Practice of law
From Wikipedia, the free 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 negotiations and court proceedings such as lawsuits, 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 independent paralegals are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be drafted 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.
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[edit] United States perspective
In the United States, the practice of law is conditioned upon 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.
[edit] Unauthorized practice of law
The "unauthorized practice of law" (UPL) is prohibited in every state[citation needed] by statute, regulation, or court rules.[1] 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. [2] Some states also criminalize the separate behavior of falsely claiming to be lawyer (in Texas, for example, this is a felony). [3]
Interpretations of the term "unauthorized practice of law" vary among jurisdictions. For example, the use of independent paralegals in California is tolerated to a high degree. Many of the activities paralegals perform in California would be considered the "unauthorized practice of law" if performed in New York.
Most unauthorized practice of law may be unintentional. Probably the most common violators are accountants, paralegals, public notaries, and people who formerly worked for an attorney. Many times what seems to them to be "common knowledge" or "just helping out a friend" in fact crosses the line into practice of law. For instance, many accountants who represent small businesses will "fill out some forms" to create a corporation. They are drafting legal documents, which requires a law license. A notary public who reads instructions, asks questions, and tells a person which forms to use and how to fill them out may be giving legal advice. Buying a legal form in a store and helping a friend fill it out involves giving legal advice and drafting legal documents.
In most states, unauthorized practice of law is a criminal offense. However, while there are cases of individuals being prosecuted for the unauthorized practice of law, absent fraud, theft, or serious violations of consumer protection laws, common practice is simply to explain to the person that the questioned activities constituted unauthorized practice of law and get an agreement that the person will desist.
[edit] References
- ^ 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 (Ariz. 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 (Ariz. 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." Id. at 588.
- ^ Tex. Gov’t Code sec. 38.123. Chapter 38 of the penal code, containing 38.122 and 38.123, is available from state.tx.us
- ^ Tex. Gov’t Code sec. 38.122
