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.
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.
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.
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 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.
Texas Paralegal Journal © Copyright 2006 by the Paralegal Division, State Bar of Texas.