04 Monday Sep 2017
Posted in Legal Analysis, Legal Writing, Litigation, Unauthorized Practice of Law, Wrongful Death
≈ Comments Off on An Analysis of the Unauthorized Practice of Law.
Wrongful Death Case Filed for Late Spouse Not Null and Void as Unauthorized Practice, by Mike Frisch, Legal Profession Prof (with hat tip to William P. Statsky)
A man’s wife dies in a hospital due to complications after surgery. He sues the hospital and other defendant in a wrongful death lawsuit. You can represent yourself in court without a lawyer, but can you represent someone else without a lawyer? No, you can’t. It’s called the unauthorized practice of law. So, how did he do it? -CCE
19 Sunday Jul 2015
Posted in Lawyer Supervision, National Exams, Paralegals/Legal Assistants, Professional Organizations, Regulation, Unauthorized Practice of Law
≈ Comments Off on A Rose By Any Other Name . . . .
Attorney’s Quick Guide to Paralegal Credentials, by Misty L. Sheffield, Atlanta Paralegal Services©2015
http://www.atlantaparalegalservices.com/2011/08/attorneys-quick-guide-to-paralegal-credentials/
Attorneys looking for a paralegal to hire full-time, part-time or on a contract basis will be faced with a variety of titles and credentials. Paralegals are not a licensed profession, but credentials are offered by the national paralegal organizations on a voluntary basis. This is a quick reference guide to the most commonly used national paralegal titles and credentials. This list does not include state-specific credentials. . . .
23 Saturday May 2015
Posted in Family Law, Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation, Unauthorized Practice of Law, Washington Supreme Court
≈ Comments Off on Limited License Legal Technicians – Can They Really Practice Law?
Future or Folly: Limited License Legal Technicians, by 2Civility, Illinois Supreme Court Commission on Professionalism (with hat tip to William P. Statsky)
It’s graduation time. This year, there is a brand new class of graduates in the State of Washington: Limited License Legal Technicians (LLLTs). These graduates are from a unique legal educational program—not a traditional law school. Yet they will eventually have a law license to perform limited legal services in family law. . . .
09 Saturday May 2015
Posted in Contract Law, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Unauthorized Practice of Law
≈ Comments Off on West Virginia Supreme Court of Appeals Rules On Fee-Splitting Between Lawyers and Non-Lawyers.
Tags
Contracts Prof Blog, Fee-Splitting, Jeremy Telman, Legal Ethics, Non-Lawyers, Rules of Professional Conduct
West Virginia Supreme Court of Appeals Refuses to Enforce Unethical Fee-Splitting Agreement, by Jeremy Telman, Contracts Prof Blog
Gary Rich and Joseph Simioni met in connection with an asbestos case involving West Virginia University. Rich is an attorney. Simioni has a J.D. but was never admitted to the bar. Starting in the 1990s, the two men collaborated on two additional asbestos cases and contracted with out-of-state law firms to help them class action litigation. It appears that until 2002, the men agreed that they would split the proceeds of their work 50/50. but then Rich announced there would be an 80/20 split in his favor. The parties then proceeded on this basis and committed their agreement to writing in 2005.
Rich now contends that he was under the impression that Simioni was a licensed attorney, and he did not realize that Simioni was not licensed until 2000 or 2001. He consulted with the former Chief Lawyer Disciplinary Counsel of the West Virginia State Bar, who told him that Sinioni ‘might not be able to get paid ethically.’
Simioni eventually filed sued in District Court against the out-of-state law firms, seeking recovery based in quantum meruit, unjust enrichment and breach of an implied contract. The District Court certified the following question to the Supreme Court of Appeals:
Are the West Virginia Rules of Professional Conduct statements of public policy with the force of law equal to that given to statutes enacted by the West Virginia State Legislature?
The Supreme Court of Appeals answered in the affirmative, at least with respect to Rule 5.4 of the Rules of Professional Conduct. which prohibits fee-sharing between lawyers and non-lawyers. The Court held for the first time (but based on numerous authorities) that fee-sharing agreements between lawyers and non-lawyers violate public policy. . . .
07 Saturday Mar 2015
Posted in Federal Trade Commission, Government, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff, Unauthorized Practice of Law, United States Supreme Court
≈ Comments Off on How A Dental Board Decision Could Affect The Business of Practicing Law.
Tags
Anti-trust, Board of Dental Examiners, Federal Trade Commission, Forbes, Ken Friedman, LegalZoom Inc., Monopoly, Non-Lawyers, Unauthorized Practice of Law
Could Dental-Board Decision Unlock Lawyer Control Of State Bar Regulations?, guest post Ken Friedman, Forbes
(Mr. Friedman is the Vice President of Legal and Government Affairs for LegalZoom Inc.)
Many state regulatory agencies are controlled by active members of the very professions they oversee. Last week, this fox-and-hen-house scenario was addressed by the United States Supreme Court, which ruled that such agencies are not immune to federal antitrust laws unless their actions are actively supervised by politically accountable government officials. While the case dealt specifically with dentistry (teeth whiteners everywhere, rejoice!), the ruling will have far broader ramifications for many professions, including how the practice of law is regulated.
In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Supreme Court upheld the FTC’s ruling that the Dental Examiners violated antitrust laws when they sent dozens of ‘cease and desist’ letters to teeth whiteners, claiming that they were engaged in the ‘unauthorized practice of dentistry.’ The letters and other strong-arm tactics worked – dentists in North Carolina established a monopoly over teeth-whitening services until the FTC intervened.
The Dental Examiners monopolistic campaign was modeled after a similar, if less successful, campaign engaged by the North Carolina State Bar.
The Supreme Court’s decision will have broad positive effects throughout the country. The Court’s ruling recognizes that letting professionals enforce their own monopolies creates a ‘real danger’ that they will act to further their ‘own interests,’ rather than the public interest. These practices increase prices to the detriment of consumers while decreasing consumer choice. The Court recognized that the problem is far worse when the boundaries of the state-granted monopoly are not ‘clearly articulated and affirmatively expressed as state policy,’ and the professionals are given the power to decide what is the ‘unauthorized practice’ of their profession.
This lack of clarity is not uncommon. For example, Rhode Island opens the door to this defining the unauthorized practice of law as the ‘doing of any act for another person usually done by attorneys at law in the course of their profession.’ They list a few examples, ‘without limiting the generality of the definitions.’
The active supervision concept is important. While the requirement is ‘flexible and context-dependent,’ the Court made clear that the ‘supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.’ The supervisor cannot be a market participant and needs to have the power to veto or modify decisions. This will require significant interaction.
Regulating the practice of law is the classic example of active market participants protecting their monopoly. In its amicus brief, the NCSB states that its authority is vested in the State Bar Council, 65 of whose 68 members are lawyers.
The threat this poses is not idle. . . .
28 Wednesday Jan 2015
Posted in Limited License Legal Technician Program, Paralegals/Legal Assistants, Regulation, Unauthorized Practice of Law
≈ Comments Off on Non-Lawyers Practicing Law? Washington’s Limited License Legal Technician.
Tags
Access To Justice Gap, Law Sites Blog, Legal Technicians, Limited License Legal Technician Program, Non-Lawyers, Robert Ambrogi
Debating The Pros and Cons of Non-Lawyers Practicing Law, by Robert Ambrogi, Law Sites Blog
http://www.lawsitesblog.com/2015/01/pros-cons-non-lawyers-practicing-law.html
As I noted here recently, I have an article in the current issue of the ABA Journal about the use of non-lawyers to help close the access to justice gap by allowing them to provide legal advice in limited circumstances. A particular focus of the article is Washington state’s limited license legal technician (LLLT) program.
The article prompted two posts last week at Above the Law that considered the pros and cons of allowing non-lawyers to practice law.
In the first, Can Nonlawyers Close The Access-To-Justice Gap?, Sam Wright, a ‘dyed-in-the-wool, bleeding-heart public interest lawyer,’ couldn’t quite decide how he feels about the idea. ‘It’s easy to see how this could be a win for low- and middle-income people who currently find themselves floundering in the access-to-justice gap,’ he writes. But then he goes on to say that it is ‘also easy to see how this could be a blow to the present-day legal profession with its hordes of underemployed lawyers’ and that it is ‘also easy to see how programs like Washington’s could do a poor job closing the access-to-justice gap.’ Wright’s bottom line is to take a wait-and-see position: ‘Regardless, the LLLT program is an interesting approach to a real problem, and I’ll be watching to see what comes of it.’
From everything I’ve learned about this issue, it is clear to me that this is not about displacing lawyers. The magnitude of the A2J gap is so enormous that lawyers can never close it alone. There could never be a sufficient level of pro bono or reduced-fee services to meet the needs. Study upon study has concluded that 80 to 90 percent of low and moderate income people with legal problems are unable to obtain legal representation. That is an enormous problem.
You may have noticed that, even with a glut of lawyers, the problem isn’t getting fixed. . . .
04 Saturday Oct 2014
Posted in Ethics, Lawyer Supervision, Paralegals/Legal Assistants, Unauthorized Practice of Law
≈ Comments Off on NFPA Paralegal Informal Ethics and Disciplinary Opinions and Articles.
Positions and Issues – Ethics, National Federation of Paralegal Associations
http://www.paralegals.org/default.asp?page=31
At this link, you will find documents and articles on paralegal ethics written by members of NFPA and NFPA Informal Ethics and Disciplinary Opinions.
NFPA is not the only national paralegal association to have an ethical code or to public ethics and disciplinary opinions. Also, be advised that those states that have regulated paralegals likewise have ethical requirements. Paralegals are also obligated to follow state ethical rules for lawyers in the states in which they work. Ethical rules and opinions published by the American Bar Association are advisory, not mandatory, on both lawyers and legal support staff.
Therese Cannon and Deborah Orlik have both written excellent books on paralegal ethics. I highly recommend each. If you are researching what ethical guidelines for non-lawyers, your research should include all ethical rules and guidelines that have been set by national and your state paralegal associations, as well as your state bar association.
Ethics for non-lawyer support staff may sometimes have indistinct, grey lines. If you are smart, you will take a step back when you see them. When it comes to ethical considerations, it is always best to proceed slowly or not at all. If you must err, then choose to err with caution. I strongly urge you to back away from anything that might give the appearance of impropriety or a breach of ethics. -CCE
28 Sunday Sep 2014
Posted in Ethics, Independent Paralegals, Lawyer Supervision, Paralegals/Legal Assistants, Unauthorized Practice of Law
≈ Comments Off on Oops – Non-Lawyers and the Unauthorized Practice of Law.
Tags
Ethics, Legal Advice, Legal Assistants, Legal Profession Prof, Mike Frisch, Non-Lawyers, Paralegals, STAND and Deliver Legal Services, Unauthorized Practice of Law
STAND And Deliver Legal Services, by Mike Frisch, Legal Profession Prof Blog
There are certain things that paralegals, legal assistants, and any other non-lawyer legal professional cannot do.
That brings us to this post. No doubt that the non-lawyer in this example had good intentions, and was trying to help. If you the non-lawyer in any situation, regardless of how much training or initials you have behind your name, you CANNOT GIVE LEGAL ADVICE.-CCE
Unauthorized practice decision of the Ohio Supreme Court is described by Kathleen Maloney:
A Lorain County non-lawyer and his corporation engaged in the unauthorized practice of law by providing legal advice to individuals facing criminal charges, according to an Ohio Supreme Court decision today.
The court directed King Ayettey Zubaidah and STAND, Inc., to stop practicing law and ordered them to pay a civil penalty of $20,000 for their involvement in four legal matters.
Zubaidah formed STAND (Striving Towards a New Day!) in 2008 after his experience with the justice system in the 1980s when he was convicted on a drug charge and sentenced to five years probation. STAND’s mission was ‘to help change the unfair and partial treatment against minorities in the judicial system.’
In each of the four cases brought before the Board on the Unauthorized Practice of Law (UPL), the defendant or a parent of the defendant asked for Zubaidah’s guidance during the criminal case and signed an agreement with STAND, which stated that the organization would assist them. No payment was required. Family members testified that Zubaidah did not claim to be an attorney and they knew he was not one.
In one matter, Isaiah Harris faced several charges in three different cases in 2008 involving the same victim. The court appointed a lawyer to represent him. Harris also signed an agreement with STAND.
The three cases were combined, and before Harris’ trial Zubaidah sent a letter to the judge indicating he had in-depth knowledge about the facts in the case and defending Harris’ actions.
In the midst of trial, Harris’ lawyer negotiated a plea deal for a four-year prison term. Zubaidah attended the trial, but his involvement was disputed. Harris’ lawyer claimed that Zubaidah advised Harris not to accept the deal. Harris rejected the offer and was later convicted and sentenced to 23 years, 6 months in prison.
In the other cases, Zubaidah sent letters to the judges asking for lower bonds, citing cases, and making legal arguments, though indicating that he was not an attorney.
In today’s per curiam opinion, the court noted that an individual who negotiates legal claims for another person and provides legal advice – even without charge and even when stating that he is not an attorney – is practicing law.
While a non-attorney who sends a character-reference letter for someone to a judge is not engaging in the unauthorized practice of law, the court stated that when a letter shifts to advocating specific legal positions for that person, the unauthorized practice of law occurs.
‘[D]espite the laudable desire to seek reform in the criminal system, such a desire cannot be realized by legally advising and advocating on behalf of a criminal defendant without violating our prohibition against the unauthorized practice of law,’ the opinion stated.
‘Zubaidah’s actions extended beyond the permissible conduct of endorsing a person’s character, advocating a social issue generally, advancing personal interests, or providing nonlegal advice to a family member. Despite Zubaidah’s good intentions and intermittent disclaimers, his conduct shows a pattern of advocating legal positions on behalf of defendants and providing legal advice to those defendants, leading to serious consequences for the STAND clients who trusted him.’
The court pointed out that Zubaidah held himself out as ‘an advocate with legal expertise,’ his agreements implied that he had specialized knowledge of the legal system, and his letters to judges ‘cited case law, raised legal issues, and asked for legal results.’ . . . [Emphasis added,]
The Researching Paralegal 
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