Practice of law
Encyclopedia
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 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 posed by the software in order to construct the legal documents.
, the practice of law is conditioned upon admission to practice of law, and specifically admission to the bar
of a particular 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.
's or counsel
or's work by a non-lawyer for money. 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. But other variations are subject to interpretation and conflicting regulation, particularly as to the scope and breadth of the prohibition. Black's Law Dictionary succinctly defines "unauthorized practice of law. The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction. -- Abbr. UPL."
The Restatement of the Law
notes:
"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.
The "COMMERCIAL" practice of law,pleading for hire, should not be confused with the common law right to practice law. The former being fully subject to the regulation of law as a commercial endeavor, and the later being the exercise of a common right beyond legislation.
Sims v. Aherns, 271 SW 720 (1925)
"The practice of law is an occupation of common right."
"In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment [422 U.S. 806, 813] was proposed, provided that "in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel . . . ." The right is currently codified in 28 U.S.C. 1654."
"The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions." This prejudice gained strength in the Colonies where "distrust of lawyers became an institution." Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as "the lower classes came to identify lawyers with the upper class." The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a "sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class." In the heat of these sentiments the Constitution was forged." FARETTA v. CALIFORNIA, 422 U.S. 806 (1975)
Even for our founders this extreme dislike of injustice was not new for it had always been so when any system was controlled and manipulated by any group. To remove a mans life, liberty or Happiness and call it law was very clearly detailed as being out of bounds. Thus was the Declaration of Law, (Independence), penned to forever put those issues beyond the reach of the government without Due Process of law.
Under the common law, the practice of law is simply the full and equal protection of law coupled with securing all of the rights of the petitioner/defendent, by whomever takes up that task, to the exclusion of all others, even government!
"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. . . ."
The rest of the article goes on to describe out-of-court activities, particularly drafting of documents and giving advice, and whether that is considered to be unauthorized practice of law, which is more controversial.
"Unauthorized practice of law" (UPL) is an act sometimes prohibited by statute
, regulation
, or court rules.
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, 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. Arizona's statute criminalizing unauthorized practice of law was allowed to lapse from a 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. Id. at 593. 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 sanctioned 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." Rose at 588. For example, 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. Some states also criminalize the separate behavior of falsely claiming to be lawyer (in Texas, for example, this is a felony).
Despite the state's interest in protecting the public and so-called "learned professions" from having unschooled persons practicing them, and the state's insistence on enforcing a monopoly
, the existence of laws governing (or defining) "unauthorized practice of Law" does not, ipso facto mean that they will be enforced.
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. 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', 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." Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. Thus, New Jersey
has a law which makes it a “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.
Some states have defined the "practice of law" to include those who appear as a representative in arbitration or act as arbitrators in disputes. 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. With a few exceptions, the general rule is that an appearance at an arbitration does not constitute the practice of law.
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
to clients, drafting legal documents for clients, and representing clients in legal negotiation
Negotiation
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy...
s and court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
proceedings such as lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
s, and is applied to the professional services of a lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
or attorney at law
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
, or civil law notary
Civil law notary
Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State...
. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents
Agency (law)
The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when a person, called the agent, is authorized to act on behalf of another to create a legal relationship with a third party...
. These professions include real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
, banking, accounting, and insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
. Moreover, a growing number of legal document assistant
Legal document assistant
A legal document assistant in the United States is a non-lawyer authorized to assist with the preparation of legal instruments...
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
Computer
A computer is a programmable machine designed to sequentially and automatically carry out a sequence of arithmetic or logical operations. The particular sequence of operations can be changed readily, allowing the computer to solve more than one kind of problem...
-assisted drafting libraries, where the clients are asked a series of questions posed by the software in order to construct the legal documents.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the practice of law is conditioned upon admission to practice of law, and specifically admission to the bar
Admission to the bar in the United States
In the United States, admission to the bar is the granting of permission by a particular court system to a lawyer to practice law in that system. Each U.S. state and similar jurisdiction has its own court system and sets its own rules for bar admission , which can lead to different admission...
of a particular state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
or other territorial jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
. The American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
and the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...
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.
Unauthorized practice of law
Conversely, the definition of "unauthorized practice of law" is variable, and is often conclusory and tautological, i.e., it is the doing of a lawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
's or counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
or's work by a non-lawyer for money. 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. But other variations are subject to interpretation and conflicting regulation, particularly as to the scope and breadth of the prohibition. Black's Law Dictionary succinctly defines "unauthorized practice of law. The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction. -- Abbr. UPL."
The Restatement of the Law
Restatement of the Law
In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law...
notes:
"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.
The "COMMERCIAL" practice of law,pleading for hire, should not be confused with the common law right to practice law. The former being fully subject to the regulation of law as a commercial endeavor, and the later being the exercise of a common right beyond legislation.
Sims v. Aherns, 271 SW 720 (1925)
"The practice of law is an occupation of common right."
"In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment [422 U.S. 806, 813] was proposed, provided that "in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of . . . counsel . . . ." The right is currently codified in 28 U.S.C. 1654."
"The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions." This prejudice gained strength in the Colonies where "distrust of lawyers became an institution." Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as "the lower classes came to identify lawyers with the upper class." The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a "sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class." In the heat of these sentiments the Constitution was forged." FARETTA v. CALIFORNIA, 422 U.S. 806 (1975)
Even for our founders this extreme dislike of injustice was not new for it had always been so when any system was controlled and manipulated by any group. To remove a mans life, liberty or Happiness and call it law was very clearly detailed as being out of bounds. Thus was the Declaration of Law, (Independence), penned to forever put those issues beyond the reach of the government without Due Process of law.
Under the common law, the practice of law is simply the full and equal protection of law coupled with securing all of the rights of the petitioner/defendent, by whomever takes up that task, to the exclusion of all others, even government!
"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. . . ."
The rest of the article goes on to describe out-of-court activities, particularly drafting of documents and giving advice, and whether that is considered to be unauthorized practice of law, which is more controversial.
"Unauthorized practice of law" (UPL) is an act sometimes prohibited by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
, or court rules.
The practice of law was not formally regulated in Arizona
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
for a time. However, the Arizona Supreme Court found independent inherent authority to regulate the practice of law, 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. Arizona's statute criminalizing unauthorized practice of law was allowed to lapse from a sunset law
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the 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. Id. at 593. 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 sanctioned 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." Rose at 588. For example, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
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. Some states also criminalize the separate behavior of falsely claiming to be lawyer (in Texas, for example, this is a felony).
Despite the state's interest in protecting the public and so-called "learned professions" from having unschooled persons practicing them, and the state's insistence on enforcing a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
, the existence of laws governing (or defining) "unauthorized practice of Law" does not, ipso facto mean that they will be enforced.
The American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
proposed model rules regarding the unauthorized practice of law, which Judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
characterized as an attempt to perpetuate a monopoly to the disadvantage of consumers. 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', 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." Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. Thus, New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
has a law which makes it a “disorderly person
Disorderly conduct
Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...
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.
Some states have defined the "practice of law" to include those who appear as a representative in arbitration or act as arbitrators in disputes. 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. With a few exceptions, the general rule is that an appearance at an arbitration does not constitute the practice of law.
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.See also
- Admission to practice law (Admission to the bar)
- DisbarmentDisbarmentDisbarment is the removal of a lawyer from a bar association or the practice of law, thus revoking his or her law license or admission to practice law...
- LawLawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
- Law degreeLaw degreeA Law degree is an academic degree conferred for studies in law. Such degrees are generally preparation for legal careers; but while their curricula may be reviewed by legal authority, they do not themselves confer a license...
- Law Society of British Columbia v. MangatLaw Society of British Columbia v. MangatLaw Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113 is a leading Supreme Court of Canada decision where the Court held that a non-lawyer may be given the power to practice law under a federal statute even if it is contrary to a provincial legal profession legislation.-Background:The...