Paralegals can avoid the unauthorized practice of law (UPL) by becoming familiar with their state’s rules. Rules against UPL specify that paralegals (or anyone who is not licensed to practice law) cannot provide attorney-client services to people, among other prohibitions. Unfortunately, the rules regulating UPL can often be confusing, sometimes resulting in unknowing breaches that can prove costly to a paralegal’s career.
While they teach paralegal ethics in most paralegal certificate programs, it is often difficult to apply those ethics until you are working as a paralegal in the real world. So what should you know about UPL rules as a paralegal, and how best can you avoid falling foul of these regulations as you go about your work?
What is UPL?
According to Black’s Law Dictionary, UPL is “the practice of law by a person, typically a non-lawyer, who has not been licensed or admitted to practice law in a given jurisdiction.” Essentially, by this definition, a person who is not licensed to practice law may not offer attorney services or get paid for them. This involves client representation, offering legal advice (solicited or otherwise), and drafting legal documents. All that being said, the ABA does not define “the practice of law.” Instead, each state has its own UPL regulations. The ABA has a state-by-state listing of them here.
Three Things Paralegals Should Avoid
1. Offering Legal Advice
The definition of legal advice as a concept tends to be vague and ambiguous. For example, what exactly can be considered legal advice? Sometimes, a sentence as simple as “you will win this case” may be considered legal advice. This happens frequently at those initial client intake meetings for personal injury paralegals.
Other times, it is more tricky to handle because it doesn’t happen in the office. For example, that family gathering when your aunt was recently in an automobile accident, and she’s wondering what you think her case might be worth.
Plan in advance for these types of situations because they will happen. Have a planned response, such as “I am not a lawyer, so I can’t answer that. But I’d be happy to refer you to a good lawyer I know who specializes in that.”
This rule takes on a new level of complexity as most Bar Associations define legal advice based on the client’s perception of legal advice. Therefore, paralegals must always exercise discretion and professional judgment but must never offer independent legal consultations in place of an attorney.
When in doubt, your response to the client should be a reminder that “I am not a lawyer and cannot give legal advice. But I will relay your message to the attorney, and someone will get back to you with an answer to your question.”
2. Representing a Client
Paralegals cannot appear in court on behalf of a client. This is a pretty simple rule to adhere to; paralegals are not recognized in most courts. However, this is not always the case, as a limited number of administrative law courts may allow paralegal client representation in special cases.
There are specific processes at court that do not require a formal court appearance but still count as client representation. For instance, filing a writ, motion paper, or other processes that need to be signed by an attorney will definitely count as client representation.
While a paralegal is allowed to draft legal documentation, they are not allowed to file it without the guidance of an attorney. Nor are they allowed to supervise the execution of legal documents without a lawyer present (or reasonably available), except in specific circumstances. For example, in Utah, the state bar association has Licensed Paralegal Practitioners who are permitted to supervise the execution of specific types of legal documents without the supervision of an attorney. There are similar programs in California (the Licensed Document Assistant) and Washington (the Licensed Legal Technician).
3. Negotiating Client Fees
The negotiated fee between a client and the attorney establishes the framework of the attorney-client relationship. The agreement to pay for legal services – even before payment is actually made – is considered the client’s part of the contract. This implies that it should be discussed between the attorney and the client directly.
This rule gets broken frequently, as clients typically expect inquiries about service costs or charges to be delegated to an employee, as they find in most other businesses. Therefore, it would be best if you were ready to deflect such discussions and direct clients to the attorney instead.
Recent Cases That Got Paralegals Into Trouble
The rules of paralegal ethics exist for a reason, and paralegals found to be in breach are investigated and prosecuted according to the regulations and jurisdiction of their states.
Brown v. Karmin Paralegal Services (2019)
Sometime in March 2017, the plaintiff reached out to the defendant, seeking legal services for a child support case with his ex-wife.
Karmin prepared legal documentation, gave legal advice, and engaged in several breaches of paralegal ethics, including but not limited to the preparation of opening and closing statements for Baron to use in court.
Baron lodged a complaint with the Committee on the Unauthorized Practice of Law, where it was decided that Karmin’s actions constituted the unauthorized practice of law. Following an investigation, charges were filed against Karmin, and Pre-Trial Intervention was initiated, conditioned on the payment of restitution.
Disciplinary Counsel v. Smidt (2020)
Melissa M. Smidt, a paralegal in Ohio, got into trouble after accepting a $1,000 payment from a client to negotiate a loan modification.
Subsequently, the client terminated Smidt’s legal representation and demanded a refund that Smidt refused to provide. As a result, a complaint was filed with the Committee on the Unauthorized Practice of Law, where it was decided that Smidt’s actions constituted the unauthorized practice of law.
How to Avoid Violating Paralegal Ethics and UPL
As you have seen, the rules regarding UPL are not always exact, especially when applied to real-life situations. Despite this, there are ways to avoid breaching these rules and the potential consequences that may follow.
- Always disclose your paralegal status to clients: As a paralegal, it is your responsibility to make sure all potential clients, and people you frequently interact with, know your status as a paralegal and how that differs from an attorney. In addition to introducing yourself as a paralegal at that first meeting or during the first phone call, include your title in the signature line of your email, so the client is reminded that you are not a lawyer.
- Avoid giving legal advice to anyone (even your friends and family!): It is always wiser to let the attorney in charge give direct legal advice to clients. However, suppose a situation arises where this is impossible because you are relaying information from the attorney (who is not available) to the client. In that case, you should clearly inform the client that you are relaying this information from the attorney.
- Never work without attorney supervision: Remember that your primary role as a paralegal is to provide legal support services. Therefore, always ensure you work in tandem with an attorney.
- Trust your instincts: Don’t take any chances; if a particular activity seems like it might lead to a UPL violation, follow your gut and stop immediately.
It is quite easy to mistake paralegals for attorneys because they work directly with attorneys and often handle tasks that require legal expertise. Despite this, even the most experienced paralegal must be supervised by an attorney.
While there are various and sometimes unclear activities that can be classified as UPL, it is the duty of paralegals always to be accountable for their actions at all times.
The punishment for breaching paralegal ethics and engaging in the unauthorized practice of law may range from minor fines to criminal prosecution or even debarring the supervising attorney. It is therefore vital to set clear boundaries with clients, no matter how friendly they seem. When faced with an ambiguous legal situation, the safest bet is to refer the client to an attorney.
Meet the Author
Ann Pearson is the Founder of the Paralegal Boot Camp, and host of the Paralegals on Fire! Podcast Show, and passionate about promoting the paralegal profession.
Ann spent 20 years working as a paralegal manager and a litigation paralegal before opening the Paralegal Boot Camp in 2010. Her training programs focus on adding immediate value to a paralegal’s career and bridging the gap between what a paralegal learns in school and what they actually do on the job.
When Ann is not working, you can usually find her somewhere near the ocean, either boating, scuba diving, or rescuing sea turtles.