Chapter 3 - Unauthorized Practice of Law

Question 1

3 reasons regulation of lawyers was original put into place

Answer 1

1. prevent unscrupulous attorneys 2. stop incompetence 3. prevent excessive fees

Question 2

The (1) saw an era of deprofessionalization of law, and the (2) saw a reinstatement. The first unauthorized practice of law statutes were passed by several states in the (3) and had mainly to do with (4). The definition of unauthorized practice expanded and reached its height during the (5).

Answer 2

1. early 19th century 2. late 19th century 3. 1850s 4. nonlawyers representing clients 5. Great Depression

Question 3

In 1930 the ABA created a (1) which by the late 1950s had agreements called (2) with nonlawyer assistants. These were later rescinded because of the (3). Suits to restrain UPL slowed during the 1960s and 70s due to a rise in (4).

Answer 3

1. Special Committee on the Unauthorized Practice of Law 2. Statements of Principles 3. Sherman Antitrust Act 4. legal self-representation

Question 4

3 reasons alternative legal service providers surged in the 80s, causing a need for greater UPL prosecution

Answer 4

1. decrease in federal funding for Legal Services Corporation 2. increase in need for legal services by every socioeconomic group because of more, and more complicated, laws 3. rising cost of legal services

Question 5

2 levels of help nonlawyer legal services might provide (independent paralegals, legal technicians, document preparers, etc.)

Answer 5

1. “typing services”–create forms from fill-in-blank forms 2. tell what forms to use, where to file, procedural

Question 6

(1) is a national organization that provides help to self-represented persons

Answer 6

1. We the People

Question 7

2 reasons lawyers may not want nonlawyers to provide services

Answer 7

1. economic reasons 2. integrity of work

Question 8

4 areas where prosecutions against nonlawyer legal services are especially heavy

Answer 8

1. bankruptcy 2. landlord-tenant 3. immigration 4. family law

Question 9

Complaints against nonlawyer entities can be brought by both (1) and (2).

Answer 9

1. lawyers 2. disgruntled clients

Question 10

3 main, unsuccessful defenses in UPL prosecutions

Answer 10

1. giving “legal information,” not legal advice 2. statutory power of attorney = authority to represent client 3. public necessity

Question 11

5 modern developments in UPL

Answer 11

1. growth in foreclosures (consultants, loan mod agencies, even lawyers) 2. proliferation of electronic resources (online guides = legal advice) 3. immigration (federal reach is not long enough) 4. living trust document preparation = UPL in some states (attys involved with marketers but abdicating duties get in trouble too) 5. Oregon - PL could not make court appearance under lawyer supervision

Question 12

Attorneys can get in trouble for setting up (1) and (2) in which they abdicate lawyer duties to paralegals. They have also gotten in trouble for being hired by nonlawyer legal services to (3).

Answer 12

1. living trust marketers 2. large-volume practices 3. legitimize their work

Question 13

4 bad behaviors of nonlawyer-lawyer mix

Answer 13

1. delegation of duties (client intake, retainer, document preparation) 2. unlawful solicitation of clients 3. parternship between lawyer/nonlawyer 4. unlawful fee splitting

Question 14

Practice of lawyers across (1) is also a problem. Questions have been raised about whether a (2) should be able to represent a corporation, and it usually has been allowed for (3) and (4).

Answer 14

1. jurisdictional lines (licensed in one state, practicing in another) 2. corporate officers 3. small claims 4. administrative hearings

Question 15

Questions have also been raised about whether nonlawyers and parents have a right to represent (1) under the federal (2), in which rules applying to administrative hearings do not apply. It has usually been ruled that they may not represent the (3) but may represent their (4).

Answer 15

1. their children 2. Individuals with Disabilities Act 3. children 4. own interests

Question 16

3 tests of practice of law proposed by Charles Wolfram in Modern Legal Ethics + 2 alternative tests

Answer 16

1. professional judgment test (requires lawyer’s special training/skills) 2. traditional areas of practice test (traditionally performed by an attorney) 3. incidental leal services test (essentially legal in nature? Or law-related adjunct to something else?) and, 4. characterized by personal relationship between layer and client and, 4. characterized by personal relationship between layer and client 5. public interest best served by atty practicing it?

Question 17

7 consequences of UPL

Answer 17

1. criminal prosecution of nonlawyer/out-of-state lawyer 2. contempt/civil contempt proceedings if nonlawyer appearing in court 3. action for injunctive relief (courts, bar assn) 4. liability for negligence 5. unenforceability of a contract for legal service 6. dismissal of action 7. voiding of judgment

Question 18

Some nonlawyer activities are prohibited altogether; other are allowed under (1). Lawyers are prohibited from (2) unauthorized practice. They are responsible for (3), (4) and (5) of paralegals.

Answer 18

1. lawyer supervision 2. aiding 3. training 4. supervision 5. delegation

Question 19

4 exceptions to nonlawyers not being allowed to appear before court

Answer 19

1. self-representation 2. marital representation (some states)(nonlawyer represents spouse) 3. law students (under certain standards) 4. paralegals for uncontested matters (some local jurisdictions)

Question 20

A deposition may be (1) and carries the same weight as (2). It may be used to (3) or in (4) of testimony. Objections typically are based on (5) or (6) and are preserved for trial. (7) may not conduct depositions because of the knowledge-based and candid nature.

Answer 20

1. introduced into court 2. testimony 3. impeach the witness 4. lieu 5. privilege 6. relevancy 7. paralegals

Question 21

Because pleadings constitute (1) in court, paralegals may not (2) them.

Answer 21

1. written appearances 2. sign

Question 22

4 basic forms of legal advice

Answer 22

1. recommendign a course of conduct or particular action 2. evaluating probable outcomes 3. outlining legal rights/responsibilities 4. interpreting/applying statutes, decisions, other legal documents

Question 23

A paralegal may (1) advice from the lawyer, as long as it is not (2) or (3). An exception to nonlawyers giving legal advise is made for (4). The rule has also been challenged by those seeking to aid (5).

Answer 23

1. relay 2. interpreted 3. expanded upon 4. jailhouse lawyers (one inmate giving advice to another) 5. self-representatives

Question 24

In California nonlawyer legal service providers are regulated as (1); in Arizona, they are called (2). Both are required t comply with (3) and (4) restrictions.

Answer 24

1. legal document assistants 2. legal document preparers 3. legal 4. ethical

Question 25

2 things lawyers have to be careful not to do on the internet

Answer 25

1. give legal advice (such as in bulletin boards) 2. establish attorney-client relationship inadvertently

Question 26

Communications with nonlawyer legal document preparers or jailhouse lawyers, etc. are not protected by the (1).

Answer 26

1. attorney-client privilege (persons involved can be made to testify)

Question 27

A lawyer may not delegate establishment of attorney-client relationship; that is, the lawyer must establish a (1) with the client. (2) should also be determined by the lawyer. In reviewing a case, a court will look at whether the attorney has (3), (4) and exercised (5).

Answer 27

1. direct relationship 2. Fees 3. met with the client 4. reviewed documents 5. independent professional judgment

Question 28

3 things a paralegal is not prevented from doing in establishment of attorney-client relationship

Answer 28

1. communicate standard/specific fee information under lawyer’s instruction 2. draft retainer agreements/engagement letters 3. present lawyer-approved documents for client’s signature

Question 29

Conflicting rules exist about the paralegal’s role in solely executing a (1). Similarly controversial is the handling of (2) because it might require interpretation, explanation or dispute resolution of documents, which constitutes (3).

Answer 29

1. will (signing by client and witnesses) 2. real estate closings 3. legal advice

Question 30

5 specific standards that have been given by a Florida Bar advisory opinion offering exception to a paralegal handling a real estate closing alone

Answer 30

1. attorney supervision up to time of closing 2. client consent 3. attorney available to give advice if needed 4. no disputes; client understands terms 5. no legal advice given during time by paralegal

Question 31

If a client in a personal injury or other matter discusses settlement with the paralegal, she must (1) and the attorney must (2).

Answer 31

1. convey that to the attorney 2. discuss the offer to settle with the client

Question 32

Administrative agencies are created by state and federal (1) to provide for the regulation of certain highly (2) fields. They are (3) in nature, meaning hearings are less formal than trial and come before an (4) or (5) with (6) representing clients.

Answer 32

1. legislatures 2. specialized 3. quasi-judicial 4. administrative law judge 5. hearing officer/examiner 6. advocates

Question 33

3 things an advocate, like a lawyer, must be able to do

Answer 33

1. have knowledge of law/procedures of agency 2. apply knowledge to facts 3. advocate client’s case competently in an adversarial setting

Question 34

The issue of nonlawyer practice is decided by the (1) and is done to provide easier (2) and to make the process less formal, long and (3).

Answer 34

1. agency itself 2. access 3. expensive

Question 35

2 reasons disclosure of status as a paralegal is part of UPL rules

Answer 35

1. if a person seems to be a lawyer, this may appear to be intentional masquerading 2. if a client thinks a paralegal is an attorney, he may ask questions that require legal advice as an answer

Question 36

(1) or (2) are both appropriate as titles for informing the client of non-lawyer status, but in some regions they carry different meanings.

Answer 36

1. paralegal 2. legal assistant

Question 37

Paralegals may (1) as long as they include their proper titles. However, the correspondence may not contain (2) or (3). (4) are also very generally accepted, as long as duties are under supervision of a lawyer. Listing paralegals’ names on (5), is generally not allowed or is subject to very specific rules.

Answer 37

1. sign correspondence 2. legal advice 3. threatened legal action 4. Business cards 5. Letterhead

Question 38

Many paralegals work on an as-needed basis as (1), or (2). Work is also sometimes (3). These paralegals present new concerns in ethical areas such as (4) and (5), as well as (6).

Answer 38

1. independent contractors 2. freelance paralegals 3. outsourced to vendors 4. confidentiality 5. conflict of interest 6. title/UPL