Unauthorized Practice of Law
While evaluating the basic comprehension of the notion of law practice, it is possible to draw sense from aspects that fundamentally involve provision of legal advice and assisting clients in drafting legal documents, representing them during court proceedings as well as legal negotiations or legal intercessions which include lawsuits. This evaluation may also include expert services that are offered by barristers, lawyers, solicitors, notaries in civil law and law attorneys. Nevertheless, law practice concept and other occupations that involve representation of customers in various situations by agents overlap.
These professionals can include the agents in real estate firms, insurance agents, bankers and those in the accounting industry. Additionally, there exist several services that traditionally were provided by lawyers as well as worker paralegals. Some of these services are now offered by the legal document assistants (LDAs). However, every state is responsible for limiting or regulating the law practice concept in the US. Therefore, there are variations in the definitions of law practice (American Bar Association, 2003).
“Unauthorized practice of law” as a phrase is usually considered as a variable. In several instances, it is considered conclusive and tautological. Thus, it is a non-lawyer person doing a lawyer’s or a counselor’s work in order to get monetary compensation (Garner, 2004). It is agreeable to some levels that practicing law without authorization entails appearing in a court that has been constituted lawfully in the proceedings of a legal case while representing a client especially when one needs monetary compensation (Garner, 2004).
Nevertheless, there are relevant variations that can apply in this definition depending on conflicting regulation and interpretation especially when defining the breadth and extent of the prohibiting act of law practice. According to the definition of the Black’s Law Dictionary, practicing law without authorization is law practice by an individual who is typically not a lawyer, without licensing and admission which would allow them to practice law within a specific jurisdiction (Garner 2004, pp.1191-1192). Therefore, these variables may be used while determining whether a non-licensed person’s action comprises an illegal or legal law practice.
Application to a Case Study
Fact of the Case
Mr. Stan Smith makes a call to Polly Paralegal, his friend for whom he sends a message inquiring this, ‘is adultery one of the divorce grounds in North Carolina?’ Later in the day, Mrs. Stan Smith makes a call to Polly Paralegal leaving a message that inquires, ‘Are there divorce grounds in North Carolina? I have just realized that Stan has committed adultery.’
Questions that need answers
- If the question of Mr. Smith is answered by Polly Paralegal, does that amount to unauthorized practice of law?
- If the question of Mrs. Smith is answered by Polly Paralegal, will that amount to unauthorized practice of law
Evaluating these scenarios, it ought to be noted that Mrs. and Mr. Smith reside in North Carolina. This state is situated in the United States of America. The questions aim at determining the situations under which advice of Polly Paralegal to Mrs. or Mr. Smith may amount to unauthorized practice of law. Therefore, it is important to give a clear and precise definition of “Unauthorized Practice of Law” or the meaning of law practice in North Carolina (American Bar Association 2013). Essentially, this will determine the scope within which this action constitutes a contravention of the established law or practicing law illegally in North Carolina which is a state in the United States rather than in other states since the definition of law practice differs between states.
Just like in other states in the US, North Carolina has its own statute which defines unauthorized practice of law. The provision of the North Carolina’s law statute is that:
“It shall be unlawful for any person or association of persons, except active members of the Bar of the State of North Carolina admitted and licensed to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body, including the North Carolina Industrial Commission, or the Utilities Commission; … to maintain, conduct or defend the same,… or, by word, sign, letter or advertisement, to hold out himself, or themselves, as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor-at-law, or in furnishing the services of a lawyer or lawyers and it shall be unlawful [for any such unlicensed person] to give legal advice or counsel, perform for or furnish to another legal services, or to prepare directly or through another person, firm or corporation any will or testamentary disposition, or instrument of trust, or to organize any corporations or prepare for another person, firm or corporation, any other legal document (N.C. Gen. Stat. § 84-4 (2005)).”
The definition of “practice of law” by the General Statutes of North Carolina includes:
- Aiding in the preparation or preparation of mortgages, deeds, trust instruments, wills, contracts and legal documents which secure legal rights (N.C.G.S 84-2.2),
- Helping in the preparation or preparation of orders or petitions in a court proceeding or probate (N.C.G.S 84-2.1),
- Passing or abstracting on titles (N.C.G.S 84-2.1),
- Filing and preparation of petitions to be used in the court which include administrative tribunals as well as other quasi-judicial and judicial bodies (N.C.G.S 84-2.1),
- Helping with counsel, advice or otherwise with legal work (N.C.G.S 84-2.1).
This excerpt clearly indicates that advice that qualifies to be an act of unauthorized practice of law or UPL would recommend or explain the action that needs legal judgment as well as one that affects legal obligation or right of one of the involved parties. Mr. Smith wants Polly Paralegal to offer a more general advice. The aim of Mr. Smith is to know what the legal document states and this does not need legal interpretation. Essentially, the question requires a reference to the governing laws of North Carolina. These are statutes that already exist in the state. Therefore, the advice does not have legal impact on Mr. or Ms. Smith’s rights. Actually, what Mr. Smith wants to know may be categorized as general knowledge.
In contrast, Mrs. Smith needs advice that needs legal interpretation. This has the potential of affecting the legal obligations or rights of Mr. Smith who is her husband. In reference to the question, her interest is to file a divorce against Mr. Smith on the basis of committing adultery if Polly Paralegal confirms the quest. Thus, this indicates that there is a possibility of filing a case which is likely to affect Mr. Smith negatively. Therefore, if Mrs. Smith gets advice from Polly Paralegal, he will have participated in unauthorized practice of law since it involves conveyancing. This is illegal according to the definition of the Supreme Court of North Carolina in In re Duncan Case (In re Duncan, 83 S.C. 186, 65 S.E. 2010).
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Garner, B. A. (2004). Black’s law dictionary. Texas: West Publishing Co.
American Bar Association. (2013, January 7). “State Definitions of the Practice of Law.” Retrieved February 02, 2014 from http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf
In re Duncan, 83 S.C. 186, 65 S.E. 2010.
N.C. Gen. Stat. § 84-4 (2005).