Iowa Unauthorized Practice of Law:

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1 Note: Current to March 19, 2015 Iowa Unauthorized Practice of Law: (NOTE: The Unauthorized Practice of Law in Iowa is governed primarily by the Iowa Court Rules and the Iowa Rules of Professional Conduct.) Iowa Ct. R Commission on the Unauthorized Practice of Law. (1) There is created a commission for the abatement of the unauthorized practice of law, which shall be known as the Commission on the Unauthorized Practice of Law. This commission shall comprise seven lawyer members and two nonlawyer members who shall be appointed by the supreme court. The supreme court shall accept nominations for appointment to the commission from any association of lawyers which maintains an office within the state of Iowa or any attorney licensed in Iowa. The court shall designate annually one lawyer commission member to be the chair. Members shall serve no more than three three-year terms, and a member who has served three full terms shall not be eligible for reappointment. The commission shall receive complaints and make investigations with respect to the alleged unauthorized practice of law within this state. (2) The assistant director for boards and commissions of the office of professional regulation shall serve as the principal administrator for the commission on unauthorized practice of law. Wherever in this chapter a reference to the assistant director appears, it shall refer to the assistant director for boards and commissions of the office of professional regulation. 37.1(3) Commission expenses shall be paid from the disciplinary fee account of the client security fund. The chair, a nonlawyer member of the commission selected by the court, and the director of the office of professional regulation shall constitute the administrative committee of the commission. The administrative committee shall, annually on or before May 1, submit a budget to the supreme court for the next fiscal year. Iowa Ct. R Injunctions. (1) If the commission has reasonable cause to believe that any person who has not been admitted to practice law within this state is engaging in the practice of law or holding out to the public that the person is qualified to provide services constituting the practice of law in this state, the commission may file a verified complaint with the clerk of the district court in any county in which the unauthorized practice is alleged to have occurred. (2) The complaint shall be filed with the clerk of the district court, be given a docket number, and be captioned in the Iowa District Court for County. The commission shall be designated as the complainant. The respondent shall be named and designated as the respondent. The complaint shall be presented to the chief judge of the judicial district for entry of an order to be served on the respondent requiring that person to appear before the court and show cause why that person should not be enjoined from such activity. The show-cause hearing shall be held before the chief judge or another judge designated by the chief judge. (3) If it appears that the facts are incapable of being adequately developed at a summary hearing, the matter may be set for trial before that judge, who shall hear the evidence and make findings of fact and an appropriate dispositional order

2 Iowa Ct. R Unauthorized practice of non-admitted attorneys. If the commission makes a determination that any person who is admitted to practice in another jurisdiction but is not admitted to practice in this state has violated an injunction issued in compliance with rule 37.2, the commission shall report its findings to the office of professional regulation and the court may in its discretion use such information for purposes of admissions under Iowa Ct. R Who may practice as an attorney: Iowa Code Ann (West 2015) Admission to practice The power to admit persons to practice as attorneys and counselors in the courts of this state, or any of them, is vested exclusively in the supreme court which shall adopt and promulgate rules to carry out the intent and purpose of this article. Iowa R. Prof. Conduct 32:5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer s practice in a jurisdiction in which the lawyer is admitted to practice. (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. Iowa Ct. R Domestic violence and sexual assault victim counselors.

3 (1) In all proceedings under Iowa Code chapters 236 and 664A, a victim counselor, as defined in Iowa Code section A(1)(d), who is affiliated with a member domestic violence program of the Iowa Coalition Against Domestic Violence or a member of the sexual assault program of the Iowa Coalition Against Sexual Assault, and whose program has registered with the Iowa Coalition Against Domestic Violence or the Iowa Coalition Against Sexual Assault as providing services under this rule, shall be allowed to do the following: a. To distribute the pro se forms prescribed by the department of justice pursuant to Iowa Code section 236.3A and to assist victims of domestic violence in the preparation of such forms. b. To describe to victims the proceedings under chapters 236 and 664A and to assist them in their role as witnesses. c. To accompany victims throughout all stages of proceedings under Iowa Code chapters 236 and 664A. d. To attend all court proceedings, including sitting in chambers and at counsel table, to confer with the plaintiffs, and, at the judge s discretion, to address the court; however, domestic violence and sexual assault victim counselors shall not examine witnesses, make arguments to the court, or otherwise act in a representative capacity for victims of domestic violence. (2) The Iowa Coalition Against Domestic Violence and the Iowa Coalition Against Sexual Assault shall provide to the director of the office of professional regulation, on an annual basis and more frequently as necessary, an updated list of its member programs which perform the services provided under this rule. (3) When they assist victims of domestic violence as specified in this rule, domestic violence and sexual assault victim counselors are not engaged in the unauthorized practice of law. Iowa Ct. R Limited real estate practice. (1) Purpose. The purpose of this rule is to authorize nonlawyers to select, prepare, and complete certain legal documents incident to residential real estate transactions of four units or less. The preparation of documents beyond that authorized by this rule may constitute the unauthorized practice of law. (2) Scope of practice authorized. Except to the extent authorized by this rule, the selection, preparation, and completion of legal documents in connection with real estate transactions by nonlawyers constitutes the unauthorized practice of law unless the nonlawyer is acting on his or her own behalf as a buyer or seller. a. Upon written request of a buyer or seller, a nonlawyer may select, prepare, and complete form documents for use incident to a residential real estate transaction of four units or less. Such documents shall be limited to: (1) Purchase offers or purchase agreements, provided the parties are given written notice that these are binding legal documents and competent legal advice should be sought before signing; (2) Groundwater hazard statements; and (3) Declaration of value forms. Nonlawyers may not charge for preparation of the legal documents authorized by this rule. b. Nonlawyers shall not select, prepare or complete: (1) Deeds; (2) Real estate installment sales contracts; (3) Affidavits of identity or nonidentity; (4) Affidavits of payment of spousal or child support; or (5) Any other documents necessary to correct title problems or deficiencies Case Law: Johnson v. Purcell, 282 N.W. 741, (Iowa 1938) A statute vesting Supreme Court with exclusive power to admit persons to practice as attorneys does not give the court the implied power to enjoin unlicensed practitioners, since the Supreme Court does not have original jurisdiction to grant injunctive relief and such suit brought by members of the bar is not

4 related to admission or disbarment of an unlicensed practitioner. However, the District Court had jurisdiction of subject matter of suit by members of the bar to enjoin unlicensed practitioner from engaging in the practice of law. Bump v. Dist. Ct. of Polk County, 5 N.W.2d 914, 920 (Iowa 1942). It will be sufficient for present purposes to say that one is engaged in the practice of law when he, for a valuable consideration, engages in the business of advising persons, firms, associations, or corporations as to their rights under the law, or, appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or authorized to settle controversies, and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged, performs any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. Bump v. Barnett, 16 N.W.2d 579 (Iowa 1944). A collector who in conduct of his business took assignments of claims for collection, instituted and conducted actions thereon in justice and municipal courts, and employed counsel to represent him in other actions on assigned claims in district court and held himself out as one who could repossess automobiles and make collections, and contracted with creditors to collect accounts on a commission basis was engaged in the illegal practice of law and was properly enjoined. Comm. on Prof. Ethics and Conduct of the Iowa State B. Ass'n v. Baker, 492 N.W.2d 695 (Iowa 1992). Attorney's participation in living trust marketing scheme constitutes aiding in unauthorized practice of law, engaging in conflict of interest, and acceptance of improper referrals, warranting reprimand. Bergantzel v. Mlynarik, 619 N.W.2d 309 (Iowa 2000) Former private investigator engaged in practice of law when she represented insured in negotiation of a settlement of insured's underinsured motorist (UIM) claim; negotiation of settlement required exercise of professional judgment, and determining amount of any settlement demand or counteroffer required understanding of applicable tort and UIM principles, grasp of rules of evidence, and ability to evaluate strengths and weaknesses of insured's case vis a vis that of UIM carrier, even if investigator did not share her assessments or evaluations with insured. Iowa S. Ct. Commn. on Unauth. Prac. of L. v. A-1 Associates, Ltd., 623 N.W.2d 803, 807 (Iowa 2001) [T]he practice of law includes the obvious: representing another before the court. But the practice of law includes out-of-court services as well. For example, one who gives legal advice about a person's rights and obligations under the law is practicing law. Or one who prepares legal instruments affecting the rights of others is practicing law. Or one who approves the use of legal instruments affecting the rights of others is practicing law. Iowa S. Ct. Commn. on Unauth. Prac. of L. v. Sturgeon, 635 N.W.2d 679 (Iowa 2001). Form preparer was not forced to guess whether he was practicing law in his involvement in bankruptcy matters, and thus, rules governing unauthorized practice of law were not vague. The record established

5 he performed services that any reasonable person in his position would understand to be the practice of law; although practice of law necessarily defies precise definition. Preparer participated in the selection, preparation, and filing of the bankruptcy forms. rendered rendered to his clients, and drew on his prior legal experience in drafting an answer to a complaint. Iowa S. Ct. Atty. Disc. Bd. v. Netti, 797 N.W.2d 591, 604 (Iowa 2011) Activities that are considered the unauthorized practice of law under professional conduct rules, if performed by a suspended attorney, include but are not limited to the examination of abstracts, consummation of real estate transactions, preparation of deeds, buy and sell agreements, contracts, wills, and tax returns as well as any court appearance or counseling clients with regard to the same. Ethics Opinions: