We Walk a Thin Line . . . a Tight Tightrope

by Susan Daugherty

I was accused of UPL ... I couldn’t believe my eyes. There I was, reading through documents my husband received from his ex’s attorney. My husband was appearing pro se, and, lo and behold ... a request to the court to prohibit him from "using the services of a paralegal." It continued with broad-based, but serious, allegations against me and cited the state’s statute and (mis)cited the state’s supreme court opinions prohibiting paralegals from engaging in the unauthorized practice of law.

I was mortified ... amazed ... and absolutely livid! Worse yet, in my very conservative state, I was afraid that these allegations could actually result in criminal prosecution, imprisonment, and fines, ending my career.

So, why am I telling about this embarrassment? The way I figure it, many paralegals face the same possibility at some time in their career. After all, even while we are still in school, people begin asking us about how to proceed in their legal matters ... off the record, of course.

Do we respond off the record? Or, do we reply that we cannot answer because to do so would be engaging in the unauthorized practice of law, which is prohibited by law. What a pious thought ... albeit the right response. I’m willing to bet that most readers among us have given some form of well-intentioned and seemingly innocent legal advice to Mom, Dad, Sis or a dear friend. And, giving legal advice is UPL Does that mean we’ve broken the law?

The NFPA Model Code of Ethics and Professional Responsibility and Guidelines for Disciplinary Enforcement states at EC- 1.8, "A paralegal shall not engage in the unauthorized practice of law" and further, "A paralegal shall comply with the applicable legal authority governing the unauthorized practice of law in the jurisdiction in which the paralegal practices."

NFPA’s research reveals that, generally, the practice of law is defined as giving legal advice , signing legal documents, appearing in court or before other tribunals on behalf of another (except where permitted by statute, rule, regulation or opinion) and setting, negotiating or accepting fees for legal services.

If Mom and Dad are about to lose their house because an improper judgment was obtained against them ... or Little Sister gets an offer to settle her fender bender for just the property damage ... or Great grandpa passes on with only a few dollars and no will ... what’s really prohibited when it comes to helping with legal matters that affect us personally? What’s the likelihood of off-the-record advice given to a close family member coming back to haunt us? Where should we draw the line?

If we literally interpret statutes and opinions prohibiting the unauthorized practice of law, we cannot advise anyone, even a spouse. about his or her legal fights, obligations or responsibilities. With that being said, we can suggest who friends or relatives might contact with a legal problem, but we cannot make calls to courts and other agencies to request information on their behalf We can help friends or relatives to type a legal document, but we may not tell them which forms they need to use to pursue or respond to a legal problem. Oh, and be careful about charging fees—fees just seem to raise those UPL demons every time.

The biggest dilemma comes over morning coffee or across the dinner table, discussing a legal matter with a loved one. Obviously, we can always represent ourselves—anybody can, regardless of whether he or she has legal knowledge and/or training.

We also can refer anyone to an attorney; we can even call the attorney to make an introduction for our friend. We could even tell our friend to take to an initial meeting with the attorney certain paperwork that the attorney will need.

But how about friends or relatives asking for more because they want to proceed pro se—without an attorney—and represent themselves? Even if the person swears not to tell, the hardest thing to realize is that by giving an opinion, a/k/a advice, we could be hurting them.

We have to be very careful to ensure that we do not give advice that could affect their rights, obligations, or responsibilities. Plain and simple—we have to tell them that we just can’t help them. Suppose that they follow something we say and it is wrong, or they interpret our advice wrongly or, suppose that we don’t know all the facts when we respond, or we don’t know all the laws that might apply to their particular set of circumstances. We do not want to take the chance that we limit their legal options or recourse.

To confuse matters even more, each state interprets UPL differently. Much depends on the tasks performed or assistance rendered. Supposedly, clerical tasks aren’t UPL but try telling a court that you did not assist in phrasing the information on a form when you are the relative of the informed pro se party Try explaining how your relative cited the appropriate court rule or procedure, even if you handed the relative your court rules or the relative copied a citation from something written by the adversarial counsel. Law librarians aren’t accused of UPL when they direct a person to the set of statutes or reporters, but try telling the court that you didn’t show your relative how to find the cases in the statute’s notes and help your relative to understand die legalese.

We have to draw the line, but where? We can look at the ABA Model Code of Professional Responsibility, EC 3-5. It states the practice of law is anything that calls for the professional judgment of a lawyer and defines "professional judgment" as "the lawyer’s educated ability to relate the general body and philosophy of law to a specific legal problem of a client..."

Further, we might determine whether something requires that judgment by looking at the Rule’s annotation for common tests that determine whether the activity is the practice of law:

• if it requires legal skill and knowledge of law above that of the average lay citizen;
• if it constitutes advice, counsel, or services concerning binding legal rights or remedies of the client or recipient of the services; and
• if it is one customarily performed or commonly understood to be performed by lawyers.

Still, all of this is so esoteric! No law or guidance is going to stop us from wanting to help friends or family members in need. But the bottom line is this: giving any advice may result in reducing... or, worse yet... ruining your friends’ or family members’ chances to pursue all available legal options.

Then they have no other recourse but to blame you. Just how far a relative, friend or attorney who eventually may be consulted takes that blame depends on how much they were damaged or how close they are to you. Worst case scenario? You could be facing a civil suit for damages as well as charged with UPL, a criminal offense in many states.

Fortunately for me, in my husband’s case, the defense counsel’s request was not based in fact or law, so, with my certification attached to his rebuttal, the court was convinced that the ex’s request should be denied. All I had done were clerical tasks—typing, delivering and faxing legal documents that he signed, or arranging for exhibit copying services.

While none of these tasks constituted UPI, even in my state, the attempt was an incredible ploy to divert the court’s attention from the real issues before it. Ironically, defense counsel was unaware of supreme court activities surrounding paralegals in my state, so adding that information in the certification might have helped in my defense. More important for the paralegal profession as a whole is the fact that the court’s decision specifically stated that "the assistance provided to [a] spouse is not found to be the unauthorized practice of law."

No question about it—we walk a very narrow line when we are involved personally in legal matters. I might not have been able to respond if I had not known the UPL statute and opinions in my state, or if I had not learned so much from NFPA’s research on ethics and UPL.

I have exposed my personal embarrassment to help someone else avoid engaging in UPL. Be careful when helping friends and family members, no matter how tempting or easy it is for you. Keep current with your state’s activities on UPL. If you are the unlucky target of a UPL allegation, seek information from NFPA for your sake, and for the sake of all of us.

Susan D. Daugherty is a past president of NFPA and South Jersey Paralegal Association. She has been a litigation paralegal for 16 years and was selected for the 1999 Judge William Robie Leadership Award.

Reprinted with permission National Paralegal Reporter. First appeared in the National Paralegal Reporter, Year End 1999, Vol. 24, No. 3. The National Paralegal Reporter is the publication of the National Association of Paralegal Associations, Inc. (NFPA)