The Unauthorized Practice of Law (UPL)

Believe it or not, some people are gutsy enough to hold themselves out as attorneys, represent clients and even appear in court.  Take, for example, the case of a Texas man, Jeff Partlow, who was recently arrested for being drunk in a Texas courtroom.  When the judge decided to report Partlow’s behavior to the Texas bar, it was revealed that Partlow was not in fact an attorney. Further investigation revealed that he had appeared as an attorney in thousands of cases across the State of Texas since 2001.  Though this level of unauthorized practice of law (UPL) is rare, it is an issue that state bar associations take very seriously.

 
Unauthorized practice of law comes in a variety of flavors.  It may be as egregious as the Texas case, including actual court appearances, or it may be as simple as telling someone you are a lawyer when you are not.  Even assisting a non-lawyer in performing UPL can result in a UPL charge against the lawyer.  Lawyers that practice while their license is suspended or after being disbarred are also guilty of UPL.  The more complex situations involve paralegals processing legal documents without the guidance of a supervising lawyer and lawyers providing advice across state lines.  For example, a lawyer licensed in one state who provides legal advice or representation in a state where he is not licensed could be prosecuted for UPL in the state where he is not licensed, and even his home state may hold him accountable if the bar rules allow an ethics violation in one state to be prosecuted at home.

It is sometimes a fine line.  The key to avoiding a UPL charge is to limit information provided to others to legal information only, not legal advice.  Information, such as the factual status of the law, can be provided for educational purposes or discussion.  Such information is available to the general public, if only they were equipped to do the research.  However, the act of providing legal information becomes legal advising when the professional applies such information to a factual scenario relevant to the legal stakes of the person receiving the information.  For example, it is not UPL for a law student to explain to his friends what he learned about search and seizure in criminal law class, but if he goes on to advise his recently arrested friend how to use that information to exclude evidence in his case, the law student has committed UPL.  Lawyers should also ensure that their staff members only provide information and process forms with supervision and that they not make suggestions for action clients should take.

The consequences of UPL vary among the states.  It can usually be prosecuted as a crime.  In Florida for example, the punishment can be up to $500 or 5 months in jail.  However, the Court has discretion to alter the sentence.  An injunction that prohibits continued UPL is also ordered.  Though this level of punishment sounds minimal, several charges for different instances of UPL could amass to a large punishment and fine.

NOTE: The unauthorized practice of law does not prevent a non-attorney from representing himself/herself in a legal matter.

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