How Can I Avoid Being Involved in the Unauthorized Practice of Law?

April 25, 2016

By Professor Roberta K. Flowers

Sometimes lawyers are assisting in UPL in their own law firms without realizing it.

Much has been written and talked about on listservs and in conference and hearing rooms around the country about the unauthorized practice of law (UPL). Some attorneys have suggested that there is a nationwide tsunami of non-lawyers trying to provide traditional legal services for the elderly and people with disabilities. Several Bar Associations have taken up the issue of the harm that comes from botched applications and purchasing unnecessary products.1 

Defining the Practice of Law

However, UPL does not just happen in trust mills and Medicaid planning businesses. Sometimes lawyers are assisting in UPL in their own law firms and businesses, without realizing it. To start, it is imperative to define the practice of law. The ABA Task Force on the Definition of the Practice of Law in 2003 recognized that there is not a universal definition for the practice of law. It suggested that each state should undertake to define for itself what is the practice of law.2 However, the report went on to suggest the “basic premise” is “that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.”3 Oregon’s definition is instructive. It defines the practice of law as “the exercise of professional judgment in applying legal principles to address another person’s individualized needs through analysis, advice, or other assistance.”4 The key to any definition is applying judgment to an individual’s specific circumstances and determining what is the future conduct or service needed. It is advice that combines individualized circumstances and future conduct.

Delegating Functions Appropriately

Only a lawyer should undertake this individualized judgment. If a lawyer allows a non-lawyer to exercise the judgment needed to consider the individualized circumstances and determine the future conduct or needs of the individual, then the lawyer may be assisting in UPL. Consequently, if an attorney is merely signing off on trusts that have been created by non-lawyers or merely acting as a scrivener for Medicaid planning that has been done by a non-lawyer, the attorney may be violating the Rules of Professional Conduct. Comment 2 to ABA Model Rules 5.55 suggests, that the prohibition against UPL can be violated “by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.”6 The practice of law requires a lawyer to know the individualized circumstances that lead to the drafting of the documents he or she is approving or supplying.

Further, an attorney can violate Rule 5.5 by allowing an employee to make professional judgments that are based on the client’s individual circumstances and future needs. “A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”7 The rules do not prohibit the hiring of “paraprofessionals and delegating functions to them so long as the lawyer supervises that delegated work and retains responsibility for their work.”8

Five Tips for Using Non-Lawyer Staff Correctly

As Robert Anderson, CELA, CAP, Vice Chair of the NAELA Practice Success Section, commented “in the realm of law office economics, it is a win/win situation for clients and the law firm to maximize the appropriate use of non-lawyer staff members.” The key word is the appropriate use of staff.

Anderson suggests five ways to correctly use non-lawyer staff.

1. Proper recruitment

When hiring non-lawyer professionals, look at experience and education, but also consider whether the individual has a heart to serve elders and the ability to communicate. In the initial conversation, it is important to set boundaries for the staff member and to gauge whether that individual is one who is willing to comply.

2. Thorough training

Non-lawyer professionals must understand the lawyer’s ethical rules and how their conduct is governed by the same standards. Anderson suggests that sometimes bringing staff to conferences is a great way to educate them.

3. Holistic Approach

The use of professional care coordinators, such as social workers and nurses, expands the law firm’s mission into a more holistic approach. The use of paralegals in a variety of ways including case management roles is recommended. These paraprofessionals should be included in the initial meetings, but the attorney must set forth for the client and the staff the roles each member of the firm will perform. The lines between legal and non-legal work must be clearly drawn and understood by all. Anderson suggests that role modeling is imperative and that initial meetings should always be led by the attorney.

4. Consistent Supervision

Without a lawyer keeping watch, a paraprofessional with years of experience may begin to step over the line between non-lawyer work and legal advice. Additionally, attorneys should not use paralegals to solicit clients for the attorney.9 The attorney must be very clear that the restrictions on in-person solicitation apply equally to the attorney and his staff. Anderson suggests weekly meetings to allow attorneys to remain abreast of the staff’s work.

5. Be willing to terminate uncooperative staff.

A great employee who violates the principles of the profession or who does not understand the valuable but limited role the employee plays in providing legal services must be let go. A lawyer is vulnerable if he allows repeated violations to go unchecked and uncorrected.

About the Author
Roberta K. Flowers is Co-Director of the Center for Excellence in Elder Law at Stetson University College of Law. She is a member of the NAELA News Editorial Board, the NAELA Board of Directors, and the NAELA Professionalism and Ethics Committee.

Citations

1 See Ohio UPL11-01 (Oct. 7, 2011); Florida Advisory Opinion No. SC14-211; Tennessee Opinion No. 07-166.

2 http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/taskforce_rpt_803.authcheckdam.pdf.

3 Id. at 4.

4 See Oregon State Bar v. Robin Smith, and People’s Paralegal Service, Inc., 942 P. 2d 793 (Or. Ct of Apps 1997).

5 Attorneys must always check the ethics rules and ethics opinions of their own state’s bar.

6 ABA Model Rule 5.5 Cmt 1(2014).

7 ABA Model Rule 5.5 (2014).

8 ABA Model Rule 5.5 cmt 2 (2014).

9 See Michigan Ethics Opinion RI-349 (2010) at http://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1219&Type=6&Index=U for a good discussion about the use of paralegals as conduits between the attorney and the client.