Marsh PARALEGAL UPL (updated)

PARALEGALS

and the Unauthorized Practice of Law

Toni Marsh, JD
202.510.4163
[email protected]

GEORGE WASHINGTON UNIVERSITY
PARALEGAL STUDIES PROGRAM

cps.gwu.edu/paralegal

WHO are paralegals?

Chose the profession & will make it a career
Educated, savvy, sophisticated
Contributing members of legal teams

“Paralegal” means a person who holds himself or herself out to be a
paralegal,
who is qualified by education, training, or work experience,
who either contracts with or is employed by an attorney, law firm,
corporation, governmental agency, or other entity, and
who performs substantial legal work under the direction and
supervision of [an attorney],
that has been specifically delegated by the attorney to him or her.

California Business and Professions Code, CHAPTER 5.6. Paralegals 6450 (a)

WHAT do paralegals know?

Curriculum subject to rigorous review
Geared to local market
Current and relevant

Practical skills & substantive law

WHAT can paralegals do?

Plan cases
Legal & factual research

Interview clients
Draft documents
Represent clients in admin hearings

WHAT can paralegals do?

Collect, compile, and utilize technical information
to make an independent decision and
recommendation to the
supervising attorney

CAN’TWhat paralegals do?

Paralegals are
governed by the
same code of ethics
as their supervising
attorneys:
The Rules of
Professional
Conduct

CAPA Ethics Guidelines

A paralegal shall always disclose his/her status as a non-lawyer

A paralegal shall not establish an attorney-client relationship, set fees,
sign documents which require an attorney’s signature, or appear in
court on behalf of a client, unless authorized by law

A paralegal shall exercise great care and professional judgment in
determining the extent to which a client may be assisted without
requiring the presence of a licensed attorney

A paralegal may communicate legal advice authorized by the attorney
to a client so long as they do not interpret or expand upon that
advice

Two classes of prohibited conduct:

Things paralegals can’t do unless an attorney supervises
Things paralegals can’t do at all ever

Provide legal advice

Represent a client in court

Select, explain, draft, or recommend the use of any legal document to or for any
person other than the attorney who directs and supervises the paralegal

Act as a runner or capper

Engage in conduct that constitutes the unlawful practice of law

Contract with, or be employed by, a natural person other
than an attorney to perform paralegal services

Induce a person to make an investment, purchase a financial
product or service, or enter a transaction from which income or

profit, or both, purportedly may be derived

Establish fees

Things paralegals can’t do
unless an attorney is
supervising

Anything

WHAT is legal advice?

Use independent
judgment

To alter the
legal position
Of a lay person

WHAT is Unauthorized Practice
of Law?

Advertising or holding oneself out as practicing or entitled to
practice law, OR actually practicing law

While one is not an active member of the California State Bar or
otherwise authorized to practice law by a statute or court rule.

HOW do courts and bars define “practicing law”?

“It is neither necessary nor desirable to attempt
the formulation of a single, specific definition of
what constitutes the practice of law.”

~ABA EC 3-5

The California Business & Professions Code doesn’t provide a definition
of “practicing law.” But California courts have determined that it
includes:

Performing services in litigation

Providing legal advice and counsel, and

Preparing legal instruments and contracts that secure legal rights — even
if the matters involved don't have anything to do with lawsuits or the
courts

Shouse Law Group

Rendering services for others that call for
professional judgment of a lawyer

~ABA EC 3-5

In re Reynoso: Creating and selling subscriptions to a software program
that will prepare bankruptcy filings for customers

Beninghoff v Superior Court: Representing people in state administrative
hearings, such as professional license suspension proceedings

Bluestein v State Bar: Giving advice about the law of other states or a
foreign country

In re Garcia: Preparing stipulations and releases

For paralegals
the most common
situation will be
giving legal advice

and it will be
informal

Photo by Cole Huston in Unsplash

Notarías can translate and explain document to clients
but can’t represent them in courts or provide legal advice

IN RE: DISCIPLINE OF Glen LERNER, Esq.,
Decided: December 24, 2008

Attorney licensed in Arizona but not Nevada

What constitutes the practice of law must be
determined on a case-by-case basis, bearing in
mind the overarching principle that the practice
of law is involved when the activity requires the
exercise of judgment in applying general legal
knowledge to a client's specific problem

IN RE: DISCIPLINE OF Glen LERNER, Esq.,
Decided: December 24, 2008

…a legal issue that cannot be handled by resort to
routine forms or customs

…the services include applying the general body
of legal knowledge to a client’s specific problem

Examples of UPL

Nevada: Paralegal licensed as attorney in AZ but not NV
conducted negotiations with Progressive, including preparing and
transmitting policy limits demand letters between April and June
2005
Florida: Paralegal engaged in the unauthorized practice of law by
engaging in settlement negotiations, including discussing case
authority and legal strategy with clients; speaking on clients'
behalf; and arguing the legal merits of the clients' cases
Colorado: Advising a client about his or her legal rights and
recommending future actions
Nevada: Negotiating settlement of a client's claims
Kansas: Preparing and signing demand letters

A key distinction: whether the services apply general body of legal knowledge to a client's
specific problem

Colorado Supreme Court: A “touchstone” of whether an activity constitutes UPL is whether
an unlicensed person offers “advice or judgment about legal matters to another person for use
in a specific legal setting.”

Tennessee bankruptcy court: The practice of law “relates to the rendition of services for
others that call for the professional judgment of a lawyer, that is, the lawyer's educated ability
to relate the general body and philosophy of law to a specific legal problem of a client.”

The Ninth Circuit, Oregon: “‘The exercise of professional judgment in applying legal
principles to address another person's individualized needs through analysis, advice, or other
assistance.’ ”

For example, simply providing forms or offering to type client-provided information onto the
forms was not the practice of law, but advising the client about how to complete a form, e.g.,
what information to include and on what portions of the form, was the practice of law.