Legal 215: Chapter 7 - the Unauthorized Practice of Law

The ABA has alwalys maintained (1) that the public is best served by maintaining the high standards of quality achieved by self-regulation and

(2) that only licensed attorneys should be subject to regulation by the ethical considerations.

What prerequisites qualify you as an attorney?

1. Education, and 2. Passing the bar exam.

The jobs of a paralegal include:

1. Prepartation of legal documents; 2. Legal research; 3. Sharing answers recieved from lawyer to clients. * These duties are not UPL because they are performed under the supervision of a lawyer.

The activities that constitute UPL fall into four categories:

1. Prohibitions on the practice of law by non-lawyers; 2. Lawyers aiding UPL; 3. The responsibility of lawyers for their non-lawyer personnel; and 4. Misrepresentation of non-lawyers as to their status.

The enforcement of UPL regulations include:

1. injuction; 2. criminal prosecution; and 3. citatiion for contemp of court.

Common exceptions to the UPL rule include:

1. self-representation; 2. lay administration participation in certain administrative proceedings; 3. lay participation in the exercise of federally protected rights; and 4. law student practice, especially in the area of indigent representation.

What is Integrated Bar?

A bar association that has mandatory membership of all lawyers. California has an Integrated Bar.

Rules of Professional Conduct 5.5 states ...

A lawyer shall not: (a) practice in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction; or (b) assist a person who is not a member to the bar in performance of activity that constitutes the unauthorized practice of law.

What is the "Writ of Quo Warranto" asking?

By what authority are your practicing law?

What is giving legal advice?

Giving advice that would have an affect on the outcome of a matter.

What is the Conduit Theory?

Information is passed between client and attorney via the paralegal. The advice given by the paralegal is coming from the attorney and therefore covered under the Conduit Theory.

What is the meaning of "Respondeat Superior"?

It is Latin for "let the master answer."

Define Rule 8.3.

It is every legal professional's duty to protect the public from unscrupulous practitioners.

What is contemp of court?

It is when an act interferes with the orderly administration of justice, or impairs the dignity of the court.

Are kits and books that the consumer can purchase and receive no-in-person legal advice UPL?

No

A paralegal can be sent to a depostion to take notes and observe in the place of a lawyer. Can a paralegal ask questions of the deponent or otherwise actively participate in the deposition?

No, it would be considered UPL.

Can an attorney accomplish an unethical end if the act is done by the paralegal?

No. It would be as if the attorney committed the unethical act.

The discussion of UPL is a delicate balance of ...

Protecting the public and access to justice (rule #5).

Rule #5 deals with the improper division of fees. What is this rule?

Rule #5 prohibits paralegals from accepting referral fees; paralegals cannot have an employment contract that states that the salary will be based on the outcome of the case or the profits of the firm. Bonuses are permitted.

Define Rule # 5.3.

Rule 5.3 makes the employer-attorney responsible for the unethical conduct of the paralegal.

What is Rule # 5.4?

Rule 5.4 prohibits lawyers and non-lawyers from being in business together if any part of that business be the practice of law.

Improper conduct of the paralegal is imputed to the attorney? What does this mean?

The attorney is responsible for the acts of the paralegal.

As a paralegal - what is not giving UPL?

The interviewing of clients. Asking questions and writng down information is not UPL. Corportations must be represented by an attorney in a court of law, but non-lawyers can represent them in administrative proceedings.

What is the unauthorized practice of law?

The practice of law without a license to do so.

Why should we care about UPL?

The public interests is at stake as well as the legal profession and its reputation.

Attorneys are regulated by ...

Their state bar associations or Supreme Court Regulatory branch.

What is the practice of law?

Using your legal knowledge and skill, applying it to a person's specific facts, and communicating advice or conclusions based on that knowledge and facts to the person.

A lawyer does not have to designate of his/her business card with the title "lawyer." Does the paralegal?

Yes.

Does improper supervising consitute UPL?

Yes. By failing to properly supervise non-lawyer staff members, lawyers break the law by aiding UPL/

Paralegals cannot do anything that would be considered illegal if done ...

by a lawyer.

Lawyers who employ paralegals must ensure that the paralegals know their obligations under the duty of ...

confidentiality

General rule: The practice of law is limited to those who are licensed and admitted to the bar after satisfying certain state requirements with regard to education, moral character, and examination. This is a

licensed attorney or lawyer.

It may be acceptable for a lawyer to instruct the paralegal to sign the lawyer's name to an enclosure letter; it is not acceptable for the paralegal to sign the attorney's name to a ...

pleading.