The unauthorized practice of law

by Sharon Eubanks |
Oct. 25, 2017, 10:00am

WHEELING – Each state has laws that prohibit the unauthorized practice of law. 

Generally, these laws restrict the practice of law to lawyers who are licensed by the state. Licensing requirements are not uniform, but they frequently require taking and passing one or more bar examinations and a background investigation as to the fitness of an individual to practice law.

Education, examination, and moral character are all a part of the equation.

All jurisdictions do not agree on the definition of “the practice of law.” In fact, in 2003, an American Bar Association task force recommended that each state adopt its own definition, based on the premise that “the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.”

Guided by this premise, states have generally defined the practice of law as including the following activities:  giving advice about legal rights or responsibilities, drafting legal documents, representing another in court, and negotiating legal rights or obligations on behalf of another.  Many states have statutes that prohibit non-lawyers from holding themselves out as competent to give legal advice and to provide these services.

The practice of law is not limited to the conduct of cases before courts, but it also includes services rendered outside court, providing legal advice, or drafting legal documents.  

To put it bluntly, lawyers have a legal monopoly upon the practice of law.  

Although there are more lawyers per capita today than ever before, the legal need of low and moderate income persons remain unmet.  Some have argued that the lawyer monopoly should be eased so that affordable legal services are available to the public, providing greater public access to legal services.  

On the other hand, many lawyers, that is, licensed professionals, donate time and effort to represent those in need on a pro bono basis – for free, that is.   

Engaging a licensed professional to represent one is never a bad idea, and it is fairly easy to check public records to determine whether an attorney is licensed.  The specific rules governing the unauthorized practice of law in a particular jurisdiction should be consulted whenever one is in doubt regarding the qualifications of a person providing legal advice or services.    

Eubanks is an attorney with Bordas & Bordas in Wheeling.

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