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The Unauthorized Practice of Law- Basic Issues / Consequences

As an individual who acquired a Juris Doctorate, but not currently engaged in the
practice of law in the United States, but engaged as a court mediator and
arbitrator for FNRA (formerly NASDQ), I felt compelled to write this brief
synopsis.

I felt it appropriate to disseminate, for purposes of the layperson, the issues and
boundaries which must be considered when one is concerned whether their work
constitutes ‘the practice of law’ within a given jurisdiction/country.

The practice of law is a crucial part of our legal system and the way in which ‘the
law’ is administered. Also known as UPL (Unlicensed Practice of Law), this topic
deserves attention so boundaries in the legal profession can be clearly
understood.

In the American Bar Association Model Rules of Professional Conduct, it states,


"A lawyer shall not practice law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction or assist a person who is not
a member of the bar in the performance of activity that constitutes the
unauthorized practice of law."

What this definition indicates is that attorneys


may not practice law where they are not licensed to do so and they may not
assist another person in UPL. So for an attorney licensed in only one state,
she/he may not practice law in another without appropriate licensure. As for
assisting another person with UPL, this would include helping a legal assistant
work outside the boundaries of their legal responsibilities as a non-lawyer
professional.

The goal of UPL is to protect the public from being subjected to fraudulent
practice by persons not qualified to give legal counsel. And when they employ
legal assistants they must be cautious not to do anything less than adequately
supervise their staff and ensure that UPL is not committed.

UPL does not include lawyers being able to educate other non-lawyer about the
law where it is necessary. This is quite different than giving legal counsel which
would be more legal advice rather than legal education.

Attorneys can do things to help prevent UPL from occurring, especially within
their own practice. Mostly this involves proper supervision of non-lawyer
employees. When an attorney delegates responsibility to a legal assistant, great
care must be taken that this legal professional knows what the boundaries are.

Lawyers are the only ones who may represent a client in court proceedings for
they are the ones with the knowledge and skill necessary to provide competence
to a client. The client is also protected by ethical rules which bind the attorney-
client privilege as well as confidentiality and other conflicts of interest. The only
person other than an attorney who can appear as representation is someone
who represents themselves in court.

Attorneys must also be present during depositions which are interviews that can
be used in court proceedings. Information obtained from depositions can be
crucial to a case. Pleadings and motions can only be signed by a supervising
attorney.

Exceptions include, as noted above, the situation in which a person represents


themselves (‘Pro Se’) and serves exclusively as the only representative in a legal
action or statement.

Michael A Massa, J.D.

Adjunct Professor of Law

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