PA 253- Legal Ethics SEMINAR UNIT TWO

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PA 253- Legal EthicsSEMINAR UNIT TWO

• UNIT 2 UNAUTHORIZED PRACTICE OF LAW

Professor Paulina Proper, J. D.
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UNIT 1 REVIEW

• Application of Model Rules/Ethical Rules
  (remember the difference?).
• References to rules or ethical rules
• At the very least, be sure to read my posts on
  the discussion board.
• Try to read what has come before so we dont have
  repetition.
• Questions?

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Unit 2 Preview

• Main topics
• What is UPL? What is the practice of law
• What are the responsibilities of attorneys?
• How do paralegals get into trouble?
• What can paralegals and what cant they do?

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WHATs THE BIG DEAL?

• Obviously, both lawyers and nonlawyers can make
• mistakes that ultimately harm the client.
• The differences are (1) lawyers have the
• authority to correct the error (2) lawyers can
  be sued for professional negligence (malpractice)
  whereas most nonlawyers cannot and (3) where
  there is a pattern of below-standard legal work,
  lawyers may be subject to discipline but
  nonlawyers are exempt from state bar disciplinary
  actions.

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THE PRACTICE OF LAW

• What is it?
• 1. giving legal advice
• 2. create legal documents for others
• 3. represent others in court (before a tribunal)

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LEGAL ADVICE

• It is
• the application of a rule of law
• to a particular persons specific facts or
  situation
• giving a conclusion, response or recommendation

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EXAMPLE OF LEGAL ADVICE

• Client tells attorney
• I want to start a business. I have two sons in
  college, and want to involve them in the
  ownership, but not give them any say over the
  management of the business.
• Attorney says to client you have two good
  options a limited partnership or a limited
  liability company.

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WHEN DOES IT TURN INTO UPL?

• UPL occurs when Person A is seeking legal advice
  from Person B, who Person A knows has legal
  knowledge but who is not a lawyer.
• PERSON B has responsibility to refrain from
• Applying knowledge of law/rules of law
• To specific facts or circumstances
• And giving a conclusion/response
• To someone PERSON B knows may rely on PERSON Bs
  advice as an expert
• What about advising someone to seek a lawyer?

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This seems kinda narrow

• Wait! Its the application of paralegals legal
  knowledge to SPECIFIC facts.
• A paralegal can RELAY legal advice
• Its NOT UPL as long as general information is
  given to the general public with no specific
  answer for any one persons case.
• So, paralegals can write about legal issues for
  websites, blogs, books, teaching material, etc.
• They can also answer general legal questions,
  like
• Whats the statute of limitations on
  embezzlement?
• BUT BE CAREFUL if grandpa asks about wills at
  the dinner table, you answer, and he relies on
  your adviceits UPL!

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LEGAL DOCUMENTS

• WHAT ARE LEGAL DOCUMENTS?
• Documents filed in court
• Complaints, Answers, Motions
• Documents recorded with a recorders office
• Deeds, Mortgages
• Any document that affects a persons rights under
  the law
• Contracts
• Agreements

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What does CREATION mean?

• Signing a document (most important!)
• Preparing a specific (not a form) document and
  providing it to a client without input or
  approval from an attorney.
• Assisting a client with filling out a form
• NOTE DISTINCTION!!! Assisting v. advising
• SO, a paralegal can prepare or draft documents,
  but not independently.

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EXAMPLES

• Client says to paralegal youve done a million
  of these deeds, and youre so much cheaper than a
  lawyer could you just put one together for me?
• Lawyer says to paralegal I have meetings all
  day today, and wont have time to sign the motion
  you prepared could you just sign it for me?
• Friend says to paralegal do I have to list all
  child support on my loan application form, or
  just the support I actually used for my child?

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EXCEPTIONS?

• Incidental Activities typically conducted by
  nonlawyers are not considered UPL
• Activities performed by lay people in the course
  of business that would ordinarily be considered
  the practice of law but are incidental to
  functions properly performed by them are exempt
  from UPL prohibitions.
• 1. preparation of instruments by title companies
  and real estate brokers
• 2. estate planning by banks and insurance
  agencies
• 3. debt collection by commercial agencies
• 4. tax practice by accountancy agencies

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What CAN a paralegal do?

• Prepare drafts of just about every type of
  document trusts, wills, contracts, corporate
  filings, motions/pleadings, etc. FOR REVIEW AND
  APPROVAL
• Prepare letters FOR ATTORNEY SIGNATURE
• Participate and assist attorneys in just about
  every other aspect of legal practice, including
  discovery, as long as they are not CREATING
  documents
• They CAN ALSO
• Complete forms based on client information
• Usually, can suggest commercially available or
  government-created forms based client facts
• Answer fact-based questions about forms (what
  goes in this blank?)

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Representing Others

• ONLY a licensed attorney may appear in court on
  behalf of a client
• UPL occurs when person appears in court on
  behalf of another
• Note
• Some question as to whether a paralegal can
  appear just on technical issues

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Paralegals CAN.

• 1. Represent themselves (pro se)
• 2. ALSO, they can represent others before most,
  but not all, state and federal agencies
• Review chapter 2 of e-book for list of agencies
• BUT, BE CAREFUL some states have requirements
  for advertising such services, and a paralegal
  can get into trouble for misrepresentation if the
  public can reasonably mistake their advertising
  as for that of a lawyer.

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UPL Law, GENERALLY

• All jurisdications have statutes outlawing UPL
• Attorneys have to be licensed in jurisdiction
  practice law, or they will also be in trouble
• NFPA and NALA have specific ethics rules
  prohibiting it (review what sort of authority to
  these organizations have?)
• Freelance paralegals cant be completely
  independent have to have lawyer available to
  supervise

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SANCTIONS FOR UPL

• Injunction, criminal prosecution, citation for
  contempt of court, and writs of quo warranto are
  the most widely used methods of enforcement of
  the unauthorized practice regulations.
• Misdemeanor in nearly all jurisdictions
• Some states have increased the level of UPL to
  felony.

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What are attorneys responsibilities?

• Lawyers can violate the regulations that prohibit
  their aiding the unauthorized practice of law
• 1. by improperly supervising their employees and
  associates (includingimproper delegation),
• 2. by entering into an improper business
  relationship with a nonlawyer (including
  splitting fees), or
• 3. by allowing (or helping) a nonlawyer to
  misrepresent the nonlawyer status.
• Lawyers will likely also be liable if a paralegal
  they are supervising commits UPL

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What are paralegals responsibilities?

• ALWAYS, ALWAYS make it clear that they are
  paralegals, not lawyers, and cannot provide legal
  advice
• THIS IS ESSENTIAL
• Avoid actually practicing law
• Refuse improper delegation (Im sorry, I dont
  feel comfortable doing that)

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EXAMPLE FROM E-BOOK

• Hamed has just entered a paralegal program and is
  taking several classes dealing with law. His
  friend Antonio asks Hamed to help him with a
  software package Antonio just bought. The
  software purports to construct living wills and
  trusts. It came with a workbook and a
  step-by-step guide, but Antonio says he doesnt
  understand some of the terminology the program
  and books are using.
• Can Hameed explain legal terminology to his
  friend without committing UPL? Can he help his
  friend answer the questions posed in the workbook
• and by the software? To aid you in your
  answer, take a look at In re Gaftick,
• 333 B.R. 177 (Bankr. E.D.N.Y. 2005).

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COMING UP IN UNIT 2

• WHAT WILL WE COVER?
• UPL and how to avoid it!

• Graded Assignments

• Discussion Board (25 pts)
• Seminar (10 pts)
• Test (40 pts)

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• QUESTIONS?