Unauthorized Practice of Law
by Reed K. Bilz, Secretary, Fort Worth District 7 and 14B Unauthorized Practice of Law Subcommittee
What is the unauthorized practice of law (UPL)? How do you recognize it? What do you do if you observe someone committing it? What happens if you report someone for committing it? Paralegals, attorneys, judges and others in Texas are frequently asked these questions, and this article will provide some answers.
To answer the first question, UPL is simply practicing law without a license. And what constitutes practicing law? Section 81.101 of the Texas Government Code defines the practice of law as: “The preparation of a pleading or other document incident to an action or special proceeding . . . on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument . . .” Therefore, if persons are doing any of these acts and they are not licensed to practice law in Texas, they are committing UPL.
It is easy to spot blatant UPL: a non-attorney representing a client in court, or preparing, signing, and filing a pleading. Subtle UPL, such as the “giving of [legal] advice,” is much harder to identify. Case law offers some help. In 1985, the Texas Supreme Court ruled that selecting and preparing immigration forms constitutes the practice of law.1 The Dallas Court of Appeals, in 1987, found that preparing and sending demand letters on PI claims and negotiating and settling such claims with insurance companies is practicing law.2 In a 1992 case, the Dallas Court of Appeals said that selling will forms and manuals was practicing law3, but in a 1999 case the Court said manuals and forms were okay if they conspicuously state that such items are not a substitute for the advice of an attorney.4 The 76th Legislature amended the Government Code to reflect this latter decision, adding section (c) to Section 1 of 81.102 which stated, “the ‘practice of law’ does not include the design, creation, publication, distribution, display, or sale, including . . . by means of an Internet web site, of written materials, books, forms, computer software, or similar products” if the products clearly and conspicuously have the disclaimer.5 Finally, the Appellate Court in Corpus Christi ruled that completing and filing mechanic’s lien forms was impliedly giving clients legal advice.6
Unauthorized practice of law is investigated and enforced by local UPL subcommittees appointed by the Supreme Court. These committees are made up of volunteers; attorneys, paralegals and others, who are assigned cases by the local chair who gets referrals from the State Committee. If UPL is observed, the State Committee has a web page (www.txuplc.org) with a form for reporting complaints. Complaints may also be submitted in writing. The State Committee passes on complaints to be investigated by the appropriate local subcommittee.
The addition of the State UPL web page has greatly increased the number of complaints, and consequently the committee work load.
What the UPL Committee Does:
The local committees meet 9 or 10 times per year for one to three hours depending on the status of cases. Members are assigned cases on a rotating basis; and the goal is to keep each member handling only two or three cases at a time. Being a member is worth 5 ethics CLE credits per year. Anyone interested in serving on a local subcommittee should contact the local Committee Chair.
A case begins with submission by a complainant; the case is then assigned by the Committee Chair to a member of the local subcommittee to investigate. Once UPL is established, the investigator sends a letter to the respondent stating that “the UPL committee has received information that [respondent] has engaged in activities which constitute the unauthorized practice of law.” The response, if any, is reviewed by the investigator and the committee to determine if further action is necessary. In many cases, if the respondents will sign an Affidavit stating they will not engage in UPL (specifically that which they are accused of) the committee will close the case.
If there is no response, or not a satisfactory explanation, the committee invites or subpoenas the respondent for a hearing before the committee to give testimony and answer questions.
When the committee decides UPL is involved, and respondent refuses to sign an Affidavit, the local committee asks the State UPL Committee for permission to file suit in District Court. Once permission is granted, the investigator prepares a Petition to Enjoin the Respondent from the Unauthorized Practice of Law and Other Related Services. Respondent must be personally served with the petition, and a TRO may or may not be necessary. Either way, a hearing is set and the attorney and investigator (if other than an attorney) appear in court and present their case against the respondent.
If the court finds respondent has engaged in UPL, an order is issued enjoining respondent as requested in the petition. Sometimes, as in a recent Tarrant County case, the respondent will sign an Agreed Judgment Granting a Permanent Injunction, and this precludes a hearing. If there is a subsequent complaint against the respondent, the committee files a Contempt Motion with the District Court. Repeat respondents have served jail time for committing UPL in violation of a court order.
The State Committee is also appointed by the Supreme Court of Texas and is made up of volunteer citizen members, and regional committee chairs. The committee meets on a quarterly basis around the state, and the members review reports from each local committee. When a local committee wishes to file suit against a respondent, the investigator presents a summary of the case for review and approval.
The UPL Committees are always ready to investigate valid complaints, and they welcome input from paralegals, attorneys, judges and others who are aware of existing UPL. Local committees are always in need of investigators to serve on the committee and work on cases submitted to it. This is a perfect fit for paralegals. Serving on a local UPL committee is interesting and rewarding work; a chance to give back to the legal community and work with others who are like-minded. And there is the added bonus of CLE hours.
Reed K. Bilz has been a paralegal since 1980; working for small firms, the Trinity River Authority, and taught paralegal studies at a proprietary school and UTA. She is currently freelancing for a solo practitioner, and serving as secretary of the local UPL committee. She holds a Bachelor of Arts from the University of Michigan and a Master from UTA.
1. Unauthorized Practice Committee, State Bar of Texas v Cortez, 692 S.W.2d 47 (Tex. 1985)
2. Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34 (Tex. App. - Dallas 1987)
3. Fadia v. Unauthorized Practice of Law Committee, 830 S.W.2d 162 (Tex. App. - Dallas 1992)
4. Unauthorized Practice of Law Committee v. Parsons Technology, Inc. D/b/a Quicken Family Lawyer 179 F.3d. 956 (5th Cir. 1999).
5. 76th Texas Legislature, Chapt. 799, H.B. No. 1507, Effective June 18, 1999.
6. Crain v. Smith, 22 S.W. 3d 58 (Tex. App. - Corpus Christi 2000).