Unauthorized Practice of Law, or UPL, in its most basic form occurs when a non-attorney practices law or an attorney practices law where he does not hold licensure. Every state has UPL statutes on the books and running afoul of them is a criminal offense.
UPL charges can be levied in a dry, procedural manner, such as when a lawyer practices in a jurisdiction where he is not licensed. But in recent decades, states have used these laws most enthusiastically as a weapon to protect the attorney monopoly on legal services.
This is bad news for the general public. The American Bar Association’s own 1994 Comprehensive Legal Needs Study reveals that a real problem exists for lower income people who cannot afford attorney assistance when legal problems beset them.
Preparation of Legal Documents a Confusing Arm of UPL
A key component of many UPL laws is the dictate that preparing or providing legal documents for a fee is the practice of law. This puts a number of non-attorney professionals who legitimately assist the public by preparing legal papers on the hot seat.
Are real estate agents who draft a purchase agreement behaving criminally? What about Bankruptcy Petition Preparers who, under federal law, are allowed to prepare any bankruptcy form for a member of the public?
Should pre-printed legal forms like Rental Agreements and Powers of Attorneys sold in Office Depots around the country be outlawed? And what about websites where a consumer plugs in information and then generates the documents needed to file for a divorce or a name change or a corporation?
UPL laws are further complicated by the fact that many states post the legal documents needed to file for routine matters and instructions to fill out those documents on their websites.
In Georgia, the Superior Court of Dekalb County posts legal organs to file for adult and minor name changes, legitimation and Child Support Modification. Pennsylvania's Cameron County Court of Common Pleas offers the necessary documents to file for and finalize a divorce by mail and in Delaware, all the papers needed to create a brand new legal entity in the form of an Inc or an LLC are free for the taking on the Secretary’s of State’s website.
On one hand, state bar associations deem these free legal forms and advice a convenience for consumers. On the other hand, online companies who offer similar services are being sued for UPL.
Lawyers and Judges Can’t Clearly Define the Practice of Law
A major problem with UPL statutes is underscored by the fact that the legal profession has had an infamously difficult time defining what the practice of law is. In short, it varies from state to state and changes with the times. Too often the definitions center on what non-lawyers can't do instead of what lawyers can.
In 1999, Texas Courts banned the sale of Quicken Family Lawyer within the state, claiming that it violated UPL statutes. Just months later, to the chorus of rousing public support, the United States Court of Appeals vacated the lower Court’s ruling.
The Texas legislature signed an amended bill into law stating that the types of products Quicken created and sold were in fact not the practice of law as long as they came with a warning that they weren't a proper substitute for legal advice from an attorney.
In December 2009, a major case was filed in Missouri. Todd Janson, et al v. LegalZoom aims to harpoon a big fish in the internet waters of legal document preparation and do-it-yourself actions. The Plaintiffs are seeking class status, and LegalZoom has requested that the case be removed to federal court.
How the suit will pan out remains to be seen, but one fact remains indisputable. For every LegalZoom, there are 50 companies or individuals offering the same types of services to a public that wants and needs them.
The Times They are A-Changin’
Investigating the history of legal document preparation by non-attorneys in the states of California and Arizona is central to understanding the changing face of legal services in America. In the not too distant past in these states, public paralegals who accepted fees to type simple legal documents for people representing themselves in court were routinely charged with UPL, run out of business and/or jailed.
Today the profession is accepted, regulated and praised in both states. Legal document preparers in Arizona must go through an extensive background check, pass a lengthy exam and attend CLE classes yearly.
Legal document assistants in California must register with the courts where they assist people and carry a $25,000 errors and omissions bond. The profession is represented locally and nationally. Yet in most states, legal document preparation by a non-attorney is still considered a violation of UPL laws.
By regulating and establishing standards for the industry and safeguards for the public, California and Arizona have shown themselves as forerunners of a more inclusive model of legal services that will surely be adopted by more and more states in the coming years.
Yet that probably won’t happen before more lawsuits are filed. Only one thing seems certain – the landscape of cost-effective legal services and UPL is changing, and it is difficult to determine exactly what it will look like when its metamorphosis is complete.
Janice Fahy - Janice Fahy is a freelance writer who is comfortable researching and writing on just about any topic under the sun.
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