Law office staff and the Unauthorized Practice of Law – Part 1
The issue of the unauthorized practice of law (“UPL”) comes up in certification for fitness in applications to the Georgia Bar, in legal malpractice cases, and in state bar disciplinary matters, and our firm has been involved in matters dealing with UPL in all three areas. The general rule is contained in O.C.G.A. § 15-19-51, and basically states that you have to be licensed by the State Bar to hold yourself out as a lawyer, appear in any court, and provide legal advice to clients. The State Bar has several Formal Advisory Opinions on the matter, including FAO 00-2, which cites to the Georgia Rules of Professional Conduct, Rules 5.5, 7.1, and 8.4. By its nature, UPL tends to implicate many of the various Rules that govern lawyer conduct.
This is the first of three articles in a series discussing UPL, that will cover the three types of matters where this issue most often arises. This article will deal with UPL in the context of certification for fitness and applications for admission to the Georgia Bar.
Law students usually seek summer jobs at a law firm, and some law firm staff members also decide to go to law school while they are employed as paralegals or legal assistants. While working for those law firms, law students or other non-lawyer staff are naturally exposed to situations where they have contact with firm clients—usually because the client may have an easier time getting in touch with the law clerk or paralegal. During those interactions with the firm’s client, the client may innocently ask questions about the matter’s status, the next steps to expect in the matter, or the law which applies to the client’s situation. The law student or paralegal, not wanting to bother the supervising lawyer—or perhaps wanting to show off the legal knowledge gained through work experiences at the firm or in law school—is eager to answer the client’s questions. If the law student or paralegal answers a question which should otherwise be answered only by an attorney, then that law student may have unknowingly violated O.C.G.A. § 15-19-51.
If the matter does not end well for the client, or the client takes some action based on what they were told by the law clerk or paralegal which harmed them, they will naturally be upset, and probably want to blame someone, and they may even report the issue to the State Bar. In the latter case, the complaint would be sent to one of the UPL Committees for investigation. If the investigation reveals that UPL was committed, the matter could then be turned over by the Committee to the County District Attorney for criminal prosecution.
In the case of a law student or paralegal being arrested for UPL, no doubt they would seek to resolve the potential criminal issues in a way that the matter would be sealed or expunged from their record. Later, after graduation, if the law student applies for certification for fitness to sit for the bar exam, even if the record of UPL is sealed or expunged, the applicant must still disclose the UPL matter on the application for certification for fitness. The disclosure of prior UPL will definitely be flagged, and the applicant’s application will be reviewed with more intense scrutiny. It’s likely that the applicant would be required to provide more detail or documentation, and the Board to Determine Fitness may require an informal hearing before the Board. It’s a big deal, and all of the time and financial resources spent on law school may be in jeopardy, as the applicant may not be certified fit to take the Bar Exam. No bar exam, no law license.
Given the pressures and exigencies of everyday law firm operations, non-lawyer staff commit UPL far more often than realized. The primary reason is because most non-lawyer staff—and some lawyers—don’t understand what actions are considered the practice of law. Although it’s specifically codified by statute, see O.C.G.A. §§ 15-19-50 and 51. And, under the Rules of Professional Conduct, the lawyer can be disciplined—including up to disbarment—for not properly supervising non-lawyer staff who commit UPL. Whether innocently done or the product of poor training and bad habits, the consequences are serious and can have long-term effects on both the law school graduate applying to take the Bar Exam and the lawyer and law firm.
But, there are a few things firms can do to minimize the chances of UPL occurring. First, educate the entire firm—lawyers and non-lawyers alike—on what actions can be considered UPL. Second, encourage lawyers in the firm to periodically confirm that the non-lawyer staff are not overstepping and doing things that could be considered UPL. Third, develop and provide a written policy addressing UPL and have everyone in the firm sign it. Because UPL is such a serious potential problem for your firm, a law practice management (“LPM”) audit is an effective way to find and deal with this sort of illegal behavior, and could save you heartache and money in the future. Chandler and Moore Law is experienced in conducting LPM audits for our clients. We have uncovered and confirmed UPL within client law firms, helped the firm address the issues, and hopefully avoid a serious future problem. Chandler & Moore Law is happy to discuss your situation.