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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