Legal Ethics

Law Grads: You Need to Know About the Unauthorized Practice of Law

unauthorized practice of lawIf you took the bar exam in July, can you say you’re a new lawyer? Not yet. We’re in that limbo time of the year in which law students have taken the bar exam (and presumably have passed the character and fitness examination), but are not licensed to practice law.

Additional steps to becoming a lawyer are: 1) receiving a passing grade on the bar exam. (Those results usually come out in early October for July test takers); 2) receiving a license to practice from the Illinois Supreme Court. (Those licenses are conferred in bar admission ceremonies which occur in each of the five judicial circuits across Illinois in either October or November.); and 3) registering with the Attorney Registration and Disciplinary Commission. (You will receive a notice from the ARDC shortly after the bar swearing-in ceremony.)

Meanwhile, law school graduates need to be careful what activities they engage in because they are not yet licensed to practice law. What else do new law grads need to know about the unauthorized practice of law?

Lawyers and the Unauthorized Practice of Law

In Illinois, only a licensed lawyer may practice law. If a lawyer’s license is suspended and they continue to offer legal services, they may be prosecuted by the state’s disciplinary authority. Last year, the ARDC reported 113 investigations of UPL, 97 of which were against unlicensed persons or entities.

The major trip-ups for lawyers in this area, according to Scott Kozlov, ARDC Senior Counsel in charge of UPL prosecutions in Illinois, are three-fold: 1) failure to pay their attorney registration fee on time; 2) failure to comply with the Minimum Legal Education Requirements; and 3) cross-border problems. The lesson of the first two issues is self-evident: pay attention to your requirements and due dates under the Supreme Court Rules.

The issue of practicing law in a jurisdiction where you are not licensed is becoming trickier as more and more lawyers (and clients) cross state borders. Lawyers receive a license to practice law from the highest court in their jurisdiction and generally may not practice law in another jurisdiction. The Model Rules of Professional Conduct address the unauthorized practice of law and multi-jurisdictional conduct, and Rule 5.5(c) and (d) allow an attorney licensed in one jurisdiction to provide services in another jurisdiction on a temporary basis under certain circumstances.

Although the Illinois rule is identical to the ABA Model Rule, other states differ on their version of Rule 5.5.  It behooves a lawyer to understand the version of Rule 5.5 that’s in place in the state in which they are practicing so they do not get in trouble with the disciplinary authorities in that state. So that begs the question – what exactly is the practice of law?

What Is the Practice of Law?

In Illinois, since the 1949 case of People v. Schafer, the practice of law has been explained as giving advice or services “when the giving of such advice or rendition of such service requires the use of any degree of knowledge or skill.” This is a broad and vague definition that is not restricted to appearing in court. This would include, for example, preparing documents. A way to think about this definition is to think about the difference between advice and information. Giving legal advice is the province of lawyers, but anyone may provide information, because that is not the practice of law.

Drawing the line between providing information and giving advice has become more difficult since the advent of the internet. Back in the day, legal information was catalogued in books with a subject matter (keynote) system that took special training to understand how to access. Lawyers had a monopoly on information, so they also were, practically speaking, gatekeepers to information as well as advice. Not so anymore.

Now all sorts of information is available on the internet, including legal information. Lawyers are not the only individuals providing legal information online. Anyone may provide information. But if those who are not attorneys cross the line into providing legal services, they may be committing the unauthorized practice of law.

Non-Attorneys and Unauthorized Practice of Law

Beyond court rules governing the admission and ethical obligations of lawyers, the public also is protected by the Illinois Attorney Act which prohibits anyone who is not licensed by the Supreme Court from practicing as an attorney in this state. A UPL proceeding against an unlicensed person proceeds slightly differently. Rule 779(b) provides that once the Inquiry Board of the ARDC authorizes the proceeding, a civil or contempt action is filed in circuit court. The allowable sanctions are indirect contempt (carrying sanctions of jail time and a monetary fine) or civil penalties and injunctive relief under the Attorney Act.

The typical fact pattern in this area is a con man impersonating an attorney or a paralegal or clerk exceeding their authority in giving legal advice or filing court documents. Generally, the ARDC is not looking to engage in turf battles, but looking for cases with a victim. The majority of these cases are resolved by the ARDC with the individual entering into an agreement to stop engaging in the offensive conduct.

Although we hear a lot about the possibility of unauthorized legal services being offered on the internet, the ARDC had not had such a case go through the process until just last week. In Larkin v. Akinlemibola, 17 MC1 600006, Commission no. 2107PR00003, the respondent, who went to law school but was never admitted to the bar of Illinois (or any other state), put up a website offering legal and other services. She was found in contempt of court and fined $5,000 to be paid to the Equal Justice Foundation.

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