Unauthorized Practice of Law

Unauthorized practice of law. UPL. How many times have you heard that phrase or seen those call letters? How many times have you wondered what it means and whether it has any impact on you?

Although UPL is defined and interpreted in various ways, one basic tenet holds true: UPL statutes don't apply solely to paralegals. They apply to many professions who cannot provide services without referring to legal concerns, including realtors, bankers, accountants, trust companies and insurance companies. Throughout the United States, there are contrasting viewpoints about what activities constitute the practice of law.

In order to review the practice of law as it relates to the paralegal profession, we must first recognize the evolution and growth experienced by the profession over the past ten years. Paralegals are well-educated and well-trained with a variety of backgrounds, experience, education, and job responsibilities across a broad range of practice areas. The types of tasks which a paralegal may perform are limited only by statutory or court authority or by the accountable attorney's determination of the paralegal's competency. Paralegals are better educated and are given a greater level of responsibility than ever before.

There are three general categories of paralegal practice. A traditional paralegal works with accountability to an attorney. The traditional paralegal is usually a full or part time employee of a law firm, corporation, or government agency working with attorneys. A freelance paralegal (sometimes referred to as a "contract paralegal") works as an independent contractor with accountability to an attorney. These paralegals are usually retained by attorneys to provide substantive assistance on a case-by-case basis. An independent paralegal provides services to clients with regard to a process in which the law is involved, and for whose work no attorney is accountable. Independent paralegals often provide assistance directly to the public and are challenging the boundaries for the delivery of legal services. When reviewing the issue of UPL, each paralegal must take into consideration their current roles and responsibilities as it relates to attorneys and to clients.

Statements and definitions concerning the practice of law are usually vague and provide little assistance in determining what activities attorneys must do and what activities paralegals may or may not do. Contributing to this confusion are the national and jurisdictional interpretations offered by professional associations, state statutes and case law.

What constitutes the practice of law? Professional associations assert only general statements concerning the authorized and unauthorized practice of law. The National Federation of Paralegal Associations asserts that a paralegal "shall not engage in the unauthorized practice of law." Although the American Bar Association ("ABA") has stated that it is not necessary nor even desirable to specifically define what constitutes the practice of law, the ABA has indicated that

"Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client..."

All states have general statutes which limit the practice of law to licensed attorneys. The way each state defines UPL, if it is defined at all, differs greatly. UPL laws are open to interpretation by the courts and each jurisdiction differs in its activities and interpretations. Generally, the practice of law has been recognized to include: (1) accepting cases from a client; (2) setting fees; (3) giving legal advice, thereby rendering independent legal judgment on behalf of a client; (4) preparing or signing legal documents; and (5) appearing in a representative capacity before a court or other adjudicatory body.

Over the past few years, courts have identified general parameters to determine whether there has been unauthorized practice. These items include: (1) whether the service is commonly understood to involve the practice of law; (2) whether the service requires legal skills and knowledge beyond that of the average lay person; and, in some cases, (3) whether there has been harm to the consumer of those services.

Although the points noted above are simply summaries, clearly, UPL has been interpreted to occur when a nonlawyer engages in any activities which affect and impact upon the legal rights and obligations of clients. Prohibitions on UPL by nonlawyers vary by jurisdiction. Various methods such as injunctions and criminal prosecutions have been used to enforce UPL regulations.

Actions to enforce UPL regulations in connection with the activities of independent paralegals have received the most publicity. However, it should be noted that there are general exceptions to prohibitions on the practice of law by nonlawyers, including self-representation and nonlawyer participation in certain administrative proceedings. Due to the cost involved in pursuing and enforcing UPL regulations, some jurisdictions also provide exceptions to exempt nonlawyer practice that is incidental to other established businesses, or that involves only routine tasks requiring knowledge of an average citizen.

Traditional and freelance paralegals may do any activity so long as the attorney remains accountable and has ultimate responsibile for the work product. Attorney accountability requires appropriate delegation, oversight and final approval. With the evolution of the paralegal profession into higher levels of responsibility, there have been some questions about what constitutes the "appropriate tasks" that can be delegated. The ABA and several states have developed guidelines for the utilization of paralegal services. Check with your local paralegal association, state bar association or state Supreme Court to determine if guidelines have been adopted in your state.

The greatest area of risk for traditional and freelance paralegals is giving legal advice instead of giving general legal information. How many times have you been in a situation where a client asks about the status of their case and their chances of winning? A paralegal can factually inform the client about the status of the case; however, under these circumstances, and all situations where a client or other individual (including all those friends and relatives) ask questions relating to their potential rights and obligations as it relates to the current body of law and legal precedent, paralegals should not provide a legal opinion about the circumstances that apply to a specific fact situation. Paralegals working in traditional roles must realize how easy it is to cross the UPL threshold and make certain that their actions cannot be construed as unauthorized practice.

What can the traditional and freelance paralegals do to avoid UPL? Here are some tips:

  1. Make certain that those with whom you communicate realize that you are a paralegal, and that paralegals are not attorneys and cannot give legal advice.
  2. When conveying information which may be construed as legal advice, you should clearly identify the source of the advice as the attorney, e.g., "I questioned Attorney Smith on the point that you raised, and the attorney's opinion is that..."
  3. Make certain that all legal documents or correspondence which may include information that could be construed as a legal opinion is reviewed, approved and signed by the attorney.
  4. Make certain that you communicate effectively with the attorney and keep him/her advised of your work and activities. Ensure that all your work is reviewed and approved by the attorney.

It is important that paralegals are aware of the ethical obligations for attorneys in their jurisdiction. The attorney's responsibility for the actions of nonlawyer personnel is included in most state ethical codes and disciplinary rules for the legal profession. The attorney must remain responsible for the final work product; however, delegation of duties to traditional and freelance paralegals is a well known practice. The attorney must ensure that the boundaries of UPL are not crossed by any nonlawyer employee. Attorneys are subject to disciplinary proceedings for improperly managing nonlawyer employees work product, sharing fees with nonlawyers, entering into a partnership with a nonlawyer if any of the partnership's activities include the practice of law, and allowing a nonlawyer to influence the attorney's independent professional judgment in any other manner.

What does the future hold? Computers, law-related databases, and electronic reference sources are rapidly providing paralegals and lawyers with new and increased knowledge. This technology will continue to have an impact on both the amount of information available and how services are provided. The future of the practice of law is in a state of rapid transformation. The legal community must strive to provide a greater variety of legal services in order to allow more freedom of choice, easier access to professional services for the public, and reduced costs.

To effectively respond to the issue of UPL, the legal profession must accurately assess the nature and extent of UPL. Vague statements of public harm are no longer appropriate. Specific circumstances and proof of harm must be documented in order to clearly reflect the nature and seriousness of the problem before deciding on an appropriate remedy.

What should you do to find out more about UPL? Do your homework! Research UPL case law and bar opinions in your state. Contact your local paralegal association, the state Bar Association and the state Supreme Court for information and publications on UPL.

Courts, legislatures, consumers, and the legal community are reviewing potential changes to the current structure of the legal system in order to provide an integrated, multi-service delivery system in which there are different levels of expertise and cost. Paralegals can become an integral partner in the delivery of these services along with attorneys and other nonlawyers.

All paralegals, no matter what their area or type of practice, must be aware of the UPL provisions in their state and must be careful to stay within the boundaries of accepted practice. Legal services will change to meet the needs of the public. The paralegal profession must operate within the law in order to be an effective voice for change. We must recognize the potential for public harm and work to ensure that the public has ways to identify competent practitioners as well as methods to rectify any harmful activities. The challenge before us is to increase the delivery of legal services as well as identify effective deterrents for incompetent and fraudulent practice. We must be the proponents for responsible change.


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