2.6: Unauthorized Practice of Law

As you have seen, paralegals can ethically charge clients for time spent on billable tasks. However, there are certain tasks and activities that can only be performed by a licensed attorney; anyone else who performs them has engaged in unauthorized practice of law, or UPL. This chapter will introduce to UPL, what paralegals can and cannot do, and the attorney’s duty to supervise.

What is Unauthorized Practice of Law (UPL)?

As you learned in Chapter 2.1, each state has its own statutes regarding what is required to obtain a license to practice law within that state. Only attorneys who have been admitted to the State Bar and licensed to practice law within a particular state are allowed to practice law within that state. Each state also has its own statute that prohibits non-attorneys from practicing law; although the statutes vary, the common purpose is to ensure only attorneys provide legal services. No one else – not accountants, bankers, insurance agents, realtors, nor paralegals – is allowed to do so.

State statutes are not always clear regarding what constitutes UPL and what does not. Fortunately, NALS, NALA, NFPA, and the ABA provide some guidelines intended to assist paralegals in avoiding UPL. According to those guidelines, non-attorneys are prohibited from doing the following:

• Accepting or rejecting a client/legal matter. In other words, establishing the attorney-client relationship, communicating an intent to establish (or not establish) it, and signing fee agreements, contracts, or correspondence relating to establishing (or not establishing) an attorney-client relationship.
• Setting legal fees. Only the attorney is allowed to decide the amount and manner (hourly, flat fee, task-based, etc.) in which to charge a client for legal services. This includes signing a fee agreement.
• Providing legal advice. Legal advice includes recommending actions or inactions, interpreting the law or documents, evaluating legal claims or the likelihood of success, explaining legal rights or obligations, planning legal strategy, making legal decisions, and the like.
• Preparing legal documents without attorney supervision. In other words, any document, pleading, letter, etc., must be reviewed and approved by the attorney before it leaves the law office.
• Representing clients in Court. This not only includes personal appearances at hearings or trials, but also signing pleadings, motions or other legal documents to be filed in Court. According to the NFPA guidelines, this also includes taking depositions.
• Terminating the attorney-client relationship. Only the attorney can determine whether a legal matter has been concluded according to the retainer/fee agreement and communicate its completion with the client. This restriction especially applies to decisions to terminate the attorney-client relationship before the conclusion of the legal matter, for whatever reason.

The reason for these restrictions is that, while paralegals receive formal education that provides them knowledge and training regarding the legal system, as well as procedural and substantive law, the purpose of that education is to enable them to perform legal work under the supervision of an attorney. In contrast, attorneys’ formal education regarding the same topics has the purpose of enabling them to exercise legal judgment on behalf of clients.

What are Paralegals Allowed to Do?

Despite the restrictions described above, there are many important things paralegals are allowed to do to assist attorneys and their clients. The table below is a side-by-side comparison of what is and is not prohibited as UPL:

Prohibited (UPL)	Allowed (Not UPL)
Accepting or rejecting a client/legal matter.	Listing the attorney’s typical law practice areas Drafting a letter of acceptance/rejection to a client for the attorney’s review and signature
Setting legal fees	Providing information about what is typically charged for legal services Drafting a fee agreement for the attorney’s review and signature
Providing legal advice	Drafting a letter/memorandum containing legal advice for the attorney’s review and signature Providing legal information (see the discussion below)
Preparing legal documents without attorney supervision	Drafting legal documents for the attorney’s review and approval “Scrivening” – filling in the blanks of a standard form, contract, or pleading without giving any advice
Representing clients in Court	Representing yourself in Court (appearing pro se) Drafting pleadings, motions, or other legal documents to be filed in Court for the attorney’s review and signature
Terminating the attorney-client relationship	Drafting a letter terminating the representation for the attorney’s review and signature Sending a final bill to the client

Paralegals are also allowed to do the following:

• Gather information and documents from potential clients, accepted clients, and other persons relating to a legal matter and provide it to the supervising attorney. In this context, the paralegal is a conduit of information. Paralegals can make telephone calls, send letters under their own signatures (reviewed by the attorney), request records and documents, and engage in other forms of communication. In doing so, it is required that paralegals disclose their non-attorney status by specifically identifying themselves as paralegals at the beginning of the telephone call, or by including the term “Paralegal” after their names in the signature line of letters or other correspondence.
• Perform legal tasks in a specific legal matter as delegated/directed by the attorney. Some law offices have master task lists or process manuals identifying specific steps to be taken and documents, forms, or letters to be used in a legal matter. As long as the task lists or process manuals were drafted and approved by the attorney, and as long as the attorney is required to review and approve what the paralegal has drafted, the paralegal is allowed to complete the work on a more self-directed basis.
• Receive and summarize documents or information from persons other than the supervising attorney. While the supervising attorney should independently read and review information received in response to records requests or formal discovery, many attorneys rely on their paralegals to create summaries for use during depositions or court proceedings. The summaries collect, categorize, report, and cross-reference information in such a way that the attorney can efficiently access useful information contained in lengthy documents, and often across multiple documents.
• Perform legal research. Attorneys often request paralegals to retrieve specific statutes, court decisions, or other legal authorities to support their legal strategies, advice, and decision-making. Experienced paralegals may also be asked to perform more in-depth legal research and analysis to locate statutes, court decisions, or other legal authorities that become the basis for the attorney providing legal advice to the client.

The common thread in most of the permissible activities is that the attorney is ultimately responsible for providing legal services to the client. As long as the attorney has full professional responsibility for the work product and properly supervises work delegated to the paralegal, the paralegal is authorized to perform work that is crucial to law practice.

The Attorney's Duty of Supervision

As you learned in Chapter 2.1, attorneys must ensure that neither they neither they nor those they supervise violate the ethical rules; this includes making sure non-attorney staff do not engage in UPL. Additionally, attorneys must not encourage – directly or indirectly – non-attorneys to engage in UPL.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistance. … A lawyer [shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer….

As Comment 2 to the Rule explains, proper supervision requires the attorney to “take account of the fact that [non-attorneys] do not have legal training and to

• be responsible for the work product of non-attorneys in the law office. As mentioned previously, this means reviewing, revising (if necessary), and approving every piece of paper, file, or correspondence before it leaves the law office.
• instruct non-attorneys “concerning the ethical aspects of their employment ….” This means that as part of the onboarding process, attorneys must
  • take the time to train new employees regarding their ethical responsibilities, the ethical limitations on what they are allowed to do, and specifically what conduct constitutes UPL
  • provide continuing instruction and guidance throughout their employment regarding violations of ethical rules and steps for avoiding violations and UPL
• refrain from delegating tasks that only the attorney should perform to non-attorneys, regardless of the non-attorney’s level of skill or experience.

Inadequate attorney supervision can arise in many circumstances. Sometimes, a non-attorney may be asked to do tasks that would constitute UPL because the attorney has gotten him- or herself into a sticky situation caused by the attorney’s own failure to comply with rules regarding competence, diligence, or communication. For example, the attorney may have failed to properly calendar a deadline, resulting in the need to take “emergency action” to meet the deadline. Or, the attorney may have taken on too many legal matters, resulting in insufficient time to properly supervise and review non-attorney work product. Other times, an attorney simply places too much trust or reliance on an experienced and trusted non-attorney’s skill or expertise. This can happen when the supervising attorney is relatively new or inexperienced. Or, the attorney and paralegal have worked together in a particular area of law for a very long time, during which the paralegal has demonstrated a high level of competence such that “micro-managing” is not necessary.

Although the duty of supervision and compliance with the ethical rules ultimately rests with the attorney, paralegals also are responsible for making sure they are adequately supervised so that they are not engaging in UPL. Paralegals who feel their supervising attorney is not adequately supervising their work can address the situation by doing the following:

• Ask the attorney to review their work and provide feedback, orally or through notes or stickers affixed to the work
• Use calendar reminders or ticklers to create tasks or “To Dos” that include review and approval of work
• Discuss with the attorney any ethical concerns or questions as they arise; if necessary, create an appointment on the attorney’s calendar for this discussion
• Complete assigned work well before the deadline to ensure adequate time for the attorney to review it
• Enlist the help of the law office manager/administrator or another attorney in the law office if the supervising attorney repeatedly provides inadequate supervision, despite these other efforts

Speaking to your supervisor about inadequate supervision can be uncomfortable. It’s important to be tactful and professional. Expressing your desire to provide the client with the best quality legal services while avoiding the negative consequences of potential ethical violations or UPL is an excellent strategy.

Legal Advice and UPL

Caution

Under no circumstances should a non-attorney ever give anyone legal advice. The reason a person hires an attorney is to receive legal advice regarding their legal questions or legal matters. However, friends and family may unintentionally seek legal advice from you, as someone who has paralegal education. You must be incredibly careful to avoid providing legal advice during these discussions.

But what is legal advice? Generally, if you apply legal knowledge to facts and give an opinion about how the legal knowledge impacts or relates to the facts, you are giving legal advice. Legal advice can take many forms, such as

• Recommending a course of conduct or action that a person should or should not take
• Suggesting options for actions/inactions, or describing the pros, cons, or potential consequences of those options
• Evaluating the strengths or weaknesses of a case or legal action (sometimes called “merits”)
• Predicting a positive or negative outcome regarding a case, legal action, or legal proceeding
• Calculating or stating with certainty how long a legal action might take
• Explaining legal rights, obligations, or legal claims
• Interpreting statutes, court decisions, documents, contracts, insurance policies, etc.

In each of the examples above, you would be using your legal education, training, or experiences to help someone decide what to do or understand a legal document. That is the essence of legal advice.

Sometimes, however, all that is needed is legal information. Legal information is much more general than legal advice; it typically points someone to information that can be accessed anywhere, provides general information/definitions, or suggests appropriate resources for information. Examples of legal information include

• Providing the “plain English” or dictionary definition of legalese
• Giving general explanations of legal claims and procedures
• Describing the “typical” steps that are taken in a case
• Directing a person to a legal website for information
• Providing a person with samples of legal or court forms (without telling the person which forms to use or how to complete them)

As long as the information does not include evaluations, recommendations, or instructions, it is generally safe for non-attorneys to provide it to other persons. Because the distinction between legal advice and legal information can be somewhat fuzzy if there is any doubt about whether what you are about to communicate might be legal advice, keep it to yourself. Instead, explain that the most qualified person to provide the best answers is an attorney, and that if you were to provide the answer you would be breaking the law.

When it comes to compliance with legal ethics, there is little to no room for “trial and error.” Legal practitioners must always behave in an ethical, professionally responsible manner, anticipating and avoiding potential violations. Think before doing or speaking; seek guidance and direction from your supervising attorney; and remember that you represent a profession that demands the utmost in personal and professional integrity.