the courts in your state jurisdiction (and possibly others depending on where you want to practice), and the requirements for admission may include passing a bar examination and an ethics exam, and submission of an application. But who decides what constitutes the "practice of law?" That distinction and decision is left up to the court system and its applicants.
The way most U.S. jurisdictions delineate the practice of law is by matching legal services with a set of legal functions. In short, the court system and local bar associations decide what is and is not the practice of law. It is important to note that the unauthorized practice of law may or may not include issuing non-lawyer opinions.
Because jurisdictions are virtually all autonomous from one another , they all have their own opinions of what constitutes the "practice of law" as well as what exactly qualifies under the label of unauthorized practice of law. While UPL may hinge on the type of the service provided, an effective way to avoid breaching the ethical duty of unauthorized practice of law is to ask "Does this task require my legal expertise?" An attorney’s primary duty is to know the law and to give their clients advice.
Drafting legal documents is not the only type of task considered "legal work," but it is a major one and also offers us some of the clearest examples of paralegals stepping over the line. For the most part, we can say that if you’re doing a task that deals with the law, you’re working in the legal field. That task could include drafting of various pleadings, interrogatories and document production, motions, discovery, pleadings and filing.
It’s not too far of a stretch to view many of these tasks as "doing your job." You know what you’re doing, you have the requisite education and training, and you feel comfortable doing the job at hand. But a simple answer is not always the case. Boundaries on a paralegal’s work can be fuzzy and unclear. Even judges don’t always agree on what tasks are legal duties and what tasks are administrative work, for example.
Look for more information on the consequence of unauthorized practice of law next week.
Common Activities That Cross the Line
Even after the paralegal has been closely supervised by a lawyer for a period of time, more often than not, certain actions in this profession still require a reputation of and sensitivity to the boundaries of what a paralegal can legally do without supervision by a lawyer. Otherwise, paralegals may unwittingly stray into unauthorized practice of law according to the definitions given for that in various state statutes, even when acting under express authority.
The provision of legal advice and the preparation of legal documents for clients without the supervising member of the bar present are two common tasks that may inadvertently lead a paralegal into the domain of the unauthorized practice of law.
Because it is not usually practical for the supervising lawyer to be at the paralegal’s side at all times, the paralegal should not deal directly with a client except in the presence of the approving lawyer. In fact, Counseling clients is strictly forbidden for a paralegal who deals with clients in the lawyer’s absence. "Providing legal advice through counseling requests from a lay clientele is the treatment a sophisticated profession must be prepared to offer or quit. However, the price for this privilege is strict observance of the ethical line between permitted and prohibited acts." The paralegal should merely appreciate the nature of the problem presented and prepare for the lawyer’s appearance by obtaining facts or information that will be helpful to the examination and to the case without attempting to give legal advice. The attending lawyer should then prepare a legal memorandum for the specific interest of the client and determine whether legal advice will be needed.
The drafting of legal documents based on information obtained from a client may lead to the unauthorized practice of law by a paralegal if the lawyer examines the document or plays a substantial role in its drafting. Instead, the paralegal should merely take the required information from the client and place it into a questionnaire for the lawyer, or draft an outline for the letter or document to be submitted, unless a lawyer is actually present to supervise the task.
Examples of Going Too Far
While there are few cases prosecuted under the UPL statutes in North Carolina, we have seen a few of them. On some occasions, the conduct may exist in the gray areas where the professional lawyers must make a decision about whether paralegals are engaging in the unauthorized practice of law. Arguably, prosecution does not serve the citizen consumers who have been impacted by paralegals’ overstepping the boundaries in our profession but in some cases those are the only kinds of resources available to the professional lawyers. The following are real life examples of paralegals who overstepped the boundaries: Affordable Legal Services, Inc. (aka T.A.L.S.), Greensboro, NC, prosecuted by the NC State Bar, was found to be the unauthorized practice of law in 2001; it was required to pay a $1,000 fine, not represent persons regarding guardianships and dissolve its business. Divorce on the Rocks, Inc., Charlotte, NC, NCSB v. Etsy, 175 N.C. App 97, 623 S.E.2d 824 (2005), was prosecuted for unauthorized practice of law after allowing non-lawyers (paralegals) to operate in a high profile real estate location and provide legal documents to clients without attorneys providing supervision. Etsy was required to stop doing business, pay $50,000 fine, return to clients $132, 385 that had been collected on behalf of the attorney, and surrender her paralegal certification for two years. Lemonade Legal, LLC, Wilmington, NC, NCSB v. Hunsucker, N.C. State Bar File 08-07-152 (2009) (upholding NC State Bar Board of Law Examiners February 18, 2009 letter notifying Hunsucker that Lemonade Legal lawfully employed paralegals to draft wills, trusts, and other legal documents). 42nd Street Legal, PC, New York, NY, was prosecuted for unauthorized practice of law in a massage parlor by non-attorney manager and paralegals who engaged in a fee-splitting scheme with non-lawyer managers. They were permanently enjoined from accepting criminal or traffic matters, summary evictions, real estate closings, and any representation where the client’s disputes involve another party (math and factual disputes were exempted).
How to Know if You’ve Crossed the Line
A paralegal in a case should have a good understanding of the outer limits of their legal work. For each task, they should be able to determine if that work is something they can or cannot do through careful analysis of the actions being taken. There is a danger in assuming that because the Court allows you to file it and serves it the work you’ve done is authorized practice of law.
One big area that can pose trouble is contract formation, and what is authorized practice. If a nonlawyer has drafted or negotiated a contract or agreement, they are PRACTICING LAW if they are: modifying an existing contract or writing a new contract or clause; drafting forms to be used as legal documents; or preparing and facilitating loan documentation (for example). Even negotiating the terms of a contract can be unauthorized practice.
Paralegals can also be pulled into unauthorized practice by working on behalf of a lawyer in areas where they are unfamiliar with the applicable law . For example, if a paralegal is working on a case and is asked to write a promissory note according to statutes in a particular state, and the paralegal isn’t familiar with the law in that state. If the paralegal is not familiar with how the statute is typically drafted, disputes may arise.
The best way for paralegals to ensure they are complying with the requirements of unauthorized practice of law is to always be aware of what allowed nonlawyer employees can and cannot do in their state or jurisdiction. A good rule of thumb is if the person you report to is a licensed attorney, then they cannot encourage, or allow, you to assist them with unauthorized practice of law. If they are encouraging you to assist them by doing something that you’re unsure about, always reference your state’s guidelines on unauthorized practice and follow their outline.
How to Protect Yourself as a Paralegal
The best way to protect yourself against the risk of engaging in the unauthorized practice of law is to practice in a way that avoids the problem entirely. One of the very best ways to do this is to make sure that you are always working under the supervision and guidance of an attorney. Many states have specific guidelines or limits on the tasks that a paralegal (or non-attorney) may carry out without specific supervision from a licensed attorney. In many states, these tasks are limited primarily to the peripheral work of the case, not the legal work itself. The supervising attorney remains responsible for all legal work performed by their staff members.
In addition, it’s essential to continue your education as a paralegal, to stay abreast of the specific requirements and prohibitions in your state. Your employer or supervising attorney may expect you to be familiar with these prohibitions, as paralegals may be strictly fined, and attorneys may be referred to their state bar for disciplinary action. You may also review your state’s Attorney Guidelines for the Utilization of Paralegals, a document published by each state’s bar committee to help clarify appropriate and prohibited paralegal duties.
Finally, paralegals must always adhere to their code of ethics in order to maintain client confidentiality and respect the attorney-client privilege. They should never engage in any conduct that would betray either.
How Attorneys Can Stop Unauthorized Practice
One of the clearest ways attorneys can help prevent possible unauthorized practice of law is by providing effective supervision to paralegals. Fortunately, there are some clear best practices to subscribe to as you supervise paralegals. All actions start with clear communication, so that’s where we’ll begin.
Stay In Communication
If a paralegal requires a specific tool or a certain kind of information, great communication will help him or her articulate that need to the attorney for whom they work. Even if a task seems simple enough on the surface, make sure you and the paralegal involved are on the same page. By doing this, you’re laying the groundwork to a higher-functioning working relationship and you’ll also be setting an example for other paralegals who may be watching you. Your professional duties, largely, are to be a guide for paralegals to learn from .
Assign the Right Tasks
Whether you’re assigning a task to a paralegal you’ve never worked with or you’ve developed a comfortable relationship over the years, there are certain tasks that should never be handed off to a paralegal. These can include:
Provide Training
Sometimes, additional training can help paralegals beyond their areas of expertise—whether it’s an area related to their job or not. For example, a paralegal unfamiliar with court-mandated reporting requirements in their jurisdiction may have a gap in essential information. It becomes your prerogative to help them learn more about those requirements through research, books and coursework. This may seem like a lot of extra work on your end, but you’re helping build the capabilities of your paralegals while reducing the potential for future errors. These are good employee skills to have—and they can help your law firm meet its state and/or national UPL requirements.