Unauthorized Practice of Law. Angie L. Ordway, Staff Attorney Indiana Supreme Court Disciplinary Commission

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1 Unauthorized Practice of Law Angie L. Ordway, Staff Attorney Indiana Supreme Court Disciplinary Commission I. Practice of Law Defined (Somewhat) The Indiana Supreme Court has not given a precise definition of the practice of law, citing the ambiguity inherent in the concept: Although the practice of law in one of the oldest and most honored professions, the law itself is by no means an absolute science, the practice of which can be accurately and unequivocally defined.... There is a twilight zone between the area of activity which is clearly permitted to the layman, and that which is denied him. State v. Indiana Real Estate Assoc., 191 N.E.2d 711, 714 (Ind. 1963). Yet, several opinions provide guidance as to the boundaries within which the practice of law resides. The Supreme Court has described the practice of law very broadly as the giving of legal advice to a client and the placing of oneself in the very sensitive relationship involving the confidence of the client and the management of his affairs. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602, 605 (Ind. 2007). Merely entering into an attorney-client relationship, wherein one undertakes to minister to the legal problems of another, is the practice of law. Matter of Perrello, 386 N.E.2d 174, 179 (Ind. 1979). The Supreme Court has recognized that legal advice is a broad category, and has attempted to confine its limits: Many essentially routine tasks have some legal component. Even telling a driver to slow down entails knowledge that the law imposes speed limits and, in some sense, is giving legal advice. Directing or acting on matters of general knowledge, even if knowledge of a rule of law, does not constitute the practice of law. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602, 607 (Ind. 2007). Pro bono legal work is still legal work, and whether or not someone is compensated for a service does not convert an otherwise proper activity by a layperson into the practice of law. Id. at

2 II. Importance of Limiting Law Practice to Licensed Lawyers The Court's authority to set standards for and to supervise the practice of law emanates from the need to protect the public from those who are not properly licensed or otherwise qualified to act as attorneys. See State ex rel. Disciplinary Comm'n v. Owen, 486 N.E.2d 1012, 1014 (Ind. 1986). In a nutshell, licensing standards help ensure that the public engages someone with the competence and skill to successfully resolve their legal matter. But further, lawyers are a step above their unlicensed counterparts because they are held to ethical standards. The Rules of Professional Conduct embody time-tested ethical precepts that protect the public and set lawyers apart from vendors of most other goods and services. As the Preamble states: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. An unlicensed person is not subject to the same responsibility to act honorably. This applies not only to individuals, but carries forward on a wider basis. Fidelity to the Rules of Professional Conduct must permeate the business structure of any authorized vendor of legal services. A lawyer must not only act competently, diligently and loyally, but also assure that ancillary services comport with the lawyer s professional responsibilities. Prof. Cond. R Lawyers provide their subordinates and non-lawyer staff direction and guidance to ensure that ethical obligations are honored in all aspects of the firm s work. Practices typical in consumer transactions are often incompatible with professional ethics. For example, in-person solicitation is not permitted under the Rules of Professional Conduct. See Prof. Cond. R. 7.3(a). The responsibilities accepted by the legal community and policed by the Supreme Court and its Disciplinary Commission imbue individual attorneys with authority and trustworthiness that can be abused by nonlawyers without the same ethical obligations. III. Enforcement Procedure and Jurisdiction A. Authority of the Indiana Supreme Court The Indiana Constitution provides the Supreme Court with original jurisdiction, not only to admit and discipline lawyers, but over the unauthorized practice of law. It states: The Supreme Court shall have no original jurisdiction except in admission to the practice of law; discipline or disbarment of those admitted; the unauthorized practice of law; discipline, removal and retirement of justices and judges; supervision of the exercise of jurisdiction by the other courts of the State; and issuance of writs necessary or appropriate in aid of its jurisdiction. Ind. Const. art By statute, the Supreme Court s jurisdiction to stop the unauthorized practice of law is also exclusive: The Supreme Court has exclusive jurisdiction to issue restraining orders and injunctions in all cases involving the unauthorized practice of the law 2

3 under rules and regulations as the Supreme Court may prescribe. Ind. Code (b)(2). The Supreme Court has exercised its jurisdiction in declaring unconstitutional statutes which attempt to allow lay people to practice law. Professional Adjusters, Inc. v. Tandon, 433 N.E.2d 779 (Ind. 1982) (statute allowing independent public insurance adjusters unconstitutional). B. Admission and Discipline Rule 24 Injunction & Disgorgement In exercise of its original and exclusive jurisdiction over the practice of law, the Supreme Court has promulgated Admission and Discipline Rule 24, setting forth a procedure for regulating unauthorized practice of law within the state. Admission and Discipline Rule 24 provides joint standing between the Indiana Supreme Court Disciplinary Commission, the Indiana Attorney General, and the Indiana State Bar Association. Under this procedure, those three authorized entities may file a verified petition to enjoin the unauthorized practice of law, as a relator, in the name of the State of Indiana. A respondent may respond by filing a verified return specifically admitting or denying the allegations in the petition, and alleging new facts in mitigation or defense. The Court may then decide the case based solely on the petition and the return, or it will appoint a commissioner to hear evidence and submit findings of fact to the Court. The Rule provides that the losing party will bear the costs and expenses of the proceeding. The Court may also, as part of its injunctive authority, order disgorgement of any fees collected by the respondent for unauthorized services. State ex rel. Indiana State Bar Assn v. Northouse, 848 N.E.2d 668, 674 (Ind. 2006). C. Criminal Statute Unauthorized practice of law is also subject to criminal prosecution as a Class B misdemeanor. Ind. Code The statute reads: A person who: (1) professes to be a practicing attorney; (2) conducts the trial of a case in a court in Indiana; or (3) engages in the business of a practicing lawyer; without first having been admitted as an attorney by the supreme court commits a Class B misdemeanor. County prosecutors may bring criminal actions against individuals engaging in unauthorized practice of law under this statute, as well as criminal statutes dealing with fraud and deception. In practice, county prosecutors will often bring charges in cases involving more egregious circumstances, such as those involving theft and check deception by nonlawyers posing as lawyers. The burden of proof to show admission to practice is on the defendant, not the state. Ind. Code D. Consumer Fraud The Indiana Attorney General also has the capability of prosecuting unauthorized practice of law under the Deceptive Consumer Sales Act, which applies to anyone who advertises or provides consumer services without a permit or license required by law. Ind. Code (a)(1). Enforcement under this statute has the advantage of a relatively speedy 3

4 resolution. Restitution is available to consumers under this method, and civil penalties of up to $5,000 per violation apply. Ind. Code The Federal Trade Commission also has jurisdiction to prosecute consumer fraud, which could include unauthorized practice of law. 15 U.S.C. 45(a)(1). E. Contempt The Supreme Court has inherent and statutory authority to punish contempt by fine and imprisonment. Ind. Code ; Contempt of Mittower, 693 N.E.2d 555, 559 (Ind. 1998). Contempt proceedings are used to deal with unauthorized practice by lawyers who have been disbarred, suspended, or who have resigned pending discipline. IV. Unauthorized Practice of Law for Nonlawyers A. Paralegals and Other Staff Lawyers have responsibility to ensure that the conduct of their nonlawyer staff is compatible with the lawyer s professional obligations. Prof. Cond. R. 5.3(a). A lawyer will be held responsible for the misconduct of nonlawyer staff if they order or ratify the conduct, or if they learn of the conduct and fail to take reasonable remedial action. Prof. Cond. R. 5.3(b). Rule 5.3 applies not only to nonlawyer assistants employed by a lawyer or a law firm, but also any nonlawyer retained by or associated with a lawyer. Thus, this rule could be read to extend to outside vendors as well. The Supreme Court has promulgated guidelines with respect to paralegals and nonlawyer assistants with which every lawyer should be familiar. They are found at the end of the Rules of Professional Conduct under the title Use of Non-Lawyer Assistants and they provide guidance to the contours of a lawyer s supervisory responsibility under Rule 5.3. Nonlawyers can provide services only under the direct supervision of a licensed lawyer. Guideline 9.1. Independent paralegals are not allowed to set up their own offices and solicit clients to provide legal services. Id. A lawyer may delegate any task that would normally be performed by a lawyer, provided the lawyer maintains responsibility for the work product and with a few important exceptions. Guideline 9.2. As those express exceptions, first, a lawyer may not delegate responsibility for establishing an attorney-client relationship. Guideline 9.3(a). Second, the amount of the fee to be charged a client must be established by an attorney. Guideline 9.3(b). This guideline probably leaves room for a nonlawyer assistant to communicate a fee to a new client, based on a predetermined fee schedule used by the office, but care should be exercised in this regard. Third, a lawyer may not delegate responsibility for a legal opinion rendered to a client. Guideline 9.3(c). A lawyer must ensure that clients, courts and other lawyers know their nonlawyer assistants are not licensed to practice law. Guideline 9.4. They may be identified on letterhead and business cards. Guideline 9.5. However, their title should also be delineated to avoid confusion as to their licensing status. A lawyer may charge for the services of their assistants 4

5 and compensate them based on their value, or the quantity and quality of their work, but they may not share legal fees, be paid for referrals, or be paid contingent to the law practice s profit. Guidelines A lawyer should see that their assistants perform appropriate continuing education and pro bono work. Guideline 9.9. B. Realtors & Real Estate Real estate brokers and agents may select fill out the blanks in pre-drafted forms prepared by attorneys, such as listing agreements, earnest money contracts, offers to purchase, options, affidavits, purchase agreements, and short form leases, without it being considered the practice of law. State v. Indiana Real Estate Assoc., 191 N.E.2d 711 (Ind. 1963). However, brokers and agents would not be permitted to give advice as to the legal effects of such documents, nor to deal with more complicated matters. Id. Nonlawyers may prepare mortgage documents, and lenders who charge document preparation fees do not necessarily engage in the unauthorized practice of law. Charter One Mortgage Corp. v. Condra, 865 N.E.2d 602 (Ind. 2007); Miller v. Vance, 463 N.E.2d 250 (Ind. 1984). However, lay people cannot give advice or opinions as to the legal effects of the instrument prepared. Id. C. Notario Fraud Fraud by nonlawyers targeting people with language or cultural barriers is a widely recognized problem. This problem is amplified by the fact that the direct English to Spanish translation of notary public is notario publico, which in Mexico and other Latin American countries indicates an official who is an experienced lawyer who has passed additional rigorous examinations. State ex rel. Ind. St. Bar Assoc. v. Diaz, 838 N.E.2d 433 (Ind. 2005). In the Diaz case, a Spanish-speaking woman advertised herself as a Notario Publico and offered immigration services. She was enjoined by the Supreme Court from practicing law in this manner. Unauthorized practice in the immigration area is especially damaging because incompetent representation may [result in] the lost opportunity for permanent residence, deportation, and perhaps even death for unsuccessful asylum seekers. Id. at 443. People harmed by such fraud are not only less likely to be aware of avenues for redress, but also are more likely to be reticent to engage with authorities to report such fraud. This area continues to be a problem and enforcement by the attorney general and the disciplinary commission remains under way. D. Consumer Services A corporation cannot practice law, and cannot offer legal services in the marketplace. A wide variety of services offered by nonlawyer enterprises may be the unauthorized practice of law, such as estate planning, tax planning, mortgage foreclosure and debt settlement assistance, etc. Particularly when such unauthorized practice of law is performed in an incompetent manner, at a more costly rate than would be charged by a lawyer, the Supreme Court will act to enjoin such enterprises and order disgorgement of fees to which the nonlawyer was never entitled. 5

6 An important case was State ex rel. Indiana State Bar Association v. United Financial Services Corporation, 926 N.E.2d 8 (Ind. 2010). United Financial Services Corporation ( UFSC ) primarily sold annuities and financial instruments, but also engaged in offering estate plans to consumers. They would solicit consumers with deceptive tactics about the perils of probate court, and would often target those without assets that would necessitate either probate or the living trust plans they sold. A nonlawyer would visit the consumer in their home, advise them to purchase a living trust plan, and collect sensitive financial information. They would take the information back to the office and prepare form documents. Lawyers employed in-house by UFSC would then review the documents, call the customer to confirm their wishes, and sign off on the plan. A nonlawyer would deliver the documents to the customer for signing. UFSC (with access to the financial information collected) might then leverage this opening to sell their financial products to the customer to fund the trust. In several instances, UFSC s customers received incompetent services which damaged their financial position. The Supreme Court found their practices to be the unauthorized practice of law and ordered disgorgement of several years of fees collected. E. Lay Representatives in Administrative Hearings There are several areas in which lay representatives are statutorily authorized to provide some service to those appearing before the body, such as tax representatives, and lay representatives in special education and employment hearings.. See State ex. Re. Ind. St. Bar Assoc. v. State Bd of Tax Comm rs, 714 N.E.2d 128 (Ind. 1999). Federal statutory and regulatory frameworks may also bear on a nonlawyer s ability to practice in the administrative realm. 6

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