Unauthorized Practice Of Law in United States

Practical Information

Note: Some of this information was last updated in 1982

Black’s Law Dictionary defined, in an early edition, the Practice of Law as follows: “Not limited to appearing in court, or advising and assisting in the conduct of litigation, but embracing the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients.”

However, the American Bar Association, through the Standing Committee of Professional Ethics, Opinion No. 316, dated January 18,1967, further clarified the matter:

“A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings as a part of the judicial process, so long as it is he who takes the work and vouches for it to the client. In other words, we do not limit the kind of assistants the lawyer can acquire in any way to persons who are admitted to the Bar, so long as the nonlawyers do not do things that lawyers may not do or do the things that lawyers only may do.”

Canon 3 of a proposed Code of Professional Responsibility (for the 1983 approval) stated with regard to the unauthorized practice of law: “A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his

client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.”

Actions charging unauthorized practice of law are usually brought by local bar associations.

Guidelines for the secretary to avoid practicing law. 1. The secretary should never give “advice” to a client either over the telephone or in person. She should firmly inform the client that she is not an attorney and thus may not give advice. What constitutes advice? Advice is anything upon which a client might rely, act upon, and be injured as the result.

2. The secretary may be trained by the lawyer to draft documents, such as deeds, without his or her help, to prepare accountings for estates and guardianships, to prepare documents for transferring real estate in an estate, selling personal property in an estate, divorce pleadings from predicated forms, and so on, as long as the documents are supervised and reviewed by the attorney.

3. The secretary should never discuss clients’ affairs with persons, such as representatives of Internal Revenue Service or authoritative tax persons of various branches of the government. They may have the right to the information, but it is up to the attorney to decide what to divulge.

4. The secretary should never release documents or copies of information in files to anyone without the direction of the attorney, even though the original documents may be the property of the client. If the client insists on having the documents, the secretary should tell the client that she must have the attorney’s permission to release them, as the attorney may be holding them for payment of a fee or other reason.

5. The secretary should never discuss the client’s affairs with the opposing counsel. She may reveal something that the attorney does not want revealed at that time.

6. The secretary should never try to advise friends and relatives on legal matters, even though she may “know what she is talking about.”

(Revised by Ann De Vries)

What is Unauthorized Practice Of Law?

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