Prior to the last few decades, the unauthorized practice of law was not the issue that it has become today. Until relatively recent times, the majority of paralegals was principally occupied with back-office tasks such as organizing and abstracting documents, depositions, medical records, and the like. A paralegal’s direct involvement with clients was an extremely rare event; thus opportunities to unwittingly engage in the unauthorized practice of law did not present themselves.

Fueled by a combination of factors that are beyond the scope of this article, the role of the paralegal has been steadily increasing. Today’s paralegals represent a diversity of educations, backgrounds, and experiences, which enhance their value in the legal process. The tasks paralegals perform are no longer so narrowly based; they are limited only by creativity, legal authority, and the mutually established perimeters of the paralegal and the supervising attorney.

As a natural result of this pushing of the paralegal envelope, paralegals are becoming more and more involved with clients, and the exposure to unintentionally engaging in the unauthorized practice of law is greater than ever. This article will address the unauthorized practice of law as it pertains to paralegals, and what can be done to ensure that the boundaries of the unauthorized practice of law are not crossed.

The unauthorized practice of law has been a subject in the legal field since the late 1920s. The older cases involve the prosecution of other professionals, i.e., real estate agents, accountants, and so on. The newer cases, along with the development of technology, have expanded to various press companies, e.g., Nolo and its numerous "how to" software programs and books. In the late 1980s and early 1990s, as the paralegal profession began to expand, cases against paralegals were starting to rise. Today, with the new roles of independent paralegals and document specialists (a status recognized in some jurisdictions), paralegals have found themselves the recipients of cease and desist letters, and, even worse, as defendants in court proceedings.

Currently, there seems to be a lack of a comprehensive definition of the practice of law. Beyond actual representation of clients in court, it can be difficult to explain those functions that must be performed by an attorney.

Professional associations assert only general statements concerning the authorized and unauthorized practice of law. The National Federation of Paralegal Association asserts that a paralegal shall not engage in the unauthorized practice of law.

The ABA stated it did not find it desirable to define what constitutes the practice of law, but did indicate:

Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of lawyers. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client . . . .

Over the years, however, courts have identified some parameters about whether there has been an unauthorized practice of law, and they include:

a. The service is commonly understood to involve the practice of law, also referred to as the traditional areas of practice test;

b. The service requires legal skill and knowledge beyond that of an average layperson, also referred to as the professional judgment test;

c. Whether the activity is frequently performed by a layperson, also known as the incidental legal services test;

d. The activity is characterized by a direct relationship between the attorney and the client; or,

e. The activity has caused harm to the client.

Historically, the courts of most jurisdictions seem to generally agree that paralegals may not:

a. Give legal advice;

b. Accept cases;

c. Set fees;

d. Appear in court;

e. Plan strategy;

f. Make legal decisions; or

g. Chart directions of a case.

Almost every state, except Arizona, has an unauthorized practice of law statute that makes it illegal for anyone who does not meet the requirements set by state bars to render legal services. It is imperative that a paralegal check the statutes, bar association, and paralegal association from his or her state to ascertain what the rules and guidelines are for the unauthorized practice of law.

The American Bar Association (ABA) has set some guidelines for the utilization of legal assistant services, which states:

Guideline 3: A lawyer may not delegate to a legal assistant: (1) responsibility for establishing an attorney-client relationship; (2) responsibility for establishing the amount of fees to be charged for legal services; and (3) responsibility for a legal opinion rendered to a client.

The National Association of Legal Assistant (NALA) Code of Ethics and Professional Responsibility includes the following canons and guidelines with regard to the unauthorized practice of law:

Canon 1: A legal assistant must not perform any of the duties that attorneys may perform nor take any actions that attorneys may not take;

Canon 2: A legal assistant may perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product;

Canon 3: A legal assistant must not (a) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law; and (b) establish attorney-client relationships, set fees, give legal opinions or advice or represent a client before a court or agency unless so authorized by that court or agency; and (c) engage in conduct or take any action which would assist or involve the attorney in a violation of professional ethics or give the appearance of professional impropriety;

Canon 4: A legal assistant must use discretion and professional judgment commensurate with knowledge and experience but must not render independent legal judgment in place of an attorney. The services of an attorney are essential in the public interest whenever such legal judgment is required.

Canon 5: A legal assistant must disclose his or her status as a legal assistant at the outset of any professional relationship with a client, attorney, a court or administrative agency or personnel thereof, or a member of the general public. A legal assistant must act prudently in determining the extent to which a client may be assisted without the presence of an attorney.

Guideline 2: A legal assistant should not (1) establish attorney-client relationships; set legal fees, give legal opinions or advice or represent a client before a court; nor (2) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law.

The National Federation of Paralegal Associations (NFPA) also has a Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement, and states:

EC-1.8 A paralegal shall comply with the applicable legal authority governing the unauthorized practice of law in the jurisdiction in which the paralegal practices.

An individual accused of engaging in the unauthorized practice of law faces a variety of consequences, anything from a cease and desist letter to criminal prosecution. Prosecutions include penalties from $25 to $500 and violations such as a first-degree misdemeanor. Oftentimes, the primary tools to control the unauthorized practice of law are generated from consumer fraud acts that prohibit the impersonation of an attorney and have been used to prosecute criminally nonattorneys who appear in court as if they were attorneys or who prepare legal documents.

There are cases on point about paralegals and other nonlawyers being prosecuted for the unauthorized practice of law. Although not all cases have been included, listed below are some cases of interest.

An attempt to define what paralegals may not do is assisted by defining in general terms what they can do. The expansion in the roles of paralegals has given rise to three distinct categories of paralegals:

a. Traditional, who work for law firms, corporations, or government bodies, and have direct supervision of attorneys;

b. Freelance (or contract) paralegals who contract themselves for services to attorneys; and

c. Legal document assistants or technicians (sometimes called independent paralegals), who work directly with the public.

Although only a handful of states allow legal document assistants to practice (for example, California and Florida), all paralegals face the problem today of what constitutes the unauthorized practice of law.

Further, while representation of a client in a legal proceeding has been a traditional area in which paralegals have been excluded, there are limited situations, principally administrative proceedings, where paralegals may appear. Nonlawyer representation under the Federal Administrative Procedures Act has shown that nonlawyers can effectively practice before administrative agencies. Some agencies that allow nonlawyer representation include:

a. Department of Treasury, Internal Revenue Service, and Tax Court;

b. Immigration and Naturalization Service;

c. Department of Energy;

d. Social Security Administration;

e. Drug Enforcement Agency;

f. National Labor Relations Board;

g. Equal Employment Opportunity Commission; and

h. Health and Human Services.

a. Be careful how you advertise your services;

b. Be certain to always communicate the fact that you are a paralegal and as such cannot give legal advice;

c. When conveying information that may be construed as legal advice, clearly identify the source of advice, e.g., it is the attorneys opinion that . . .;

d. Do not sign correspondence that may be construed as giving legal advice; e.g., letters to potential clients stating statute of limitations information;

e. Do not sign any pleadings;

f. If you are working in a small office, make sure the client meets with the attorney at some point during the matter;

g. When assisting in the negotiating of settlements, pass on the possible settlement figure to the opposing counsel, but do not get caught up in negotiating within a range of figures agreed to by the lawyer and the client;

h. Be careful when engaging in communications via cyberspace; gray lines develop when the cyber-communication is seen by someone other than the intended parties to the communication. This means when using listservs that may ask for your opinion, use the proper language in replying, e.g., it is the policy of our firm, or the attorneys with whom I work, indicate that . . .; consider placing a disclaimer on your e-mail communication;

i. Be certain that the attorney has reviewed your work.

All paralegals, whether traditional, freelance, or independent, must be aware of the unauthorized practice of law provisions in their states. They must all strive to stay within the boundaries of accepted practice.