Editing Practice of law

{{Short description|Acting as a lawyer}}
{{Distinguish|Legal practice}}
{{Globalize|article|USA|2name=the United States and Singapore|date=December 2016}}
{{professional responsibility}}
{{Competition law}}
In its most general sense, the '''practice of law''' involves giving [[legal advice]] to clients, drafting legal documents for clients, and representing clients in legal [[negotiation]]s and [[court]] proceedings such as [[lawsuit]]s, and is applied to the professional services of a [[lawyer]] or [[attorney at law]], [[barrister]], [[solicitor]], or [[civil law notary]]. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by  [[Agency (law)|agents]]. These professions include [[real estate]], [[banking]], [[accounting]], and [[insurance]]. Moreover, a growing number of [[legal document assistant]]s (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by [[computer]]-assisted drafting libraries, where the clients are asked a series of questions that are posed by the [[software]] in order to construct the [[Legal instrument|legal documents]].  In addition, regulatory [[consulting firm]]s also provide advisory services on [[regulatory compliance]] that were traditionally provided exclusively by law firms.

==United States==
In the [[United States]], the practice of law is conditioned upon [[Admission to practice law|admission to practice of law]], and specifically [[Admission to the bar in the United States|admission to the bar]] of a particular [[U.S. state|state]] or other territorial [[jurisdiction]]. The [[American Bar Association]] and the [[American Law Institute]] are among the organizations that are concerned with the interests of lawyers as a profession and the promulgation of uniform standards of professionalism and ethics, but regulation of the practice of law is left to the individual states, and their definitions vary.<ref name="ABA">{{cite web |url=http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf |title=State Definitions of the Practice of Law |publisher=[[American Bar Association]] |access-date=April 29, 2011|url-status=dead|archive-url=https://web.archive.org/web/20160114222449/https://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf|archive-date=14 January 2016}}</ref>

===Unauthorized practice of law===

"Unauthorized practice of law" (UPL) is an act sometimes prohibited by [[statute]], [[regulation]], or court rules.<ref name="ABA"/>

====Definition====
The definition of "unauthorized practice of law" is variable, and is often conclusory and [[tautology (rhetoric)|tautological]],<ref name="Garner">{{cite book |editor-last1=Garner |editor-first1=Bryan A. |title=Black's Law Dictionary |year=1999 |url=https://archive.org/details/blackslawdiction00garn_900 |url-access=limited |edition=7th |place=St. Paul MN |publisher=West |pages=[https://archive.org/details/blackslawdiction00garn_900/page/n1223 1191]–1192 |editor-link=Bryan A. Garner}}</ref> ''i.e.'', it is the doing of a lawyer's or [[counsel]]or's work by a non-lawyer for money.<ref name="ABA"/>  There is some agreement that appearing in a legally constituted court in a legal proceeding to represent clients (particularly for a fee) is considered to be unauthorized practice of law.<ref name="ABA"/><ref name="Garner"/> But other variations are subject to interpretation and conflicting regulation, particularly as to the scope and breadth of the prohibition.<ref name="ABA"/>  ''Black's Law Dictionary'' defines unauthorized practice of law as "The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction."<ref name="Garner"/>

The [[Restatements of the Law|Restatement]] (Third) of the Law Governing Lawyers notes:

<blockquote>The definitions and tests employed by courts to delineate unauthorized practice by non-lawyers have been vague or conclusory, while jurisdictions have differed significantly in describing what constitutes unauthorized practice in particular areas.</blockquote>

<blockquote>Certain activities, such as the representation of another person in litigation, are generally proscribed.  Even in that area, many jurisdictions recognize exceptions for such matters as small-claims and landlord-tenant tribunals and certain proceedings in administrative agencies.  Moreover, many jurisdictions have authorized law students and others not locally admitted to represent indigent persons or others as part of clinical legal education programs. ...<ref name="Garner"/><ref name="restatement">{{cite book |title=Restatement (Third) of the Law Governing Lawyers |publisher = American Law Institute|year=1998 |edition=4 cmt c}}</ref></blockquote>

What is more controversial is out-of-court activities, particularly drafting of documents and giving advice, and whether that is considered to be unauthorized practice of law.<ref name="Garner"/><ref name="restatement"/> Some states have defined the "practice of law" to include those who appear as a representative in arbitration or act as arbitrators in disputes.<ref name="Spector">{{cite journal |url=http://www.schiffhardin.com/binary/spector-arbitration.pdf |title=Arbitration and The Unauthorized Practice of Law |journal=[[ARIAS Quarterly U.S.]] |publisher=AIDA Reinsurance & Insurance Arbitration Society |date=First Quarter 2006 |volume=13 |pages=16–19 |first1=David M. |last1=Spector |first2=Jessica |last2=Romero |access-date=May 18, 2011 |issue=1 |url-status=dead |archive-url=https://web.archive.org/web/20110725085329/http://www.schiffhardin.com/binary/spector-arbitration.pdf |archive-date=July 25, 2011 }}</ref>  For example, there is a growing conflict between the multijurisdictional practice of law in arbitration proceedings in the financial service industry and state regulation of lawyers.<ref name="BNA">{{cite journal|url=http://www.uslawwatch.com/2010/08/16/finance/bna-insights-state-regulation-unauthorized-practice-law-arbitration-mediation-trend-permitting-multijurisdictional-practice-alternative-dispute-resolution/  |title=BNA INSIGHTS: State Regulation of Unauthorized Practice of Law in Arbitration and Mediation: The Trend Toward Permitting Multijurisdictional Practice in Alternative Dispute Resolution |date=August 16, 2010 |journal=Securities Regulation & Law Report |publisher=[[Bureau of National Affairs]] |access-date=May 18, 2011}}</ref>  With a few exceptions, the general rule is that an appearance at an arbitration does not constitute the practice of law.<ref name="Bennett">{{cite book |url=https://books.google.com/books?id=VfRtIxtVG48C&q=arbitration+as+unauthorized+practice+of+law&pg=PA175 |title=Arbitration: essential concepts |first1=Steven C. |last1=Bennett |pages= 175–178 |place=New York |date=May 2002 |publisher=Incisive Media, LLC |isbn= 978-0-9705970-8-3}} {{ISBN|0-9705970-8-8}}.</ref>

The [[United States bankruptcy court]] for the [[United States District Court for the Eastern District of Tennessee|Eastern District of Tennessee]] has held that "providing clients with explanations or definitions of such legal terms of art ... is, by itself, giving legal advice."<ref name=software/><ref name=nbc/> The [[North Carolina State Bar]] has held that "definition of lien law terms, warnings regarding time requirements, and reminders about sending out preliminary notices within five to ten days of beginning work, when combined with its preparation of legal documents [in the manner described], constitute providing legal advice."<ref name=software>{{cite news|title=Can Software Practice Law? The Unauthorized Practice of Law and Technology|first=Nate|last=Budde|date=11 April 2014|work=The Lien & Credit Journal|url=http://www.zlien.com/articles/can-software-practice-law-upl-technology/|access-date=14 April 2014|archive-url=https://web.archive.org/web/20140415004141/http://www.zlien.com/articles/can-software-practice-law-upl-technology/|archive-date=15 April 2014|url-status=live}}</ref><ref name=nbc>North Carolina State Bar v. Lienguard, Inc., [http://www.ncbusinesslitigationreport.com/uploads/file/2014NCBC%2011.pdf 2014 NCBC 11]</ref>

[[Texas]] law generally prohibits a person who is not an attorney from representing a client in a personal injury or property damage matter, and punishes a violation as a misdemeanor.<ref>[http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/htm/pe.008.00.000038.00.htm Tex. Gov’t Code sec. 38.123.  Chapter 38 of the penal code, containing 38.122 and 38.123] {{webarchive |url=https://web.archive.org/web/20090501190606/http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/htm/pe.008.00.000038.00.htm |date=May 1, 2009 }}</ref> Some states also criminalize the separate behavior of falsely claiming to be lawyer (in Texas, for example, this is a felony if done to obtain economic benefit).<ref>Tex. Gov’t Code sec. 38.122</ref>

====Enforcement====
Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. In Florida, the unauthorized practice of law is a third degree felony,<ref>[http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0454/Sections/0454.23.html §454.23 Fla. Stat.] (2016)("Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state ... commits a felony of the third degree."</ref> which is punishable by up to six months in prison<ref>[http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.082.html §775.082(3)(e) Fla. Stat.](2016)</ref> and $5000 in fines.<ref>[http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.083.html §775.083(1)(c) Fla. Stat.] (2016)</ref> [[New Jersey]] has a law which makes it a "[[Disorderly conduct|disorderly person]]s offense" to knowingly to engage in the unauthorized practice of law, and a "crime in the fourth degree" to commit UPL if one (a) creates a false impression that one is a lawyer; (b) derives a benefit from UPL, or (c) causes an injury by UPL.<ref name="Federalist"/>{{Cite NJSA|title=2C|chapter=21|section=22|citeonly=true}} In a 2015 survey by the American Bar Association, Florida had the largest budget—$1.8 million—nationwide for prosecuting the unauthorized practice of law.<ref>{{cite web|last1=Draper|first1=Lindsay|title=2015 Survey of Unlicensed Practice of Law Committees|url=http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2015_upl_report_final.authcheckdam.pdf|publisher=American Bar Association|access-date=17 December 2016|date=September 2015|quote=The Florida Bar continues to lead the country in funding UPL enforcement, spending approximately $1.8 million annually.}}</ref>

The state has interest in protecting the public from having unqualified persons hold themselves out as licensed professionals, but the existence of laws against unauthorized practice of itself does not guarantee that unlicensed professionals will be detected and those laws enforced.<ref>{{cite journal |last1=Hogan |first1=Daniel B. |title=The effectiveness of licensing: History, evidence, and recommendations. |journal=Law and Human Behavior |date=1983 |volume=7 |issue=2–3 |pages=117–138 |doi=10.1007/BF01044517|s2cid=112414536 }}</ref><ref>{{cite journal |last1=Rhode |first1=Deborah L. |title=The Delivery of Legal Services by Non-Lawyers |journal=Georgetown Journal of Legal Ethics |date=1990 |volume=4 |page=209}}</ref>

====History and future====
The American Bar Association proposed model rules regarding the unauthorized practice of law, which Judge [[Richard Posner]] characterized as an attempt to perpetuate a monopoly to the disadvantage of consumers.<ref name="Federalist">{{cite web |url=http://www.fed-soc.org/publications/detail/the-abas-attack-on-unauthorized-practice-of-law-and-consumer-choice |title=The ABA's Attack on "Unauthorized" Practice of Law and Consumer Choice |date=May 1, 2003 |first1=George W.C. |last1=McCarter |publisher=[[The Federalist Society|The Federalist Society for Law and Public Policy Studies]] |access-date=April 29, 2011}}</ref> The judge observed that the legal profession is "a cartel of providers of services relating to society's laws" which cartel's focus is to restrict entry. "Modern economists call it '[[Rent-seeking|rent seeking]]', but throughout recorded history, skilled crafts and professions have tried to raise their members' incomes by using the power of the state to limit entry."<ref name="Federalist"/>

The practice of law was not formally regulated in [[Arizona]] for a time. However, the Arizona Supreme Court found independent inherent authority to regulate the practice of law.<ref>''In re Creasy'', 198 Ariz. 539 (2000). See generally Jonathan Rose, "Unauthorized Practice of Law in Arizona: A Legal and Political Problem That Won't Go Away", 34 Ariz. St. L.J. 585.</ref> Arizona's statute criminalizing unauthorized practice of law was allowed to lapse from a [[Sunset provision|sunset law]] in 1985. Rose suggests that legislative proposals to recriminalize the unauthorized practice of law have heretofore failed because of anti-lawyer sentiment in Arizona politics.<ref>''Id.'' at 593.</ref> Moreover, Rose asserts that resentment lingers from an unpopular interpretation of the old statute in ''State Bar v. Arizona Land Title & Trust Co.'', 90 Ariz. 76 (1961). This ruling imposed sanctions on a title and realty company engaged in drafting contracts. Rose says, "Throughout the country, various jurisdictions have developed numerous tests for defining the practice of law. But none is broader nor more all-encompassing than that articulated in ''Arizona Title''."<ref>Rose at 588.</ref>

====Attorney participation====
In the United States, the rules of professional conduct generally prohibit an attorney from assisting a non-attorney from engaging in the unauthorized practice of law. An attorney therefore may not partner with or split fees with a non-attorney in the performance of any sort of legal work. Furthermore, an attorney may not employ a disbarred or suspended attorney in a legal practice where former clients of the disbarred or suspended attorney will be represented. <ref>{{Cite web |title=Formal Opinion 1998-01 |url=http://nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-1998-01-attorney-employing-disbarred-or-suspended-attorney-to-work-in-law-office-aiding-unauthorized-practice-of-law |access-date=2022-09-15 |website=nycbar.org |language=en}}</ref>

==Singapore==

=== Unauthorized practice of law ===
In [[Singapore]], it is a criminal offence if an unauthorised person pretends to be a qualified lawyer or carries out any act that may be performed only by a qualified lawyer. The relevant provision is section 33 of the Legal Profession Act. The acts that may be performed only by a qualified lawyer are set out in section 33 of the Legal Profession Act and case law.{{Cn|date=January 2022}}

==See also==
*[[Disbarment]]
*[[Law]]
*[[Law degree]]
*''[[Law Society of British Columbia v. Mangat]]''

==References==
{{Reflist}}

==External links==
* {{cite web|url=http://lawyerist.com/what-would-happen-without-unauthorized-practice-of-law-statutes/ |title=What Would Happen Without Unauthorized Practice of Law Statutes? |publisher=Lawyerist.com |date=2011-12-03 |access-date=2013-07-02}}

{{Law}}
{{Authority control}}

[[Category:Practice of law| ]]
[[Category:Jurists| ]]
[[Category:Solicitors]]
[[Category:Monopoly (economics)]]
[[Category:Competition law]]
[[Category:Jurisprudence]]