Scruples
The Unauthorized Practice of Law in Texas
Laurie
Borski,
Chair,
Professional Ethics Committee
Paralegals are prohibited from practicing law, to do otherwise is to engage
in the unauthorized practice of law (UPL), which is illegal. Substantive legal
work performed by a paralegal under the direction and supervision of an attorney
who is licensed to practice law is not UPL.
To practice law in Texas means:
[T]he preparation of a pleading or other document incident to an action or
special proceeding or the management of the action or 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, the legal effect of which under the facts and conclusions involved
must be carefully determined.
The definition . . . is not exclusive and does not deprive the judicial branch
of the power and authority . . . to determine whether other services and acts
not enumerated may constitute the practice of law. 1
Practicing law in Texas is limited to members of the State Bar and others who
comply with the rules set forth by the Texas Supreme Court. Graduating from an
approved law school and passing the bar examination are not the only
prerequisites to practicing law. Qualified candidates must also undergo a
character and fitness review by the Texas Board of Law Examiners. These are all
safeguards put in place to ensure high standards for those that provide legal
services. These safeguards also protect those who seek and receive legal
services. As stated in the Texas Disciplinary Rules of Professional Conduct:
Courts generally have prohibited the unauthorized practice of law because
of a perceived need to protect individuals and the public from the mistakes of
the untrained and the schemes of the unscrupulous, who are not subject to the
judicially imposed disciplinary standards of competence, responsibility and
accountability. 2
An example of activities that would involve UPL if independently performed by
a paralegal who was not supervised by a licensed attorney would be: interpreting
statutes, decisions or legal documents; evaluating or speculating on the
probable outcome of litigation or negotiations; outlining rights or obligations;
or recommending a course of conduct or particular action in a legal matter.
Practicing law is further regulated by statute:
(a) [A] person . . . may not charge or receive, directly or indirectly, any
compensation for all or any part of the preparation of a legal instrument
affecting title to real property, including a deed, deed of trust, mortgage,
and transfer or release of lien.3
The Texas Penal Code prohibits one who is not licensed to practice law from
holding himself out to be a lawyer if it is done with intent to obtain economic
benefit. 4 The Penal Code also states that certain actions related to
a personal injury claim are also prohibited if done with intent to obtain
economic benefit. 5 The courts have held that contracting to
represent persons regarding personal injury and property damage claims,
preparing and sending demand letters, and settling personal injury and property
damage claims with insurance companies constitutes the unauthorized practice of
law if done by a non-lawyer with an intent to obtain economic benefit. See Greene
v. Unauthorized Practice of Law Committee, 883 S.W. 2d 293 (Tex. App. w
Dallas 1994,no writ). See also Brown v. Unauthorized Practice of Law
Committee, 742 S.W. 2d 34 (Tex. App. Y Dallas 1987, writ denied.)
The Unauthorized Practice of Law Committee (UPLC) is appointed by the Texas
Supreme Court and is comprised of nine members, both lawyers and non-lawyers. 6
The UPLC is charged with eliminating UPL and reporting to the Texas Supreme
Court and the State Bar on its activities. Complaints of UPL received by the
UPLC are investigated. If needed, civil lawsuits are filed to enjoin the
unauthorized practice of law. Complaints can be made online or by mail.
Laurie Borski is the Chair of the Professional Ethics Committee of the
Paralegal Division. She has served on the Annual Meeting and Election Committees
and is a past president of the Alamo Area Professional Legal Assistants in San
Antonio. You can reach her at 210.250.6041 or laurie.borski@strasburger.com.
1 Tex. Gov. Code, ¤81.101.
2 Texas Disciplinary Rules of Professional Conduct, Comment to Rule 5.05.
3 Tex. Gov. Code, ¤83.001.
4 Tex. Penal Code, ¤38.122.
5 Tex. Penal Code, ¤38.123.
6 For more information, see the Texas UPL Committee website at www.txupl.org
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