Ethical issues in Legal practice by hcj

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									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 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.
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)
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 expert
   What 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?        GRADED ASSIGNMENTS

UPL and how to avoid it!      Discussion Board (25 pts)
                              Seminar (10 pts)
                              Test (40 pts)
QUESTIONS?

								
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