Unauthorized Practice of Law
Each state has a system of licensing attorneys. These licensing procedures help protect the public from unqualified or incompetent attorneys. It is unlawful for a nonlawyer to practice law; in some states this activity can lead to criminal penalties. Few of these statutes define “the practice of law.”
Knowing what conduct constitutes unauthorized practice of law is very important. Because paralegals perform so many legal tasks that were previously performed by lawyers, it is necessary to identify when this conduct might cross the line into unauthorized practice of law.
The ABA defines the practice of law as the exercise of professional judgment on behalf of a client. The essential component of the ABA definition is the exercise of professional judgment on the specific legal problem of a client. Using the standard of the exercise of professional judgment, we can narrow the kinds of activities that constitute the practice of law. There are least four activities that always involve the exercise of professional legal judgment.
Establishing the Attorney-Client Relationship
A paralegal must never suggest to a client that an attorney will or will not represent them. No matter how clear the matter seems to be, no matter how sure the paralegal is of the decision of the attorney, the paralegal is simply not authorized to make this decision. The creation of an attorney-client relationship has many consequences. It imposes duties on both the attorney and the client — duties that are not specifically imposed on the paralegal.
This is not to say that the paralegal is prohibited from communicating the lawyer's decision. It is perfectly proper for a paralegal to write or call a client to tell them that the lawyer has accepted or declined the representation. In fact, facilitating communication between the lawyer and the client is one of the major duties of a paralegal.
A paralegal must be careful to not make statements that contradict any disclaimer of representation. Vague statements like, “I'm sure we will be able to help,” or even, “I look forward to working with you,” confuse the prospective client and may create an expectation of representation. Keep your comments confined to gathering information and reinforcing that any decision on representation is the lawyer's responsibility.
Setting Legal Fees
A paralegal must never agree to charge a client a specific fee.
Obviously, this is a matter of great importance to the client. Many clients will press the paralegal for information — “How much is this going to cost?” “What do you usually charge?” In each case, the paralegal should refer the client to the lawyer for this information.
Again, it does not matter if the paralegal is experienced or competent. The specific fees charged for legal matters can vary greatly depending on the complexity of the matter, the length of time it takes to address the client's problem, and whether there are unforeseen difficulties. The attorney has an ethical obligation to discuss all fee matters with the client prior to undertaking representation. The paralegal cannot perform this essential duty for the lawyer.
Representing a Party in Court
The general rule is that a paralegal may not represent a client in court. The privilege of appearing on behalf of another person is limited to lawyers because they have specific training in the rules of procedure and evidence that apply in court proceedings. In addition, every court proceeding requires the lawyer to exercise professional judgment on behalf of a client — whether to assert an objection, what questions to ask a witness, or how to respond to a judge's question.
Nevertheless, the bright-line rule that a paralegal cannot represent clients in court is fading. Paralegals may appear on behalf of clients in some federal administrative proceedings. Other courts are opening their doors to paralegals as well — Maryland allows nonlawyers to appear on behalf of tenants threatened with eviction, lay advocates appear on behalf of women in domestic violence proceedings in North Dakota, and other states are experimenting with allowing paralegals to appear in court on behalf of clients in other limited matters.
A person who represents herself in court, even if not licensed to practice law, is not guilty of the unauthorized practice of law. Every state allows litigants to appear prose, or on their own behalf.
Offering Legal Opinions or Advice Of the four activities that constitute the practice of law, the prohibition against giving legal advice is the clearest. Clients come to lawyers because they need help with a legal problem. They expect that the advice they receive will come from someone with the training and expertise to provide that advice. Legal advice ordinarily deals with the consequences of a course of conduct and affects the client's legal position or rights.
It is the close working relationship between lawyers and paralegals that creates problems in this area. A client who is aware of the relationship between the paralegal and the lawyer may rely on statements by the paralegal just as if they came from the lawyer. The client does not differentiate between a paralegal who is offering her own opinion (improper) and a paralegal who is relaying advice from the attorney to the client (proper). To the client, it is all legal advice.
The paralegal must be vigilant to avoid giving legal advice to clients. The temptation to share your education and expertise becomes greater as your knowledge and competence grow. When a client calls wanting to know the options for dealing with a custodial dispute, it is difficult to simply gather information and tell the client you will discuss the problem with your supervising attorney. Anything more, however, runs the risk of giving legal advice and constitutes the unauthorized practice of law.
A paralegal should always clarify her role when dealing with clients or other persons to avoid confusion between the paralegal and the lawyer. This is a good time to reinforce the idea that the paralegal cannot offer legal advice.
The paralegal must also take special care to avoid giving legal advice to persons other than clients. Being in the legal profession is a bit like being a medical doctor — people are constantly asking for an off-the-cuff opinion on their legal problems. Paralegals must resist the temptation to try to assist these persons, even if the request comes from a family member and the paralegal is absolutely certain of the answer. Even advice that seems common sense to you may be given greater weight because it comes from a person with legal training.