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"Legal Advice For Sale: Protecting Lawyers And Laypersons Against The Unauthorized Practice Of Law" by Nathan Perry

Legal Advice For Sale: Protecting Lawyers And Laypersons Against The Unauthorized Practice Of Law

by Nathan Perry

Attorneys are interesting. We pontificate on the most banal topics at length to friends not of our brotherhood. Perhaps as a result of this constant barrage of information, there are many times when friends will call upon us to give them advice regarding a matter because we have the good fortune of seeming intelligent to them and worthy of bestowing advice. As students, we should always protect ourselves by not saying anything that may like "legal advice." Once we satisfy all the admission requirements and become practicing lawyers, we should assist in preventing the unauthorized practice of law. See generally N.Y. CODE OF PROF'L RESPONSIBILITY Canon 3.

One of the many provisions in New York State law restricting the practice of law to lawyers is found in the New York Judiciary Law § 478, which provides that "[i]t shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state . . . " N.Y. JUD. LAW §478 (CONSOL. 2011). This section also prohibits any person from giving the impression that he or she is a practicing attorney. Id.

There are two exceptions for law students. The first exception exempts law students "acting under the supervision of a legal aid organization" approved by the appellate division of the supreme court if the students have either completed two semesters of law school or graduated and are waiting for bar exam results. Id. The second exception exempts law students "acting under the supervision of the state or ... or any officer or agency of the state...." who have completed two semester of law school or have graduated that are waiting for results from the bar exam. Id. For example, this allows for a District Attorney to appoint recent graduates from law school provided that they are assigned solely with carefully confined duties. People v. Carter, 566 N.E.2d 119, 125 (N.Y. 1990) (Titone, J., dissenting). See also People v. Jacobs, 844 N.E.2d 1126, 1134 (N.Y. 2005) (Smith, J., dissenting) ("Under practice orders, law students and law school graduates can gain invaluable experience regarding criminal matters. However, the experience received by a law school student or graduate cannot be weighed against or override the rights of the defendant, the person whose liberty is at risk in a criminal proceeding").

An individual can also appear in his or her own behalf if they are the only party exposed to possible harm rather than acting in behalf of another person. N.Y. C.P.L.R. 321(a) (CONSOL. 2011); NEW YORK CODE OF PROF'L RESPONSIBILITY, EC 3-7. If a court determines that a person has violated §478, they will be guilty of a misdemeanor. N.Y. JUD. LAW §485 (CONSOL. 2011).

The key issue here, of course, is defining precisely what "practicing law" entails. In People v. Alfani, the New York State Court of Appeals found that an individual representing himself as a practicing attorney without being licensed violated the prohibition against the unauthorized practice of law. 125 N.E. 671 (N.Y. 1919). "Likewise, when legal documents are prepared for a layman by a person in the business of preparing such documents, that person is practicing law whether the documents be prepared in conformity with the law of New York or any other law." In re Roel, 144 N.E.2d 24, 26 (N.Y. 1957). The court found in El Gemayal v. Seaman that Section 478 contemplates practicing foreign law in New York as well as New York law, and also covers giving legal advice to particular clients and the act of appearing in court. El Gemayal, 533 N.E.2d at 248 (N.Y. 1988). "Eliciting testimony from witnesses and giving legal instructions unquestionably constitute the practice of law." People v. Carter, 566 N.E.2d 119, 125 (N.Y. 1990) (Titone, J., dissenting).

Often, lawyers must cross geographic boundaries. This presents problems for attorneys not licensed in a particular jurisdiction when they begin to give advice to clients in that jurisdiction. If this happens and a suit is brought against them, the defendant may be able to defend themselves by arguing that their involvement (if in New York State) amounted to nothing more that "customary and innocuous practices." Spivak v. Sachs, 211 N.E.2d 329, 331 (N.Y. 1965). The court found that the activities performed by the offending attorney in Spivak - reviewing various drafts of a separation agreement, opining which jurisdiction was proper, suggesting a change in counsel - plainly constituted the practice of law, but it also recognized that it could not "penalize every instance in which an attorney from another State comes into our State for conferences or negotiations relating to a New York client and a transaction somehow tied to New York." Id.

This suggests that attorneys who travel through many jurisdictions would not be guilty of the unauthorized practice of law simply for speaking to a client in a jurisdiction in which they are not registered. Indeed, forcing courts to deal with every single instance of this type of counseling would likely prove to be a tremendous strain on the legal system.

One of the more recent cases from the New York Court of Appeals involving the unauthorized practice of law and multi-state litigation is New York Criminal and Civil Courts Bar Ass'n v. Jacoby, 460 N.E.2d 1325 (N.Y. 1984). The Criminal and Civil Courts Bar Association brought an action against the firm of "Jacoby and Myers," claiming that since neither Jacoby nor Myers were licensed in New York, it was "a factual misrepresentation that both of the name partners are available to render legal services." Jacoby, 460 N.E.2d at 1327. The court found this unpersuasive and found that using surnames and nothing more did not constitute holding oneself out to be a lawyer authorized to practice law in New York. Id. "[T]he firm is an institutional description and its use constitutes no representation that anyone bearing a surname corresponding to the names in the firm title is available to render professional services." Id.

Another issue that has concerned courts arises when a legal service provides forms for citizens to fill out. The problem becomes even more knotty if the service helps the citizens fill out the forms for a small fee, a situation that is especially prevalent in bankruptcy cases where debtors must fill out a wide range of forms to list their property and other assets. For instance, "We The People," a legal document preparation service with offices in multiple locations, has faced its share of litigation where it defends itself against charges of practicing law without being authorized. See, e.g., Martini v. We The People Forms & Serv. Ctrs., USA, Inc. (In re Barcelo), No. 03-22074 (ESS), 2005 Bankr. LEXIS 2148 (Bankr. E.D.N.Y. Oct. 24, 2005). The Court of Appeals has adopted the rule that "drawing a single document for a small fee or no fee is not law practice." See Spivak, 211 N.E.2d at 331 (quoting People v. Title Guar. & Trust Co., 125 N.E. 666 (N.Y. 1919), People v. Alfani, 125 N.E. 671 (N.Y. 1919), and People v. Goldsmith, 164 N.E. 593 (N.Y. 1928)).

The holding in Spivak certainly seems to support the proposition that drawing up anything more than a couple documents would violate Section 478. However, document providers continue to support litigants without violating the prohibition against the unauthorized practice of law. See Alabama Lawsuit Against LegalZoom Dismissed: LegalZoom Defends Right of Americans to Obtain Affordable Legal Protection, GLOBENEWSWIRE, Feb. 1, 2011, http://www.globenewswire.com/newsroom/news.html?d=212411 (last visited August 10, 2011).

An area of the law that has seen little litigation in New York deals with law clerks and legal secretaries. Even in other jurisdictions, the case law in this area seems to be minute. In New York, attorneys have the charge to not aid the unauthorized practice of law. N.Y. CODE OF PROF'L RESPONSIBILITY DR 3-101 (A). At some future juncture, courts in New York will likely face a case where a law clerk arguably practiced law.
In jurisdictions that have considered the question, the work will not constitute the practice of law if it is primarily ministerial and preparatory in nature. See People v. Alexander, 202 N.E.2d 841 (Ill. App. Ct. 1964); see also Ferris v. Snively, 19 P.2d 942 (Wash. 1933). In Alexander, the defendant was a law clerk who had prepared "an order spreading of record the fact that after a trial in the case of Ryan v. Monson the jury had disagreed and continuing the case until October 22 after appearing in court to tell the judge that the counsel of record was engaged in a trial in federal court. 202 N.E.2d at 842-43.

The Alexander court considered whether either act by the clerk constituted "the practice of law." Preparing the order, according to the court, was not practicing law, as it was a "ministerial act for the benefit of the court and a mere recordation of what had transpired." Id. at 843. As to appearing in court, the judge seemed uneasy to allow law clerks to appraise courts of their employers' whereabouts, but decided that it was better to allow them to do so rather than string cases along endlessly where the judge has no information regarding the attorney's whereabouts. Id. at 844.

In a California case, Crawford v. State Bar of California, the court stressed the importance of the law clerks position to help prepare the attorney rather than independently undertaking whole issues and discussing them with clients:

"The record shows that Howard acted independently of petitioner both in regard to matters involving legal advice, and to matters that can be characterized as such because performed in a law office, and that petitioner merely had knowledge of the existence of them but not of their progress or disposition." 355 P.2d 490, 495 (Cal. 1960).

In those instances where clerks help practicing attorneys, they should not provide the bulk of legal services but merely prepare the attorney to provide those services, aiding the attorney in the process.

These cases all suggest a certain uneasiness regarding what courts should view as the unauthorized practice of law. What the court in Ferris v. Snively said regarding law clerks possibly applies with equal force to the practice of law: "The line of demarcation as to where their work begins and where it ends cannot always be drawn with absolute distinction or accuracy." 19 P.2d at 945. However, lawyers can still take counsel from these cases to decide whether they know an individual who has potentially engaged in the practice of law illegally.

Knowing how these rules apply can help protect the reputation of lawyers if future attorneys can prevent non-lawyers from practicing law. Furthermore, knowing where the boundaries are can also guide individuals in how they utilize their law clerks and other legal assistants. As drawn from a familiar truism to which all lawyers should take heed: If it sounds like legal advice and looks like legal advice, it must be legal advice.

Nathan Perry is a fourth-year student at Albany Law School pursuing a JD/MBA from Albany Law School and SUNY Albany. His main focus areas in law school have been Bankruptcy Law and Copyright Law. He currently interns for the U.S. Bankruptcy Court of the Northern District of New York. He hopes to remain in New York State following law school.

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This page contains a single entry from the blog posted on August 15, 2011 8:18 PM.

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