The Unauthorized Practice of Law

Cynthia Minchillo

What is the unauthorized practice of law (UPL)? In Texas, there is no law called "the unauthorized practice"; however, the State does define the "Practice of Law" in the Government Code, Section 81.101 as follows:

(a) In this chapter the "practice of law" means the 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.

(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law."

Texas State law also states who may practice law in the Government Code, Section 81.102 as a person that is a member of the Texas State Bar only. There is an exception to this rule and it relates only to a limited practice prescription from the supreme court for attorneys licensed in another jurisdiction; bona fide law students; and unlicensed graduate students who are attending or have attended a law school approved by the supreme court. This does not include paralegals.

The Texas Legislature has limited the practice of law to only those members of the State Bar of Texas. As reported by Miguel D. Wise, Editorial Subcommittee Chair of the State Bar Standing Committee on Legal Assistants, a committee of the supreme court was created to prevent violations of the Texas Government Code, Section 81.101(a) and 81.102. The Committee was given the power to take action against anyone to eliminate the unauthorized practice of law including filing of suits. If necessary, the Committee may obtain injunctive relief, file a motion for contempt and seek a monetary fine or imprisonment.

Most paralegals and attorneys rarely review this section of the Government Code as well as the Texas Disciplinary Code. Understanding this law and the parameters in which paralegals may work, will help any legal professional avoid ethical problems which may result in some form of sanctions.

First, it is going to be imperative that you and any supervising attorneys you work with are aware of any ethical codes and laws regarding UPL. Ground is being made to deter the unauthorized practice of law from non-lawyers who are not supervised. New steps have been taken by the Texas Legislature including a barratry act which applies to the attorney or any other member of the team. The Barratry Act prohibits the solicitation of "employment for himself [or herself] or another to prosecute or defend a suit if the intent is to obtain an economic benefit." If violated, a person can face criminal prosecution from a Class A misdemeanor to a third degree felony, and this is just one example.

Let’s break down Section 81.101 of the Government Code for a better understanding of UPL. Part (a) states that preparing pleadings, the management of an action on behalf of a client before a judge in court, services rendered outside of court, giving of advice or rendering any service by using legal skill or knowledge and the determination of the legal effect constitutes the practice of law. This could mean drafting or preparing a motion, decree, will, contract or any other instrument, pleading or document. However, under the direct supervision of any attorney, these tasks may be performed by a paralegal.

Second, part (b) of Section 81.101 states that part (a) is "not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law." This means that courts can further define what acts constitute the practice of law if not already listed above. There are several cases where courts have extended the definition of the "practice of law." See Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34 (Tex.App.-Dallas 1987). In Brown, the Court cites TEX.REV.CIV.STAT.ANN. art. 320a-1, Section 19(a) (Vernon Supp. 1987). "Courts inherently have the power to determine what is the practice of law on a case by case basis unrestrained by the statutory definition. Unauthorized Practice Committee, State Bar of Texas v. Cortez, 474 U.S. 980, 106 S.Ct. 384, 88 L.Ed.2d 337 (1985)." Tasks that attorneys can assign to paralegals can be endless if within the law, and if supervised.

When you break down the law, it looks as though paralegals could encounter a lot of trouble if they do not watch their step. On the other hand, it is also the responsibility of the supervising attorney to tailor assignments and supervise the paralegals accordingly. See Gill Sav. Ass’n v. International Supply, 759 S.W.2d 697, 703 (Tex.App. – Dallas 1988). Of course, attorney supervision is a topic in and of itself. In retrospect, know your limitations and educate your supervising attorney.

So now that you know you are not just restricted to the definition in Section 81.101 of the Texas Government Code, how do you avoid the unauthorized practice of law? Make sure that any tasks you perform as a paralegal are properly delegated by the supervising attorney, and that the attorney maintains responsibility for the work product.

There are many other ways to avoid UPL, and one of the best is plain and simple, do not give legal advice!! Even during the most innocent conversations with a client, friend or family member, you could be eliciting legal advice. First, consult with your supervising attorney before relaying any information. In both freelance and traditional settings where paralegals have heavy client contact, be careful not to lose balance by making sure your actions cannot be construed as unauthorized practice of law.

In an article written by Sue Kaiser, the President of the National Federation of Paralegal Associations, Sue gives some tips for freelance and traditional paralegals on how to avoid UPL:

1. Make certain that those with whom you communicate realize that you are a paralegal and that paralegals are not attorneys and cannot give legal advice.
2. When conveying information which may be construed as legal advice, you should clearly identify the source of the advice as the attorney, e.g., "I questioned Attorney Smith on the point that you raised, and the attorney’s opinion is that . . ."
3. Make certain that all legal documents or correspondence which may include information that could be construed as legal opinion are reviewed, approved and signed by the attorney.
4. Make certain that you communicate effectively with the attorney and keep him/her advised of your work and activities. Ensure that all your work is reviewed and approved by the attorney.

There are many ways that UPL is committed by non-lawyers other than what is set out in the Code, and paralegals need to be aware of them. One in particular is when a firm utilizes or hires a private investigator or adjuster. Sometimes the attorneys leave the settlement negotiations to the adjusters, which is unethical. Another type of UPL to watch for is contracting with an attorney. A very good case to read in this instance is Johnson v. McLeaish, out of the 5th Circuit Court of Appeals in Dallas:

Johnson was a non-lawyer, but called himself a "public adjuster." Johnson claims he had a contract with McLeaish who is an attorney, and McLeaish had promised to pay Johnson a portion of settlement proceeds for a case that Johnson had referred. Johnson was now suing for Breach of Contract and DTPA. However, McLeaish was awarded summary judgment. In this case, the court cites Unauthorized Practice Law Committee v. Jansen, 816 S.W.2d 813 that states, "A public adjuster is not authorized to engage in the practice of law which embraces, in general, all advice to clients and all action taken for them in matters connected with the law." McLeaish denied that a fiduciary relationship existed with Johnson and stated that attorney contracts were illegal as an affirmative defense.

The point here is that it is against public policy to have an illegal contract, and a no win situation for the non-lawyer. Review State Bar Rules, Section 38.123 Unauthorized Practice of Law.

Along the same lines, Section 38.12 of the Penal Code, Barratry, states:

(a) A person commits an offense if, with intent to obtain an economic benefit the person: . . . (2) solicits employment, either in person or by telephone, for himself or for another." V.T.C.A., Penal Code ¤38.12 (Vernon’s 1994).

The Barratry law in the Penal Code is extensive and cross-references with other Codes including the Government Code which governs attorneys. Any paralegal performing investigative work, working in a very busy law firm and performing the work of an associate attorney may want to take a look at it.

Other instances of UPL that have been reported on non-lawyers who have published self-help manuals, and who assist lay persons in choosing, preparing and filing forms for various reasons. In Unauthorized Practice Committee, State Bar of Texas v. Cortez, 692 S.W.2d 47 (Tex. 1985), the Committee found that recording responses to questions on forms did not require legal skill or knowledge, but assisting someone in determining whether the form was required or not did require legal skill and knowledge, and therefore constituted the unauthorized practice of law.

The examples that are given in this article are just a few. The article does include some up-to-date case law and references that can be used to help guide you around the land mines and keep you from losing your footing. There are so many ways to get yourself in a bind, and the best way to assist yourself is to educate yourself and your supervising attorney. If this means hanging a copy of the Legal Assistants Division Code of Ethics next to your desk, then do so. Practicing ethics is as important as practicing your writing skills. There are plenty of articles and books written regarding ethics which also contain fact situations for you to practice your ethics knowledge. And avoiding UPL is the practice of all ethics combined.

Cynthia Minchillo is a Senior Litigation Paralegal with the firm of Kyle &Mathis, L.L.P. in Dallas. She became a paralegal after graduation from VTI for Paralegal Studies in 1988 and holds an Associate of Arts Degree from Collin County Community College. Cynthia is a Board Certified Legal Assistant in Personal Injury Trial Law. She currently serves on the Dallas Area Paralegal Association Board of Directors as the NFPAPrimary Representative and as the Legal Assistants Division Public Relations Chair.