Issues Involving the Unauthorized Practice of Law
Colorado Bar Association Paralegal Committee
September 17, 2008
James C. Coyle, Deputy Regulation Counsel
Colorado Supreme Court Office of Attorney Regulation Counsel
1560 Broadway, Suite 1800
Denver, Colorado 80202
I. WHAT IS THE PRACTICE OF LAW IN COLORADO?
Colorado law prohibits the unauthorized practice of law, i.e., the practice of law by a
person who is not a licensed attorney in good standing. People v. Shell, 148 Colo. 162 (Colo.
2006). The Colorado Supreme Court has defined the practice of law as acting “in a
representative capacity in protecting, enforcing or defending the legal rights and duties of
another and in counseling, advising and assisting [another] in connection with these rights and
duties….” Id.; Denver Bar Association v. Public Utilities Commission, 154 Colo. 273, 391 P.2d
467 (1964). The Court’s words make clear that providing legal advice to another person
constitutes the practice of law. The selection and drafting of legal documents for another’s use
involves the giving of legal advice; thus, such conduct is also considered the practice of law. Id.
Under the Court’s explanation of the term “practice of law,” a non-lawyer generally
cannot:
1) Provide legal advice to another person;
2) Select legal documents on behalf of another person (unless under the direction
and supervision of a licensed attorney);
3) Draft legal documents on behalf of another person (unless under the direction and
supervision of a licensed attorney);
4) Interpret the law as it may apply to another person’s situation;
5) Represent another individual in any legal transaction or matter; or
6) Prepare a matter for trial (unless under the direction and supervision of an
attorney).
II. WHEN IS THE PRACTICE OF LAW AUTHORIZED?
The primary purpose for regulating the practice of law is to protect the public from harm
that may result from the activities of dishonest, unethical and incompetent providers of legal
services; 1 and to ensure that certain ethical duties are adhered to (these duties include loyalty,
competence, diligence and candor).
As a general rule, only lawyers licensed to practice law in the State of Colorado may
practice law in this state. Qualifications for a Colorado law license include graduation from an
ABA accredited law school, passage of an extensive bar examination, and determinations of
character and fitness by the Colorado State Board of Law Examiners. 2
Colorado is not territorial in its standards however. When it can be sufficiently
established that Colorado consumers are protected, other individuals may be authorized under
some circumstances to practice law.
1)
Out of State Lawyers. Colorado leads the nation in allowing out-of-state
lawyers the ability to practice law in Colorado under certain circumstances. If
the out-of-state attorney is licensed and on active status in another jurisdiction,
is in good standing on all licenses, and has not established domicile or a place
for the regular practice of law in Colorado, that out-of-state lawyer may
practice law in Colorado on matters that do not require a state court
appearance. By practicing law in Colorado, however, the out-of-state lawyer
becomes subject to the Colorado Rules of Professional Conduct and rules of
procedure regarding attorney discipline and disability proceedings and those
remedies involving injunctive proceedings contained in C.R.C.P. 234(a). 3
2)
Other Licensed Professionals. Other professionals who are licensed by the
State of Colorado may be given leeway to “practice law” in limited situations
due to their specialized training and licensing requirements. For example, real
estate brokers are licensed under C.R.S. 12-61-101, et seq. Brokers must pass
an examination to demonstrate the competency of the applicant, and satisfy
Colorado Real Estate Commission fitness and character requirements. Brokers
must also comply with rules established by the Real Estate Commission or be
subject to discipline. The Colorado Supreme Court has authorized licensed
brokers to select and use standard form legal documents approved by the Real
Estate Commission on behalf of their clients in Conway-Bogue Realty
Investment Co. v. Denver Bar Assoc., 135 Colo. 398, 312 P.2d 998 (1957).
1
Id. at p. 5; See also People v. Grimes, 654 P.2d 822, 826 (Colo. 1988); ABA Standards for
imposing Lawyer Sanctions (1991), 1.1.
2
See C.R.C.P. 201, et seq.
3
See generally C.R.C.P. 220, 221, 221.1 and 222.
3)
Other Statutory Authorizations. While the Colorado Supreme Court maintains
exclusive jurisdiction to regulate the practice of law in Colorado, the Court
often defers to the Colorado legislature, and the U.S. Congress, in their
determination of appropriate exceptions to the practice of law. For example,
officers of closely held entities, empowered by a resolution from that entity,
may be allowed under Colorado state statute to represent the entity’s interests
in certain matters. Licensed collection agencies are also allowed under
Colorado state statute to engage in some conduct that may otherwise be
considered to be the practice of law. Federal statutes authorize accreditation of
non-lawyers in some immigration and other federal agency matters.
4)
Trial Court Authorization. Trial courts often rely upon individuals from other
disciplines to assist with matters including probation requirements, the
protection of a minor’s interests, or mediation requirements. This assistance is
mandated by statute or Supreme Court rule or directive. Even if some of this
assistance could be technically considered the practice of law but is otherwise
necessary to complete the court-assigned task, such assistance is authorized the
trial court approves such conduct.
5)
Other Administrative Regulation Authorizations. If a federal, state or local
agency regulation or practice authorizes participation by a non-lawyer, and
adequate protections are in place, then such participation that would otherwise
be considered the practice of law will be allowed. For example, accredited
representatives working for recognized agencies, and certain law students, law
graduates and “reputable individuals” (i.e., someone the affected person knows,
like a friend, family member, or clergyman, and not someone who routinely
assists other persons in this area of law) may be authorized to represent persons
in immigration law matters. 4 In addition, business and labor unions may
represent employers or employees in employment matters before the state civil
rights division or state department of labor; and engineers or development
planners may participate and represent others in county commissioner and land
use planning matters.
Similarly, the parties may agree to an alternative dispute resolution process that
involves the use of non-lawyers. Assuming adequate protections are in place,
and such procedure does not run afoul of public policy and due process
protections, then such participation that would otherwise be considered the
practice of law will likely be allowed.
The common threads through each of the above authorizations include minimum
qualification requirements, competence, accountability, and access of participants to justice. 5
4
5
See 8 CFR 292.1
ABA Task Force Report, pp. 6-9.
III.
ARE PARALEGALS
COLORADO?
AUTHORIZED
TO
PRACTICE
LAW
IN
Paralegals and legal assistants cannot practice law in Colorado. Paralegals only act under
the direction and supervision of a licensed attorney, and that attorney is ultimately responsible to
the client. While law firms most often employ paralegals, paralegals can also be “freelance” and
thus work on a contract basis for Colorado attorneys.
Paralegals cannot provide direct legal services to anyone other than a licensed attorney.
Paralegals cannot advertise to the general public as being able to provide legal services for
anyone but a licensed attorney.
The Lawyer’s Duty to Supervise Non-Lawyer Staff
Colo. RPC 5.3 sets forth the lawyer’s duties with respect to supervising non-lawyer staff.
Colo. RPC 5.3 will be amended with all of the other Colorado Rules of Professional Conduct,
effective January 1, 2008. The new rule, which is substantially similar to the previous Rule 5.3,
provides:
With respect to non-lawyers employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable
efforts to ensure that the firm has in effect measures giving reasonable assurance
that the person’s conduct is compatible with the professional obligations of the
lawyer;
(b) a lawyer having direct supervisory authority over the non-lawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the
law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
The Comment to new Rule 5.3 provides:
COMMENT
[1]
Lawyers generally employ assistants in their practice, including secretaries,
investigators, law student interns, and paraprofessionals. Such assistants, whether employees or
independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A
lawyer must give such assistants appropriate instruction and supervision concerning the ethical
aspects of their employment, particularly regarding the obligation not to disclose information
relating to misrepresentation of the client, and should be responsible for their work product. The
measures employed in supervising nonlawyers should take account of the fact that they do not
have legal training and are not subject to professional discipline.
[2]
Paragraph (a) requires lawyers with managerial authority within a law firm to
make reasonable efforts to establish internal policies and procedures designed to provide
reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of
Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have
supervisory authority, over the work of nonlawyers. Paragraph (c) specifies the circumstances in
which a lawyer is responsible for conduct of nonlawyers that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer.
Thus, lawyers may delegate certain tasks to paralegals, legal assistants, staff members
and/or independent contractors; however, the lawyer is ultimately responsible in complying with
the Colorado Rules of Professional Conduct.
As noted in the Comment to Colo. RPC 5.3, the lawyer is responsible for providing
appropriate instruction and supervision regarding the ethical aspects of employment to his or her
employees or independent contractors. The lawyer is also responsible for the work product of
the employees. Accordingly, the lawyer must authorize the actions taken by his or her
employees, since such actions are undertaken as if the lawyer were doing the work personally.
Lawyers also have ethical obligations not to assist a non-lawyer in the unauthorized
practice of law. New Rule Colo. RPC 5.5, effective January 1, 2008, provides in pertinent part:
A lawyer shall not:
(a)
practice law in this jurisdiction without a license to practice law
issued by the Colorado Supreme Court unless specifically authorized by C.R.C.P.
220, C.R.C.P. 221, C.R.C.P. 221.1, C.R.C.P. 222 or federal or federal or tribal
law;
(b)
practice law in a jurisdiction where doing so violates the
regulations of the legal profession in that jurisdiction;
(c)
assist a person who is not authorized to practice law in this
jurisdiction pursuant to subpart (a) of this rule in the performance of any activity
that constitutes the unauthorized practice of law.
****
This rule does not prohibit a lawyer from employing non-lawyer legal support staff or
delegating functions to them. The lawyer must authorize and properly supervise the work, and
remain ultimately responsible for the work product. See Denver Bar Ass’n. v. Public Utilities
Commission, 154 Colo. 273, 391 P.2d 467 (1964).
The Colorado Rules of Professional Conduct do not provide a definition for “adequate
instruction.” Nevertheless, it is ultimately the lawyer’s responsibility to ensure that a non-lawyer
support staff member acts in a manner consistent with the lawyer’s professional obligations to
clients. Examples of adequate instruction are as follows:
a. Since lawyers cannot aid in the unauthorized practice of law, lawyers need to
specifically instruct non-lawyer staff members that they cannot provide legal advice to
clients.
b. Pursuant to Colo. RPC 1.6, the lawyer has an obligation to maintain client
confidentiality. The lawyer is required to provide adequate instruction to the non-lawyer
staff members to ensure that the lawyer’s own professional obligations in this regard are
met.
c. Pursuant to Colo. RPC 1.4, the lawyer must communicate with the client. The
lawyer must explain this obligation to the client and identify what the non-lawyer support
staff members’ limits are.
The Colorado Rules of Professional Conduct also do not prescribe the amount or type of
supervision by a lawyer. The lawyer must direct and review all legal work that is performed by a
non-lawyer support staff member.
The attorney, and not the support staff member, must provide the legal advice to the
client. The lawyer should personally meet with the client at the outset of the representation.
Often times, legal advice is sought while information is being obtained from the client; thus, a
support staff member’s handling of the initial meeting with a client may easily result in the
unauthorized practice of law.
Any discussions and decisions as to strategies in handling the legal matter should be
made between the attorney and client, and not between the support staff member and client.
Again, in order to provide guidance to the client on appropriate strategy, the attorney must
provide legal advice to the client.
The attorney, and not the support staff member, must negotiate all settlements on behalf
of the client. Although certain information and offers can be conveyed, the lawyer, and not the
support staff member, should be conferring directly with the client and opposing counsel.
Support staff members must properly identify themselves to clients, opposing counsel
and third persons. Often times individuals assume the person with whom they are speaking from
the law office is a lawyer, when in fact that person may be a paralegal or other support staff.
Resources
See Colorado Bar Association Ethics Committee Formal Opinion 61, legal assistance,
and 79, use of legal assistance in client representation, which are attached to this outline.
Although both were decided under the old Colorado Code of Professional Responsibility, these
opinions continue to provide guidance in this area.
See also the Colorado Bar Association website, www.cobar.org, for the Paralegal
Committee homepage, which includes guidelines for the utilization of paralegal services.
Attorney Discipline Case Law
People v. Fry, 875 P.2d 222 (Colo. 1994) involved an attorney who was publicly
censured because the attorney aided a paralegal in the unauthorized practice of law and neglected
a legal matter entrusted to him. In this case, the paralegal had met with the clients at the
lawyer’s office, provided legal advice to the clients and prepared legal documents. The lawyer
had never met with the clients.
In People v. Berkeley, 858 P.2d 699 (Colo. 1993), the respondent attorney was publicly
censured for failing to adequately supervise a paralegal. The paralegal had met with clients
several times, and provided legal advice on bankruptcy matters. The attorney had never met
with the clients.
In People v. Stewart, 892 P.2d 875 (Colo. 1995), the respondent attorney was suspended
for three years for failing to adequately supervise a paralegal. The same paralegal who had
worked for Mr. Berkeley was then employed by Ms. Stewart. Again, the paralegal, not the
attorney, met alone with and advised the client about the client’s criminal matter. In addition,
the paralegal met with many other clients and regularly provided legal advice to them.
In People v. Reynolds, 933 P.2d 1295 (Colo. 1997) the attorney was suspended for three
years and 30 days, with the two suspensions to run concurrently, for in part assisting a nonlawyer in the unauthorized practice of law. This paralegal was the same paralegal that had been
hired by attorneys Berkeley and Stewart.
In People v. Laden, 893 P.2d 771 (Colo. 1995), the attorney was publicly censured for
aiding non-lawyers in the unauthorized practice of law by assisting them with the sale of living
trust document kits to Colorado residents.
In People v. Galimanis, 805 P.2d 1116 (Colo. 1991), the attorney was also publicly
censured for her role in reviewing living trust documents prepared by a non-lawyer trust
company which then sold the trust packages to the public.
IV.
CERTIFICATION PROGRAMS FOR PARALEGALS
Colorado is similar to the majority of states and does not have a paralegal certification
program. At the present time, this author is unaware of any efforts to establish a certification
program in Colorado. Remember that any new program must come with a source for funding,
either through the legislature or mandatory membership dues.
Some other states have created certification programs for paralegals. These states include
Ohio, North Carolina and California. These certification programs are most often funded by
membership dues. These certification programs require education, testing and continuing
training in order to hold oneself out as a certified paralegal. And these states do not allow
certified paralegals to provide direct legal services to consumers.
The Florida Supreme Court is now considering a paralegal certification rule. Similar to
Ohio, the Florida program will set up a two-tier system for paralegals. The first tier, incorporated
in the system by definition only, includes a person with education, training, or work experience,
and who works under the direction and supervision of an attorney. No additional requirements
are necessary to use the title “paralegal” and to perform paralegal work. The second tier is the
Florida Registered Paralegal. In order to reach this tier, the individual must have certain
education and training or certification.
Because the proposed Florida program establishes a two-tier system, those individuals
currently working as paralegals may continue to do so as long as they meet the general
definition. Individuals who wish to obtain the higher level may do so, although obtaining the
status is not mandatory to continuing to work as a paralegal. Registered Florida paralegals will
not be able to provide direct legal services to others under the proposal, and must continue to act
under the direction or supervision of a licensed Florida lawyer.
V. NON-LAWYER LEGAL DOCUMENT PREPARERS
Colorado is similar to most other states and does not allow the selection or preparation of a
legal document by anyone other than a licensed attorney. This majority view is that inherent in
the selection and preparation of a legal document is the provision of legal advice, and only a
licensed attorney should provide legal advice.
Two states do allow non-lawyers to prepare certain legal documents for members of the
public who represent themselves in a legal matter. These states are California 6 and Arizona.
Legal document preparers in these states have restrictions on their ability to prepare legal
documents and are not permitted to otherwise engage in any practice of law.
For example, the Arizona document preparer regulatory system:
•Limits preparation of documents for which the preparer is competent,
•Requires an examination for admission,
6
In California, a Legal Document Assistant has separate training from a Certified Paralegal.
•Requires educational and experience criteria,
•Requires a written disclaimer to the consumer stating that the preparer is not a lawyer,
•Mandates continuing education courses, and
•Establishes a code of ethics.
Mandatory member dues fund the Arizona Certified Document Preparer regulation
system.Code of Judicial Administration §7-208.
VI. HOW IS THE UNAUTHORIZED PRACTICE OF LAW REGULATED
IN COLORADO?
A. WRITTEN AGREEMENTS TO NO LONGER ENGAGE IN UPL
When a non-lawyer engages in the unauthorized practice of law in Colorado, the Office
of Regulation Counsel, acting on behalf of the Unauthorized Practice of Law (“UPL”)
Committee, first attempts to enter into a written agreement with the respondent. In the written
agreement, the respondent agrees to refrain from further unauthorized practice of law, refund any
fees collected, make restitution, and pay costs. In exchange, the Committee will agree not to
take any further injunctive or other legal action on the matter. Colorado Rule of Civil Procedure
(“C.R.C.P.”) 232.5(d)(3) encourages the use of such informal written agreements for first-time
offenders. 90 individuals have entered into agreements to no longer engage in the practice of
law in Colorado since the Office of Regulation Counsel began representing the interests of the
UPL Committee in 1998.
B. INJUNCTIVE PROCEEDINGS
If an individual refuses to enter into an agreement, or the individual violates a prior
agreement, then the UPL Committee may authorize injunctive proceedings against that
individual. The Office of Attorney Regulation Counsel represents the People of the State of
Colorado (“the people”) in such proceedings. The injunctive proceedings are filed with the
Colorado Supreme Court, which then assigns the matter to the Honorable William R. Lucero,
Presiding Disciplinary Judge (“PDJ”) for the Colorado Supreme Court, to act as hearing master.
C.R.C.P. 234-237 (the unauthorized practice of law rules) governs injunctive proceedings
to prevent the unauthorized practice of law. Other Colorado rules of civil procedure apply to
such proceedings if not inconsistent with C.R.C.P. 234-237. See C.R.C.P. 235(d). As the
unauthorized practice of law rules do not provide for a different burden of proof in such an
injunctive proceeding, the burden is “by a preponderance of the evidence.” See C.R.S. § 13-25127(1).
Pursuant to C.R.C.P. 234-237, the people need only establish facts that demonstrate that
an individual has engaged in the unauthorized practice of law in order to seek an order of
injunction against that individual. The people need not prove irreparable injury or the threat
thereof in this type of injunctive proceeding. Conway – Bogue v. Denver Bar Ass’n, 135 Colo.
398, 410, 312 P.2d 998 (1957). The people may also seek other relief that includes a client
refund, restitution to the client and any affected third parties for damages, and assessment of
costs of the proceeding (see C.R.C.P. 234(b) and 237(a)). A fine is also required under certain
circumstances.
C. CONTEMPT PROCEEDINGS
Individuals who violate a Colorado Supreme Court order of injunction are subject to
contempt proceedings. C.R.C.P. 238-39, and 107(c)-(d) (when not inconsistent with 238-39),
governs contempt proceedings concerning unauthorized practice of law. The people must prove
that a charged individual is guilty of contempt beyond a reasonable doubt. See C.R.C.P.
107(d)(1) (setting out procedures for trial and punishment in indirect contempt proceeding
where punitive sanctions may be imposed). Petitions for Contempt Citation are also filed with
the Colorado Supreme Court, which then assigns the matter to the PDJ in similar fashion to the
procedure for injunctive proceedings.
Four things must be shown to prove punitive contempt: 1) the existence of a lawful order
of the court, 2) the contemnor’s knowledge of the order, 3) the contemnor’s ability to comply
with the order, and 4) the contemnor’s willful refusal to comply with the order. In re Boyer,
988 P.2d 625 (Colo. 1999); and In re Marriage of Nussbeck, 974 P.2d 493, 497 (Colo. 1999).
A punitive contempt order is intended to vindicate the dignity of the court. “Plainly and
simply, a punitive contempt proceeding is a matter between the court and the offending party.”
See Nussbeck, supra at 499. Imprisonment or fines may be imposed. C.R.C.P. 107.
Imprisonment is appropriate in circumstances where the respondent has repeatedly
violated a court order and had notice of the inappropriateness of such conduct. See, e.g.,
Unauthorized Practice of Law Comm. v. Grimes, 654 P.2d 822, 826 (Colo. 1982) (respondent
was sentenced to six months confinement in the county jail with all but ninety days suspended
because of the large number of cases in which he had engaged in the unauthorized practice of
law, and for his complete disregard of the Supreme Court’s injunctive order prohibiting him
from practicing law). Cf. People v. Koransky, 844 P.2d 668, 669 (Colo. 1993) (holding that
where the respondent demonstrated a cooperative attitude during the contempt proceeding,
imprisonment was not warranted). The people do not normally seek imprisonment for the first
instance of contempt. Instead the people request that the individual be fined.
D. OTHER SANCTIONS (NOT IMPOSED BY THE COLORADO SUPREME
COURT)
1) Other professional license sanctions, such as those contained in the notaries
public statutes (C.R.S. 12-55-110.3), or any other certification or licensing
regulation scheme.
2) All non-lawyers - Deceptive Trade Practices Act – C.R.S. 6-1-105
3) All non-lawyers - Criminal statutes involving fraud, theft, official misconduct,
etc. contained in C.R.S. Title 18 or the U.S. Code.