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Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above. But most lay people and many
attornies are unqualified to prepare some or
all of them.
So just where does the practice of law begin?
Dick
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In article <n6ent3pih51udr9tmmtlq4fil9vs7d310i@4ax.com>,
Dick Adams <rdadams@panix.com> wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above.
Yeah, well, about the only thing I can think of where
it is _required_ that the preparer be an attorney
is a bar exam.
So just where does the practice of law begin?
Providing an authoritative answer to that question would likely involve the
practice of law, itself. *GRIN*
Luckily, most legislative bodies have done it for us, and it can be found
in the definitions applicable to the statute prohibiting the unauthorized
practice thereof. Check the lawbooks for the jurisdiction involved.
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On Sat, 15 Mar 2008 08:00:09 -0400, rdadams@panix.com (Dick Adams) wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above. But most lay people and many
attornies are unqualified to prepare some or
all of them.
So just where does the practice of law begin?
The practice of law is, basically, doing as a business what licensed
attorneys commonly do.
Most of what you listed has, in fact, been challenged at some time or another
as the unauthorized practice of law. The drafting of wills, for example, is
in some cases the practice of law, when it isn't ancillary to the activities of
some other professional fiduciary.
I would say, as a practical matter, that the practice of law is what
requires a license as an attorney to do, and for which one is punished
for doing so without such a license. This varies from location to
location.
There is some activity which is clearly and unambiguously the practice
of law, such as representing people in proceedings before a court of law,
and a lot more which is in a grey area, such as drafting contracts,
wills, trust documents, representing people as a nonattorney in administrative
proceedings, acting as a paralegal, and others, in which the practice of
law has, perhaps, "begun," but which is not, yet, forbidden as the
unauthorized practice of law.
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rdadams@panix.com (Dick Adams) wrote in
news:n6ent3pih51udr9tmmtlq4fil9vs7d310i@4ax.com:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above. But most lay people and many
attornies are unqualified to prepare some or
all of them.
So just where does the practice of law begin?
Dick
Each jurisdiction has its own rules.
Certain things will be considered practicing law no matter where you are,
e.g., representing yourself as an attorney while giving advice on legal
matters or appearing before or filing papers with a court.
Certain things will not be considered practicing law no matter where you
are, e.g., general discussion of legal issues or pro se representation.
Some places allow you to help others fill out legal forms; some places
don't.
Exactly where you are and exactly what you're doing is crucial to the
determination.
By the way,
*** I am not a lawyer, so this can't be legal advice. ***
Discuss amongst yourselves whether the statement above will protect me from
a charge of practicing law.
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Dick Adams wrote:
Where does the practice of law begin?
Dick
Andy writes:
It's been my experience that "the practice of law" begins as
soon as a licensed attorney observes that he/she is losing
business because a lay person is giving out the same advice.
Unless there is some financial loss, attorneys are content
to let "those with lesser training" muck up things so that
they can step in, at an hourly rate, to fix it.....
Perhaps I am being too cynical....
However, as a licensed engineer, in a state where all
people who "engage in the practice of engineering" must
be licensed, I can say for a fact that having the license
on the wall has NOTHING to do with the accuracy of an
engineering design....
The stuff I built back in high school worked well, just
as the stuff I have built, under license, fifty years later....
Something is either "correct" or it isn't..... both in engineering
and in law....
Andy in Eureka, Texas
PS Imagine what would happen if lawyers who gave advice
on how to hook up a doorbell, or how to change the
oil in a car, were prosecuted for "practicing engineering
without a license ".......
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On Mar 15, 8:00 am, rdad...@panix.com (Dick Adams) wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above.
Now, Dick, are you sure you can answer that question without your
answer constituting legal advice? <g>
Sometimes it is, sometimes it isn't.
But most lay people and many
attornies are unqualified to prepare some or
all of them.
That's true too. The rules regulating attorney practice recognize
that simply being an attorney does not make one competent to handle
_any_ kind of legal services; each attorney is supposed to recognize
the limits of his own ability to provide competent representation in a
particular area and either get additional training, or associate
himself with qualified counsel before taking on representation of an
unfamiliar kind of matter.
So just where does the practice of law begin?
Every state's highest court has the inherent power to set the rules
for who may practice law in that state. The definition of what
constitutes the practice of law is also up to that court to decide.
Here in MD, frex, the standard for determining whether one is
"engaging in the practice of law" focuses on whether the activity in
question requires legal knowledge and skill to apply legal principles
and precedent; this can include not just trial work but preparation of
legal documents, their interpretation, the giving of legal advice, or
the application of legal principles to problems of any complexity.
Attorney Grievance Commission v. Hallmon, 343 Md. 390 (1996).
So, _maybe_, hypothetically, a non-lawyer person (who is not working
as a paralegal under the supervision of a licensed attorney) can put
together a simple will and walk the testator through the fairly
mechanical process of getting it signed and properly authenticated
with witnesses, notary, etc., and if no actual legal advice-giving is
involved this act may survive a UPL challenge. But IMO it's pretty
hard to do any such thing without in some way having the context in
which it is done being construed as the giving of legal advice to the
testator as to what form of will is appropriate, what terms to include
to meet his particular needs, and so on.
Why do you ask, exactly, if I may inquire?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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rdadams@panix.com (Dick Adams) wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above. But most lay people and many
attornies are unqualified to prepare some or
all of them.
So just where does the practice of law begin?
Good question that the courts have struggled with over the years.
There was a big case in Texas fairly recently where the state charged
Nolo Press with practicing law for publishing its self-help books.
That eventually got shot down, but it took quite a while.
For me the practice of law means not only creating legal documents, but
using legal discretion in how those documents are formed in the
specific individual case. Things that are fairly pro-forma, basically
filling in the blanks, don't require legal discretion and as a result
are not practicing law.
Stu
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In article <sm1qt35i1o8sp427eck77a100agu78kt6o@4ax.com>,
Deadrat <a@b.com> wrote:
[[.. munch ..]]
By the way,
*** I am not a lawyer, so this can't be legal advice. ***
Discuss amongst yourselves whether the statement above will protect me from
a charge of practicing law.
The opposite of legal advice, is 'illegal advice'.
Giving illegal advice is the crux of 'practicing without a license'..
There is an (at least _somewhat_ colorable :) argument that the statement
is thus an _admission_ of the proscribed activity. <evil grin>
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On Mar 16, 6:40 am, Deadrat <a...@b.com> wrote:
rdad...@panix.com (Dick Adams) wrote innews:n6ent3pih51udr9tmmtlq4fil9vs7d310i@4ax.com:
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bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
Dick Adams <rdadams@panix.com> wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above.
Yeah, well, about the only thing I can think of where
it is _required_ that the preparer be an attorney
is a bar exam.
What you're saying is that it's the practice of law if a license is
required, and not if it's not. That's a tautology that is completely
unhelpful. Certainly there must be some overarching policies that will
help someone determine what things are practicing law and what aren't.
Stu
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In article <sm1qt35i1o8sp427eck77a100agu78kt6o@4ax.com>,
Deadrat <a@b.com> wrote:
*** I am not a lawyer, so this can't be legal advice. ***
Discuss amongst yourselves whether the statement above will protect me from
a charge of practicing law.
It isn't practicing law because you didn't charge for it.
Seth
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In article <n6ent3pih51udr9tmmtlq4fil9vs7d310i@4ax.com>,
Dick Adams <rdadams@panix.com> wrote:
Where does the practice of law begin?
Is it illegal for a non-attorney to prepare
wills, financial plans, trust agreements, or
tax returns? And the answer is NO to all of
the above.
It's certain legal to do them for yourself.
But most lay people and many
attornies are unqualified to prepare some or
all of them.
So just where does the practice of law begin?
In New York, I once asked an attorney just that question. He told me
there were two things that were practice of law: (1) Acting for
somebody else in circumstances where a lawyer was required (e.g. in
court). (2) Giving legal advice and charging for it. (The First
Amendment allows one to give all the legal advice one wants.)
Seth
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On Wed, 19 Mar 2008 06:58:12 -0400, sethb@panix.com (Seth) wrote:
It isn't practicing law because you didn't charge for it.
Most definitely not true.
Daniel Reitman
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On Mar 19, 3:58 am, se...@panix.com (Seth) wrote:
In New York, I once asked an attorney just that question. He told me
there were two things that were practice of law: (1) Acting for
somebody else in circumstances where a lawyer was required (e.g. in
court). (2) Giving legal advice and charging for it. (The First
Amendment allows one to give all the legal advice one wants.)
Seth
This doesn't seem right. A lawyer who is working on a pro bono case
is not practicing law? I think such a lawyer would disagree. Also by
this definition, a pro bono lawyer could never be guilty of legal
misbehavior.
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sethb@panix.com (Seth) wrote:
Deadrat <a@b.com> wrote:
It isn't practicing law because you didn't charge for it.
Sorry, but whether a charge is made for legal services has no bearing
at all as to whether it is practicing law. None.
The issue is the type of service provided, and whether it takes legal
reasoning, discretion and experience or education to do it properly.
Stu
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sethb@panix.com (Seth) wrote:
In New York, I once asked an attorney just that question. He told me
there were two things that were practice of law: (1) Acting for
somebody else in circumstances where a lawyer was required (e.g. in
court). (2) Giving legal advice and charging for it. (The First
Amendment allows one to give all the legal advice one wants.)
The information your lawyer gave you is simplistic and should not be
taken literally in all cases.
Yes, people give free advice all the time without a problem. But if
someone represents that he is qualified to give advice on a legal
issue, and does so at the request of the other person, it can be
practicing law even if no charge is made.
Stu
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sethb@panix.com (Seth) wrote in
news:9ds1u39lphp7srhjqiok78h3hfht0kse4t@4ax.com:
In article <sm1qt35i1o8sp427eck77a100agu78kt6o@4ax.com>, Deadrat <a@b.com> wrote: It isn't practicing law because you didn't charge for it. Seth
But I believe that it's possible to practice law without remuneration.
It's more a matter of the specificity of the advice and the taking of a
position of trust. Or representing oneself to a court as an attorney.
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Robert Bonomi wrote:
In article <sm1qt35i1o8sp427eck77a100agu78kt6o@4ax.com>, Deadrat <a@b.com> wrote: [[.. munch ..]] The opposite of legal advice, is 'illegal advice'.
sense of the word "legal" but no, in that it doesn't cover the whole
spectrum. The strict negation of "legal advise" is "not legal advice"
which can be either "advice that doesn't deal with the law in any way"
OR "advice that deals with the law in an illegal manner (either becuase
the advice is on how to break the law or the advice is otherwise illegal
to give.)"
I.e. if you think about positive numbers, the opposite would be the
negative numbers but then you're leaving out '0' from consideration. In
the arena of advice, you could give advice on how to fix a leaky faucet,
which is neither legal advice OR illegal advice. You're mixing up two
different meanings of legal ("does the advice deal with how to do
something in a law situation" and "does the advice break any laws") and
conflating them.
Giving illegal advice is the crux of 'practicing without a license'..
There is an (at least _somewhat_ colorable :) argument that the statement
is thus an _admission_ of the proscribed activity. <evil grin>
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On Mar 19, 6:58 am, se...@panix.com (Seth) wrote:
It isn't practicing law because you didn't charge for it.
And Seth further wrote:
In article <n6ent3pih51udr9tmmtlq4fil9vs7d3...@4ax.com>,
Dick Adams <rdad...@panix.com> wrote:
In New York, I once asked an attorney just that question. He told me
there were two things that were practice of law: (1) Acting for
somebody else in circumstances where a lawyer was required (e.g. in
court).
Sure, that's the obvious one.
(2) Giving legal advice and charging for it. (The First
Amendment allows one to give all the legal advice one wants.)
That part's not so simple. Are you saying, here and in your other
post of the 19th, that it's not UPL for a nonlawyer to hold oneself
out as a legal professional and give particularized legal advice,
intending people to rely on your guidance to act in ways that will
change the course of their lives, as long as you do not charge them
for it? To the contrary, such advice-giving may well be the
unauthorized practice of law, and even though it may be below the
radar and rarely be prosecuted as such (either because the authorities
are never notified your friendly conversation took place, or because
of the de minimis nature of most such advice-giving), that doesn't
change the analysis. Pro bono legal advice is free to the client, but
anyone who sets up shop as "The Free Legal Clinic" better be a
licensed lawyer. The real criterion, as I mentioned in an earlier
post, in determining whether a particular act or function constitutes
the practice of law is whether that act requires the application of
legal principles to particular problems of any complexity.
The law, like other licensed professions, requires certification of
its practitioners not just to keep it an exclusive club, but to
protect the public from quacks. If you help a friend remove a
splinter from his finger using a heated needle, is that the unlicensed
practice of medicine? Maybe, but it's de minimis and no one is going
to do anything about it, just like no one is likely to do anything to
bring UPL charges against you if you a nonlawyer tell a friend what
you think he should do in a legal matter. If the recipient knows
you're a nonlawyer, he will take your advice for what he thinks its
worth but will not rely on it as he would the advice of a legal
professional. If, however, a nonlawyer holds himself out as a legal
professional, with all the trappings, the advice-seeker could well be
misled to assume that the advice-giver actually has the training and
experience it requires to make the necessary judgment calls, and may
rely on that advice to his detriment without the natural cushion of
skepticism that accompanies receipt of "friendly" advice.
BTW, you are right that the first amendment generally prohibits any
prior restraint on the content of your speech. It certainly does
not, however, prevent the government from criminalizing or otherwise
penalizing certain speech that the courts or the legislature have
found to be potentially harmful to the public health, safety or
welfare. You cannot falsely shout "fire" in a crowded theater
without risk of being prosecuted for reckless endangerment or such.
You cannot defame someone without risk of being sued and having the
courts enforce a judgment against you. You cannot go into a bank and
say to the teller, "I have a gun, give me all your money" without
being charged with robbery, and you likewise cannot hold yourself out
as a lawyer and give legal advice without actually being a lawyer or
else you may be prosecuted for UPL.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Mike <prabbit1@shamrocksgf.com> wrote in
news:68i4u3desgj1mgg3ccsena64bcolih1lub@4ax.com:
Robert Bonomi wrote:
Yes and no.
In the sense that "yes" and "no" are opposites?
Yes, in that it IS the opposite ("the negative of") in one
sense of the word "legal" but no, in that it doesn't cover the whole
spectrum. The strict negation of "legal advise" is "not legal advice"
which can be either "advice that doesn't deal with the law in any way"
OR "advice that deals with the law in an illegal manner (either
becuase the advice is on how to break the law or the advice is
otherwise illegal to give.)"
I think you've missed the point. The post was a joke. Or considering
that it wasn't funny, perhaps it was the opposite of a joke. In any
case, it wasn't meant to be taken seriously. Check out the "<evil
grin>" comment below, by which I think the OP really meant "<benign
frown>" to signal that he knew he was exploiting the two meanings of the
word "legal," about the law and within the law.
I.e. if you think about positive numbers, the opposite would be the
negative numbers
I don't think this helps. "Opposite" has no mathematical meaning for the
natural numbers. The set of inverses of the positive numbers is the
negative numbers, and the complement of the set of positive numbers is
the nonpositive numbers. But that leaves you with pretty much 0
relevance to the example, which is about two shades of meaning, each
orthogonal to the other, if you will. You might need a court ordinal
here.
but then you're leaving out '0' from consideration.
In the arena of advice, you could give advice on how to fix a leaky
faucet, which is neither legal advice OR illegal advice. You're mixing
up two different meanings of legal ("does the advice deal with how to
do something in a law situation" and "does the advice break any laws")
and conflating them.
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Mike Jacobs <mjacobslaw@gmail.com> wrote in
news:g8i4u3l6gvm7kk1psq1c40gk4vletkj1dr@4ax.com:
On Mar 19, 6:58 am, se...@panix.com (Seth) wrote:
And Seth further wrote:
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In article <s7i4u39846ecqnc5lrcdf8sg17eeh04ors@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
sethb@panix.com (Seth) wrote:
Sorry, but whether a charge is made for legal services has no bearing
at all as to whether it is practicing law. None.
The issue is the type of service provided, and whether it takes legal
reasoning, discretion and experience or education to do it properly.
So if my father asks me for advice about his will, and I analyze his
specific facts and the relevant laws, and provide advice that is of
the sort that "takes legal reasoning, discretion and experience or
education to do it properly" I'm practicing law? Wouldn't prohibiting
me from that be a violation of the First Amendment?
Seth
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In article <l7i4u355th40nvrbgofut84ilk4hl7ml99@4ax.com>,
Daniel R. Reitman <dreitman@spiritone.com> wrote:
On Wed, 19 Mar 2008 06:58:12 -0400, sethb@panix.com (Seth) wrote:
Most definitely not true.
How is giving legal advice in conversation not a First Amendment
protected activity?
Seth
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sethb@panix.com (Seth) wrote:
Daniel R. Reitman <dreitman@spiritone.com> wrote:
How is giving legal advice in conversation not a First Amendment
protected activity?
As already described, it depends on the context. If someone
spontaneously spouts an opinion on a legal issue, that's not a problem.
But if he is asked, and he represents that he is qualified to give such
an opinion, it can well be the practice of law.
Stu
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sethb@panix.com (Seth) wrote:
Stuart Bronstein <spamtrap@lexregia.com> wrote:
So if my father asks me for advice about his will, and I analyze
his specific facts and the relevant laws, and provide advice that
is of the sort that "takes legal reasoning, discretion and
experience or education to do it properly" I'm practicing law?
Wouldn't prohibiting me from that be a violation of the First
Amendment?
Presumably your father knows you haven't been through law school and
haven't passed the bar. So you can certainly give him your opinion.
On the other hand if you tell him that you participate in a legal
newsgroup, that as a result you know everything there is to know on the
subject of his will, and that he doesn't need to consider getting
advice from a qualified professional, then I'd say you were improperly
practicing law.
Stu
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Seth wrote:
In article <s7i4u39846ecqnc5lrcdf8sg17eeh04ors@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
So if my father asks me for advice about his will, and I analyze his
specific facts and the relevant laws, and provide advice that is of
the sort that "takes legal reasoning, discretion and experience or
education to do it properly" I'm practicing law? Wouldn't prohibiting
me from that be a violation of the First Amendment?
Seth
And further, under that thinking, couldn't the downloading of a do it
yourself will or trust form and filling it out for oneself or for
another be considered practicing law? Actually, one would not even have
to use a prepared form -- just write the will properly as described above.
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On Mar 21, 7:05 am, Deadrat <a...@b.com> wrote:
Mike Jacobs <mjacobs...@gmail.com> wrote innews:g8i4u3l6gvm7kk1psq1c40gk4vletkj1dr@4ax.com:
I think it's a bit more stringent than that. The gov can criminalize
speech that's actually harmful, i.e., speech that's pretty much
equivalent to action.
Does it have to be "actually" harmful, as opposed to only
"potentially" harmful?
Is an unauthorized, unlicensed person who holds himself out as a
doctor or lawyer and gives "professional" advice which someone relies
on, only going to be prosecuted if his advice turns out to be in fact
harmful? Even quacks can have a good bedside manner, cure ills, win
cases, fly airliners etc. (reference "Catch Me If You Can" not to
mention "My Cousin Vinnie") but their unauthorized practice of a
licensed profession is still an illegal act and can be punished.
Maybe the difference is that the "holding out" constitutes the
requisite "equivqalent to action" to impose liability, whereas someone
who does _not_ hold himself out as a professional advisor, just
speaking as a friend or on a soapbox, can spout off all he wants about
legal principles or miracle cures without being brought up on charges
of unauthorized practice.
You cannot defame someone without risk of being sued and having the
courts enforce a judgment against you.
Except for the disgraceful criminal libel statutes now being dusted off
in places like Colorado, defamation is not a crime.
and you likewise cannot hold yourself out
as a lawyer and give legal advice without actually being a lawyer or
else you may be prosecuted for UPL.
Of course you're correct about the potential for prosection. It's the
likewise that I'm having trouble with. Suppose a nonlawyer prepares a
court case for another party. Include as much detail as necessary,
including fact-specific advice, detailed legal strategy, directions in
filling out and filing the necessary legal papers, and so on. Everything
except false representation directly to the court. I think a case can be
made for UPL even if the "client" says, "Of course I knew he wasn't a
lawyer. In fact, he told me his only legal training came from watching
Law and Order. I don't trust lawyers, but I like this guy. And anyway,
the outcome of my case is perfectly satisfactory to me."
Leaving aside exactly how the facts come to light, if they do, I think
the guy is still gonna get dinged for UPL, but I don't see the parallel
to shouting fire in a crowded theater or threatening a teller with a
nonexistent gun.
I'm guessing it's because of all hte quackery that happened _before_
the professions became licensed, which caused the state to decide to
regulate them in the first place (generally that all happened around
100 years ago; Tom Jefferson and Abe Lincoln never had to sit for a
bar exam but neither did plenty of "nagin' judges" in the Wild West
whose legal education generally went about as far as reading a book on
law) and the fact that allowing such UPL to take place as long as "no
harm no foul" would have the actual harmful effect of ruining the
statutory scheme designed to protect the public. That's the same
reason they don't let you drive without a license, cut hair without a
license, etc. even though you may do a perfectly good job of it.
Maybe it's just me.
Maybe. But I do get your point.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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Dick Adams wrote:
So just where does the practice of law begin?
I think it's a bit simpler than some of the replies you've gotten. I'd
think that to engage in the practice of law which would be an illegal or
unethical act you need to represent yourself as a lawyer or someone who
has specific training or licenses which you don't have.
Your question isn't really to define the practice of law but to
determine the illegal practice of law.
-paul
ianal
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On Mar 21, 7:05 am, Deadrat <a...@b.com> wrote:
Mike Jacobs <mjacobs...@gmail.com> wrote innews:g8i4u3l6gvm7kk1psq1c40gk4vletkj1dr@4ax.com:
Except for the disgraceful criminal libel statutes now being dusted off
in places like Colorado, defamation is not a crime.
Sorry, left this comment out of my last post. I agree with you,
but. Note that in my previous comment, the one you were replying to,
I said the governrnent is not prohibited by the 1st Am from
"criminalizing _or_otherwise_penalizing_" certain harmful speech.
Allowing private tort liability to apply to an act is one way the
government can penalize undesirable behavior even if it does not rise
to the level of a criminal offense. A tort suit is a form of state
action since it uses the enforcement powers of the state -- literally,
the use of force if necessary -- to carry out the judgment of the
court and to seize a judgment debtor's property to satisfy a judgment
entered against him.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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sethb@panix.com (Seth) wrote in news:h197u3dc9kg1l70ogro0pbb8ina0i6v3g1@
4ax.com:
In article <s7i4u39846ecqnc5lrcdf8sg17eeh04ors@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
So if my father asks me for advice about his will, and I analyze his
specific facts and the relevant laws, and provide advice that is of
the sort that "takes legal reasoning, discretion and experience or
education to do it properly" I'm practicing law? Wouldn't prohibiting
me from that be a violation of the First Amendment?
What happens if during your conversation with your father about his will,
you father complains of a pain in his chest? You analyzie his particular
symptoms and provide advice that takes medical reasoning, discretion, and
a medical degree to do properly. Are you practicing medicine?
Since there are over 50 jurisdictions, each with its own rules, a short
newsgroup post can't be definitive. But perhaps it would be helpful to
discuss one particular case, and my random pick is Washington, DC.
Washington, DC is a somewhat special case, given that lawyers are thick
on a ground littered with judicial and quasi-judicial institutions. And
given that the lawyers often live and work in nearby, actual states.
The relevant regulation there is the Orwellian (or at least Hellerian)
Rule 49, which may be found here:
http://www.dcappeals.gov/dccourts/docs/rule49.pdf
Rule 49 can be a trap for lawyers as well as wannabes. Let's say that a
lawyer not admitted to the DC Bar meets his favorite hooker -- I think of
her as Bambi -- in the Mayflower Hotel, and after advancing that
particular lawyer-client relationship, he takes a phone call from one of
his clients in Maryland. The lawyer may be deemed to have committed the
unauthorized practice of law in DC even if the lawyer and the client
discuss matters that have nothing to do with laws relevant to DC. Even
if the lawyer tells his client where he is and that he's not authorized
to practice law there.
Nevertheless, here's where we start:
<quote src="rule49" section="(a)" title="General Rule">
No person shall engage in the practice of law in the District of Columbia
or in any manner hold out as authorized or competent to practice law in
the District of Columbia unless enrolled as an active member of the
District of Columbia Bar, except as otherwise permitted by these Rules.
</quote>
Have we got that? A person engages in the unauthorized practice of law
if he's not authorized to practice law by the DC Bar except when he
doesn't have to be authorized by the DC Bar.
Fortunately, explication may be found here:
<quote src="rule49" section="(b)" subsection="(2)" title="Practice of
Law">
.... the provision of professional legal advice or services where there is
a client relationship of trust or reliance.
</quote>
Legal services are mostly what you'd expect: preparing legal documents,
legal opinions, or pleadings; providing advice about any of the
aforementioned preparations; appearing as attorney before a judicial body
"Holding out" is representing or implying that you're a lawyer. Putting
"Esq" after your name, for example.
But there a couple of wrinkles. First of all, what is "professional"
legal advice? A non-lawyer can't be a Bambi, but what makes Bambi a pro?
Is it just because she charges for her services? Is it because she's
better at what she does than the lawyer's wife? What happens if the
lawyer give Bambi legal advice instead of cash? Are amateur legal advice
OK? Interestingly enough, it's against Rule 49 to "[f]urnish an
attorney" to perform the listed services. So apparently a non-lawyer
can't be Bambi's pimp either.
But I digress.
(And I've also condensed things a bit. Proscribed is not only
"preparing" legal opinions but also "expressing" them.)
There is non-binding commentary provided with the actual rule. The
commentary makes clear that UPL has two components -- activities and a
client relationship. The rule "is not intended to cover conduct which
lacks the essential features of an attorney-client relationship."
Accepting money is considered strong evidence for a client relationship,
but it's not necessary. Even providing fair warning is not enough. It
takes "special care" to inform someone who might be misled by the
situation in which the advice is given.
Back to your Dad. Does he know you didn't go to law school?
Seth
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In article <h197u3dc9kg1l70ogro0pbb8ina0i6v3g1@4ax.com>,
Seth <sethb@panix.com> wrote:
In article <s7i4u39846ecqnc5lrcdf8sg17eeh04ors@4ax.com>,
Stuart Bronstein <spamtrap@lexregia.com> wrote:
So if my father asks me for advice about his will, and I analyze his
specific facts and the relevant laws, and provide advice that is of
the sort that "takes legal reasoning, discretion and experience or
education to do it properly" I'm practicing law? Wouldn't prohibiting
me from that be a violation of the First Amendment?
Wouldn't prohibiting me from 'shouting fire in a crowded theatre' be a
violation of the First Amendment?
Wouldn't prohibiting me from saying 'the 7 words you cant use on television',
on television, be a violation of the First Amendment?
Courts _have_ held that the 1st Amend. is =not= an absolute. That restrictions
based on "time, place, and manner" of speech ARE allowed, as long as certain
qualifications are met.
Proscribing the unauthorized practice of law _is_, arguably, nothing more than
a restriction on a particular "manner" of speech.
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On 2008-03-20 04:23:23 -0700, Stuart Bronstein <spamtrap@lexregia.com> said:
Sorry, but whether a charge is made for legal services has no bearing
at all as to whether it is practicing law. None.
The issue is the type of service provided, and whether it takes legal
reasoning, discretion and experience or education to do it properly.
By the same token you coud argue that a mother who analyzes her sick
child's symptoms, makes an educated guess that the situation is not
serious, takes the child's temperature and finds that it is slightly
elevated, and finally decides in her discretion to give the child two
baby aspirin tablets, is practicing medicine without a license.
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