Avoid the Unauthorized Practice of Law

Katherine A. Fox and Carol A. Stewart

Would it surprise you to learn that licensed attorneys can engage in the unauthorized practice of law? Like most practicing Utah attorneys, you undoubtedly have a prototype example in mind when you encounter the phrase "unauthorized practice of law." The example is probably much like a recently decided Utah Supreme Court case, Utah State Bar v. Benton Petersen, No. 950551 (Utah Apr. 25, 1997). Petersen, a paralegal correspondence school graduate, set up shop in Manti, where he proceeded to, among other things, assist clients with their divorces. In one case, he waived child support on behalf of the children and instead inserted a monthly $5 "remembrance fee." He also pleaded nolo contendre in a cosmetic relations default action. So, what does the unauthorized practice of law have to do with you as a licensed attorney, other than perhaps the occasion when you inherit a legal mess to clean up?

As practicing attorneys you should recognize the situation in which you may be assisting or engaging in the unauthorized practice of law. This article addresses two areas in which an attorney may be violating Utah Code section 78-51-25, which prohibits the unauthorized practice of law, and/or may be violating Rule 5.5 of the Utah Rules of Professional Conduct.

A license to practice law is not granted irrevocably. As an attorney, you have continuing duties and responsibilities which must be fulfilled to ensure that you remain in good standing and on active status with the Bar. There are several ways that a "licensed" attorney could be placed on an "inactive status" which would prohibit the attorney from practicing law.

First, and perhaps most commonly thought about (and read about in the Utah Bar Journal), is a disciplinary suspension. Here, the Utah Supreme Court orders an attorney's license suspended or revoked if he or she is disbarred at the conclusion of disciplinary proceedings. Changes in an attorney's status as the result of discipline most commonly result from a serious violation of the Rules of Professional Conduct. Discipline resulting in a change of status may also arise when a Utah attorney admitted in another state is publicly disciplined by that other state. Under Rule 22 of the Rules of Lawyer Discipline and Disability, the Office of Attorney Discipline is charged with commencing proceedings to determine whether the equivalent discipline should be imposed in this jurisdiction, as well.

Similarly, an attorney may face a change in status if he or she is convicted of a crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Rule 19 of the Rules of Lawyer Discipline when a lawyer is convicted of such a crime. These proceedings often result in suspension or disbarment, which, of course, change an attorney’s status.

A second way to an attorney’s status can be changed is when an attorney chooses to “go inactive.” In this situation, an attorney is voluntarily placed on inactive status. Attorneys commonly request this change of status when they leave the jurisdiction for an extended period, or cease practicing law altogether.

A third reason for a change in an attorney’s status is when an attorney is suspended for failing not pay Bar dues and/or to comply with MCLE requirements. In that case, the attorney’s name is forwarded to the Supreme Court. The Supreme Court issues an order suspending the attorney until such time as the particular requirement is met.

A suspension or this type has the same force and effect as a disciplinary suspension. That is, an attorney is prohibited from practicing law until the suspension is lifted. The Office of Attorney Discipline is receiving an increasing number of reports of attorneys continuing to practice while on such a suspension. If the Office of Attorney Discipline receives such a report, it conducts an investigation into whether the attorney is indeed practicing while on suspension in violation of Rule 5.5(a) of the Rules of Professional Conduct. If the attorney is found to have violated this Rule, discipline may result.

A licensed attorney may also commit an ethics violation if that attorney assists a noon-licensed person in activity that constitutes the unauthorized practice of law. In the Petersen case cited above, the Supreme Court offered the following guidance in determining what constitutes the “practice of law.”

Although “the practice of law” has not been exactly defined, an “ordinary reader” would understand that certain services, when performed on someone else’s behalf, are part of such practice. Such service would include not only appearing in court, but also drafting complaints, drafting or negotiating contracts, drafting wills, counseling or giving advice on legal matters, and may other things.

Id., slip op. at 6.

Pursuant to Rules 5.3 and 5.5(b) of the Rues of Professional Conduct, an attorney is responsible for the conduct of non-lawyer assistants employed by or associated with that attorney. Thus, if an attorney improperly utilized or supervised a non-lawyer assistant, that attorney is subject to discipline.

A juris doctor degree is merely that: an academic credential. Until a person passes the Bar admissions examination, has been duly worn by the Supreme Court, and is licenses, he or she is not authorized to practice law. Such a person may not have his or her name inserted on a pleadings caption, may not sign pleadings, may not be listed on firm letterhead or in advertisements or listings, may not negotiate on behalf of a firm’s client either by telephone conversation or signing a letter, may not defend or take depositions, and may not appear in court. In short, the unlicenced person may not practice law in the interim period between law school graduation and being licensed, even though he or she may be associated with your firm. They may, of course, act as a law clerk or a paralegal where a license Utah attorney is supervising them.

But what about the experiences out-of-state licensed attorney who has been practicing elsewhere, perhaps for a number of years, and who moves to Utah and becomes associated with your firm? Surely the Bar does not expect that person in the interim between taking the admissions examination and being licensed to function as a mere paralegal or law clerk? The simple answer is “yes, we do.” Jurisdictions confer the right to practice law, not academic credential and experience. If the latter were the case, paralegals such as Petersen arguably might qualify to practice law.

But wait, you say, how about that out-of-state attorney filing a few (or more) pro hac vice motions in that interim period? That rule permits attorneys who are licensed elsewhere to practice within Utah, doesn’t it? That way, the attorney could function in our firm as a “real” lawyer during the interim period. The simple answer is “no.” Although the pro hac vice rule found at Rule 40(b), Utah Rules of Appellate Procedure,1 sketchy, as are may other rules, the details can be discovered in case law. The rule was designated to permit a non-resident licensed attorney the opportunity to appear in the occasional matter within our state borders. It was not intended as a device for out-of-state attorneys to cross state lines and regularly practice here without Utah licensure, nor was it enacted to permit out-of-state attorneys to move here and begin practicing before becoming licensed.

The possible consequences for violating ethics rules and state law are unpleasant for both the Utah-licensed attorney and for the non-licensed attorney and for the non-licensed person who has associated himself or herself with the former. The unlicenced person or out-of-state attorney who has applied for admission may find himself or herself being investigated by the Bar’s Office of Attorney Discipline, the Unauthorized Practice of Law Committee. Or the Bar’s General Counsel. Once an investigation is complete and if a violation is substantiated, the matter is referred to the Bar’s Character and Fitness Committee. That committee is charged with ensuring that every applicant for admission to the Utah State Bar possesses the requisite moral character and fitness to practice law. A hearing may be held on the matter, and if the violations warrant it, the committee will deny admission and recommend to the Board of Bar Commissioners that certification to the Supreme Court be denied. Even after an application has passed the admissions examination and awaits the oath of office and licensure, the Board may decide not to certify. If the list of name of passing applicants already has been certified to the Court, the offending applicant’s name may be withdrawn.

The Bar is investigating several of these types of allegations of misconduct. In one case, an attorney Bar applicant who had not yet been licensed to practice in Utah was employed by a law firm, engaged in settlement negotiations, and defended depositions in cases were pro hac vice admission had been intermittently sought. In another case, an attorney Bar applicant who had not yet been licensed to practice in Utah was employed by a law firm which sent him (unaccompanied) to represent its client, at city council meetings. That person gave legal advice to the city during the course of the meeting.

Issues to be addressed in the investigation of these types of cases included whether the law firm’s clients and opposing counsel were advised of the non-lawyer’s actual status and whether there were misrepresentations made to anyone regarding the non-lawyer’s status. The potential for miscommunication and misunderstanding in these situations is obvious. If misrepresentations were made, the disciplinary sanctions for license Utah attorneys could be served. There may be other consequences for those not yet admitted to practice law.

As draconian as this discussion may appear, the majority of Utah attorneys are diligent and never have these types of problems. Within the small number that encounter problems, we find that violations may be unintentional or minor in nature. The Bar exists in part to assist you in having a successful and satisfying experience practicing law. If you think you may have had or are having a problem in this area of law, please contact us. Early intervention and cooperation go a long way toward resolving these issues. So please, contact us voluntarily so we can work together before wee need to contact you.

Ed. Note: Katherine Fox is General Counsel of the Utah State Bar. Until recently, Carol Stewart was Deputy Counsel for the Office of Professional Conduct of the Utah State Bar..

Footnotes

1. There is no comparable pro hac vice “rule” in the Utah Rules of Civil Procedure.