Week 8
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California Business and Professions Code
sections 6450-6452
6450: Notwithstanding subdivision (a), a
paralegal shall not do the following:
(1) Provide legal advice.
(2) Represent a client in court.
(3) Select, explain, draft, or recommend the use
of any legal document to or for any person other
than the attorney who directs and supervises the
paralegal.
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It is unlawful for a paralegal to perform any services
for a consumer except as performed under the
direction and supervision of the attorney, law firm,
corporation, government agency, or other entity that
employs or contracts with the paralegal. Nothing in
this chapter shall prohibit a paralegal who is
employed by an attorney, law firm, governmental
agency, or other entity from providing services to a
consumer served by one of these entities if those
services are specifically allowed by statute, case law,
court rule, or federal or state administrative rule or
regulation. “Consumer” means a natural person, firm,
association, organization, partnership, business trust,
corporation, or public entity.
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(a) It is unlawful for a person to identify himself or herself
as a paralegal on any advertisement, letterhead, business
card or sign, or elsewhere unless he or she has met the
qualifications of subdivision (c) of Section 6450 and
performs all services under the direction and supervision
of an attorney who is an active member of the State Bar of
California or an attorney practicing law in the federal
courts of this state who is responsible for all of the
services performed by the paralegal. The business card of
a paralegal shall include the name of the law firm where he
or she is employed or a statement that he or she is
employed by or contracting with a licensed attorney.
(b) An attorney who uses the services of a paralegal is
liable for any harm caused as the result of the paralegal's
negligence, misconduct, or violation of this chapter.
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(a) Any person advertising or holding himself or herself
out as practicing or entitled to practice law or otherwise
practicing law who is not an active member of the State
Bar, or otherwise authorized pursuant to statute or court
rule to practice law in this state at the time of doing so, is
guilty of a misdemeanor punishable by up to one year in a
county jail or by a fine of up to one thousand dollars
($1,000), or by both that fine and imprisonment. Upon a
second or subsequent conviction, the person shall be
confined in a county jail for not less than 90 days, except
in an unusual case where the interests of justice would be
served by imposition of a lesser sentence or a fine. If the
court imposes only a fine or a sentence of less than 90
days for a second or subsequent conviction under this
subdivision, the court shall state the reasons for its
sentencing choice on the record.
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The application of a rule of law to a particular
person’s facts and giving a response
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The Unauthorized Practice of Law
◦ Practice (doing something)
◦ Law (in the courts, administrative law system, or
otherwise in the legal system)
◦ Unauthorized (by someone who is not licensed to
practice law or otherwise authorized to act)
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Traditionally done by lawyers
“commonly understood” to require the legal
skill of a lawyer
Requiring legal skill and knowledge beyond
that of a layperson
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Improper to practice law without a license
◦ This one gets you in trouble
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Improper to assist someone who doesn’t have
a license in the practice of law
◦ This one gets your boss in trouble
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UPL issues need to be viewed from
◦ 1. The point of view of the person asking for legal
advice
◦ 2. The point of view of the person giving the legal
advice.
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Example: Your Aunt Bea asks you for some
advice on her will. She knows you are
attending paralegal school. If you answer,
you are committing UPL – because she asked
for your help relying on your legal
knowledge.
If she asks her bridge partner for the same
advice, that person does not commit UPL.
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UPL occurs when the person is seeking legal
advice from a person who he knows has legal
knowledge but who is not a lawyer.
UPL doesn’t occur when the person is seeking
an uneducated opinion.
1.
2.
3.
Representing others in court
Giving legal advice
Creating legal documents
1. Representing others in court
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Obviously, a non-lawyer cannot stand up in
front of a judge and argue a motion or
question a witness. This is true of both
criminal and civil courts.
◦ (watch for the exception for administrative courts
coming up)
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Obviously, non-lawyers cannot legally open a
law office, take clients, give them advice
about legal matters
Giving legal advice, remember, is: The
application of a rule of law to a particular
person’s facts and giving a response
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Obviously, paralegals are used to “create”
legal documents.
However, only a lawyer can sign those
documents.
By signing the document, the lawyer “adopts
it as his own.”
◦ So, now it is no longer a document “created” by a
non-lawyer. Go figure.
1.
2.
3.
4.
5.
Representing yourself
Law students
Some administrative agencies
The incidental-to rule
The conduit theory
1. Self-representation
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is a right guaranteed by the Constitution
It is not UPL because you are representing
yourself, not someone else
◦ But, be aware, self representation does not include
you representing your spouse or your company
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Admin Agencies get to write their own laws
They have their own court system
So, they get to say who can “practice” in their
courts
Some intentionally allow “lay practice”
because it is beneficial to them and to the
public
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Some businesses practice some little bit of
law as incidental to their primary business
◦ Example – banks will tell you that a certain type of
account is “tax free.” That is tax advice, but not UPL
◦ Example – insurance companies will tell you that
certain provisions will protect your heirs from
inheritance tax. Again, tax advice, but not UPL
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If a person is a conduit of legal advice, it is
not UPL
◦ Example: a lawyer tells a paralegal to call Client X
and tell him [legal advice]. The paralegal is simply
repeating the advice – as if it was written in a letter.
The paralegal is just the conduit -- the method of
conveying the legal advice.
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Paralegal services
◦ Typing services
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Kits and books
Representing corporations/companies
Simple communication with the court
Repetitive answers
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It is nearly impossible to help people
without crossing the UPL line
Some states allow a limited amount of
“help”
◦ Ex: California’s Legal Document Assistant
 Still contains a caveat: cannot practice law
◦ Ex: Arizona’s Document Assistant
 Still contains “Legal Document Preparers may provide
general legal information but may not give legal advice.”
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Straight up typing what the client tells you to
type is not UPL
But you cannot choose a form or explain a
question on the form without crossing the
UPL line
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A few states have prosecuted for UPL but as
kits and books give generic advice, they are
not UPL
Remember our definition of practice of law
“the application of the law to a person’s facts
and giving a response”
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Self representation only extends to people
Corporations have no right of selfrepresentation
◦ Some states allow Corporations to appear via an
officer when the corp is a defendant in small claims
court.
◦ That itty-bitty exception aside, corporations must
be represented by a lawyer
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Calling the court to deliver a message is
not UPL
However, the attorney who sends a
paralegal to make an appearance to ask for
a continuance (or any other administrative
matter) is probably sending that paralegal
to commit UPL
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The worst (most frustrating?) problem facing
paralegals in the workplace
The client asks a question
You know the answer (it is legal advice)
But you cannot respond
Remember our UPL definition
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An area where lawyers inadvertently help
non-lawyers commit UPL
It is improper for a lawyer to be in a business
relationship (partnership, LLC, corporation)
with a non-lawyer if that organization will be
practicing law
Non-lawyers cannot have an ownership
interest in a law firm
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Improper business relationships: Rule
5.4(b)*
Search term: “professional independence of
a lawyer” + [your state name]
*if your state uses the same numbering system as the
ABA
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Search term “unauthorized practice of law” +
[your state name]
Ex: “unauthorized practice of law” + texas =
http://www.txuplc.org/ where you will learn
all about that state’s law of UPL
78A-9-103. Practicing law without a license prohibited -- Exceptions.
(1) Unless otherwise provided by law, a person may not practice law or assume to
act or hold himself out to the public as a person qualified to practice law within this
state if he:
(a) is not admitted and licensed to practice law within this state;
(b) has been disbarred or suspended from the practiced of law; or
(c) is prohibited from doing so by court order entered pursuant to the courts'
inherent powers or published court rule.
(2) The prohibition against the practice of law in Subsection (1) shall be enforced
by any civil action or proceedings instituted by the Board of Commissioners of the
Utah State Bar.
(3) Nothing in this section shall prohibit a person from personally and fully
representing his own interests in a cause to which he is a party in his own right and not
as an assignee.
Utah
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Check your state law on whether non-lawyers
can assist members of the public in any way.
California (Legal document assistant)
calda.org
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Choosing a form is applying knowledge of the
law to a person’s facts
Explaining how a person should complete a
form is applying knowledge of the law to a
person’s facts
Showing a specific law or book to a person is
applying knowledge of the law to a person’s
facts
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By not supervising paralegals
By delegating tasks that should not be done
by paralegals
By entering into improper business
relationships with paralegals
By dividing fees with paralegals
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By giving you a business card that does not
designate your paralegal-ness properly
By failing to introduce you as a paralegal
By trying to look like a bigger firm and calling
you “an associate”
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We are always balancing the need of the
public to have access to affordable legal
services
with
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The need of the public to be protected from
unqualified or unethical people
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CA Legal Document Assistants are issued an
identification card when they register. The
front of the card, above the title, must also
contain the following statement in 12-point
boldface type: "This person is not a lawyer."
The contract between LDA and client must
also have that wording.
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NALA Paralegals shall:
(1) Disclose their status as paralegals at the
outset of any professional relationship with a
client, other attorneys, a court or
administrative agency or personnel thereof,
or members of the general public.
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Canon 7: a paralegal’s title shall be fully
disclosed
(See the entire canon)