Avoiding the Unauthorized Practice of Law
“Live one day at a time emphasizing ethics rather than rules.”
- Wayne Dyer-
A common concern amongst practicing attorneys when utilizing paralegals is the risk of partaking in the unauthorized practice of law. There are many tasks that an attorney may delegate to the paralegal in order to free himself up so that he may complete other responsibilities. Passing on certain assignments to the paralegal helps the attorney become more efficient and provides economic relief to the client. Both the attorney and paralegal must be aware of which assignments should and should not be delegated, in order to assure that they do not cross the line and engage in the unauthorized practice of law.
Restrictions on who can and cannot practice law go as far back as the colonial era. The first statutes that dealt with the unauthorized practice of law in the United States were established in the 1850s and were adopted by several states. Later, during the Depression, the majority of the limitations that we have today were imposed. This was at a time when attorneys needed to protect their economic interests from any and all competition. Even though the unmet need for legal services is well documented, attorneys have through time consistently opposed giving up their traditional functions. There are obvious reasons for their stance including concerns as to the quality of legal services that someone who is not trained and licensed as an attorney may provide. In Florida, the current operative statute proscribing and penalizing the unauthorized practice of law is Florida Statute § 454.23 (2012).
To date, there is no definitive list of tasks that captures the meaning of practicing law. The concept is flexible and as it changes over time with many varying factors; such as: economics, complexity of laws, political and professional activity, and consumerism to name a few. The ABA Model Code states as follows: “It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law.” However, there are many court decisions and have set a series of tests to determine what defines the practice of law. In The Florida Bar v. Neiman, 816 So.2d 587, 594 (Fla. 2002), the Court provided examples of the practice of law:
acts commonly understood to be the practice of law, such as: holding himself out as an attorney in dealings with others; attempting to argue and advocate the merits of cases, the applicability of the law, evidentiary issues, liability issues, discovery matters, and settlement matters with opposing counsel; and attempting to analyze statutory and case law and to discuss it with clients and opposing counsel.
Also, may statutes and court rules set forth the definition of the practice of law. Rules that bar the unauthorized practice of law affect lawyers and nonlawyers similarly. For example, pursuant to Florida Statute § 454.31 an attorney engages in the unauthorized practice of law when they practice while they are suspended or practice after they have been disbarred.
It is the lawyer’s duty to avoid the unauthorized practice of law. When utilizing a paralegal, an attorney must be aware of the rules and regulations governing the unauthorized practice of law in order to prevent delegating tasks to the paralegal that fall under the practice of law. Any nonlawyer engages in the unauthorized practice of law when they preform services for the client that are considered the practice of law. Rule 4-5.3, Rules Regulating The Florida Bar, requires lawyers to be responsible for the training and management of paralegals as well as the proper delegation of tasks to paralegals.
One of the more obvious lawyering functions that is universally considered to be an exclusive attorney role and should not be delegated to a paralegal is representing a client in court proceedings. The basis for barring a nonlawyer from representing clients during court proceedings extends to another facet of litigation, the taking of depositions. The lawyer’s function in in representing a client being deposed consists of making objections to questions on evidentiary grounds and also preserving those objections for the record. When an attorney is deposing a party or a witness he is carrying out a task which is comparable to that of direct examination in a trial and consequently, must be familiar with all of the intricate rules of evidence. In fact, the First District Court of Appeal has held “that the taking of a deposition constitutes the practice of law under section 454.23, Florida Statutes.” State v. Foster, 674 So.2d 747, 749 (Fla. 1st DCA 1996).
The most involved category of conduct that constitutes the practice of law is giving legal advice. Similar to appearing on behalf of client in court, framing a substantive legal opinion to direct a client’s conduct is another primary attorney role that cannot be passed on to the paralegal. In litigation, most paralegals have regular communication with clients, which causes possibilities for the paralegal to give legal advice. To avoid giving legal advice and refraining from committing the unauthorized practice of law, the paralegal must first consult with the supervising attorney before relaying any of the attorney’s advice to the client. The paralegal should only communicate the direct and exact advice of the attorney without any expansion, interpretation or analysis. The paralegal with the consent of the attorney can express the attorney’s legal advice to the client so long as the paralegal is not framing and giving their own legal advice.
The final core category of functions that is reserved solely for the attorney is creating the attorney-client relationship and determining the fees to be charged for the legal services to be provided. A paralegal shall never make the independent decision on whether or not to represent a potential client. While the paralegal may be utilized to draft retainer agreements and convey certain information to the client regarding fees, this information should all come directly from the attorney. An attorney must maintain a direct relationship with all clients and must use independent professional judgment.
While attorneys must be mindful of the foregoing, there are many benefits to utilizing a paralegal in law practices. Paralegals allow the attorney to be more efficient which leads to the attorney being more effective. So if utilization of paralegals is a part of an attorney’s practice, then (s)he should continue to use paralegals. The attorney must be aware of the current caselaw, Rules Regulating The Florida Bar, Florida Statutes, and Florida Bar Ethics Opinions as they relate to the unauthorized practice of law as they would with any other legal issue.