PA 253- Legal Ethics

SEMINAR UNIT TWO

UNIT 2: UNAUTHORIZED PRACTICE OF LAW

Professor Paulina Proper, J. D.

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 don’t have repetition.

Questions?

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 can’t they do?

WHAT’s THE BIG DEAL?

Obviously, both lawyers and nonlawyers can make

mistakes that ultimately harm the client.

The differences are: (1) lawyers have theauthority 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.

THE PRACTICE OF LAW

What is it?

1. giving legal advice2. create legal documents for

others3. represent others in court

(*before a tribunal)

LEGAL ADVICE

It is: the application of a rule of law

to a particular person’s specific facts or situation

giving a conclusion, response or recommendation

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.

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 B’s

advice as an expertWhat about advising someone to seek a

lawyer?

This seems kinda narrow Wait! It’s the application of paralegal’s legal

knowledge to SPECIFIC facts.

A paralegal can RELAY legal advice

It’s NOT UPL as long as general information is given to the general public with no specific answer for any one person’s case. So, paralegals can write about legal issues for

websites, blogs, books, teaching material, etc. They can also answer general legal questions, like:▪ What’s 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 advice…it’s UPL!

LEGAL DOCUMENTS

WHAT ARE LEGAL DOCUMENTS? Documents filed in court▪ Complaints, Answers, Motions

Documents recorded with a recorder’s office▪ Deeds, Mortgages

Any document that affects a person’s rights under the law▪ Contracts▪ Agreements

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.

EXAMPLES

Client says to paralegal: you’ve done a million of these deeds, and you’re 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 won’t 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?

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

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?)

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

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.

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 can’t be completely independent – have to have lawyer available to supervise

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.

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

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 (I’m sorry, I don’t feel comfortable doing that)

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 doesn’t 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).

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)

QUESTIONS?