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What is the Unauthorized Practice of Law?
Mary McMahon
Mary McMahon
When someone who is not qualified to practice law offers legal advice, prepares legal documents, or represents a client in court, this is known as unauthorized practice of law (UPL). Individual regions have their own statutes about what is considered unauthorized, and the line between perfectly legal activity and questionable activity is sometimes thin and confusing. If someone is convicted of it, he or she will face penalties; in many regions, people are warned and asked to simply desist before a case is pressed, as in some instances people unwittingly violate statutes about the unauthorized practice of law.
Laws against UPL are designed to protect consumers from fraudulent activity. As a general rule, they specifically restrict non-lawyers from any form of legal practice, as well as lawyers who have not qualified for a specific region's bar. For example, a lawyer from Florida may not practice law in Illinois unless he or she qualifies for the bar in Illinois or these states have bar reciprocity agreements. Legal document assistants, paralegals, notaries, and accountants also have their activities restricted by such statutes.
Things can get confusing when different areas have different restrictions. In some areas, for example, legal document assistants have a great deal of leeway, and their actions in one region could be considered unauthorized practice of law in another. As a general rule, people who work in any profession with legal implications should check on regional laws about UPL when they move, to ensure that they work within the law.
In some cases, the unauthorized practice is entirely accidental. For example, an accountant offers legal advice to a friend, or a notary prepares a few legal documents for a client. In this case, both parties are often unaware that the activity is actually illegal, and a warning usually suffices to prevent it from happening again. In other instances, someone may falsely claim to be a lawyer, or someone may offer legal services without being qualified.
In these cases of unauthorized practice of law, a court may take action, especially if the person's “services” ended up being harmful to his or her clients. The plethora of legal advice and document preparation services on the Internet has proved to be a particular topic of scrutiny, as it can be difficult to obtain information about legal qualifications and experience from a website. As a result, some people have been duped into purchasing legal documents and services from people who are not authorized to offer them, and this can result in legal catastrophes and general confusion.
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
Learn more...
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
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Discussion Comments
The U.S. Supreme Court addressed the issue of unauthorized practice of law in cases in the 1960s and 1970s. NAACP v. Button was one such case. In general, the U.S. Supreme Court held that states can regulate the practice of law within the state's boundaries, so long as the regulation does not violate any federal rights, such as first amendment rights to freedom of speech, peaceful assembly and to petition the government for a redress of grievances.
People who take the time to read and study the U.S. Constitution will find that under Article VI, Section 2, the U.S. Constitution, “Laws of the U.S. that shall be made in pursuance thereof (meaning after the ratification of the U.S. Constitution and not repugnant to it), and Treaties made and that shall be made under the authority of the U.S. are the "supreme Law of the Land", and every judge of every State shall be bound thereby, any Thing in any State Constitution or law to the contrary notwithstanding.” In other words, the government is prohibited from making or enforcing any law that violates any federal right. Unfortunately, officials take an oath of office to support the U.S. Constitution (see Article VI, Section 3, and 5 U.S.C § 3331), but then many, if not most, of the officials go about violating the U.S. Constitution. Even the Fourteenth Amendment says that no state shall “make nor enforce any law that abridges privileges or immunities of any citizen of the United States.” Article I, Section 10[1] of the U.S. Constitution prohibits any state from making any law that impairs contractual obligations. I have not found any court rulings on this aspect, but it would appear that the U.S. Constitution prohibits the states from impairing contractual obligations between a litigant and a non-attorney hired to help the litigant.
The U.S. Supreme Court has also stated in various cases that any "law" contrary to the U.S. Constitution is not a law and imposes no duties and grants no rights. (See Norton v. Shelby County). While litigants should be protected from the dishonest and incompetent, they should not be deprived of any help except from an attorney licensed in that state.
I helped a 16-year-old understand the laws and organize the facts so she could represent herself in the Montrose, Colo. Municipal Court, because neither she nor her parents could afford an attorney, and she did not face incarceration, so she was not entitled to a court appointed attorney. The girl was acquitted, but the dishonest judge filed a complaint against me for the supposed unauthorized practice of law. I never signed any documents for my friend, I did not speak for her in court, nor did I charge a fee, and documents filed with the court noted that my friend was getting help from a friend who is not an attorney.
The Colorado Attorney Regulation Counsel chose to pursue the issue after telling me that they did not read my response to the complaint. When the matter got to the Colorado Supreme Court, and I presented that Court with four U.S. Supreme Court rulings on the issue, the Colorado Supreme Court chose to not issue an injunction against me. However, I was also denied my request for a hearing to clear my record and to be awarded costs.
Like other aspects of the government, the courts are filled with dishonest officials and dishonest attorneys. Citizens need to learn their rights and start exercising them to hold all government officials fully accountable to the written laws, instead of letting officials violate our rights.
An Immigration lawyer licensed in the State of New York practices law here in IL. I got ripped off by this lawyer and complained to IARDC. IARDC sent me a letter that he's not licensed to practice here therefore they don't have jurisdiction over him. Is this an unauthorized practice of law in the state of IL? I want him to be punished. He stole my money for the job he didn't complete.
I hired a lawyer, but he gave my case to a young law graduate who was not admitted to the Bar yet to draft and file my court documents. I was changed excessive fees.
The lawsuit was a disaster. I never received an itemized bill with hours and services. The lawyer admitted under oath that he know very little about my case. Do I have a chance to get my money back?
If the unauthorized practice of law is particularly egregious, the offending attorney could suffer as severe punishment as being disbarred (i.e., lose his/her license to practice in the state).
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