the unauthorized practice of law in the state of georgia eric c. lang icle atlanta, georgia march...
TRANSCRIPT
The Unauthorized Practice of Law
In the State of Georgia
Eric C. LangICLE
Atlanta, GeorgiaMarch 19, 2014
Topics
1. Basic principles of unauthorized practice.2. How you, a lawyer licensed in Georgia, can
get yourself in trouble.3. How others can get you, a lawyer licensed in
Georgia, in trouble.4. Economic and policy issues arising out of
encroachments on the authorized practice of law.
(Simply put – what about consultants andonline document providers?)
Rationales
• Cynical rationale: economic protection of thee profession.
• Protective rationale: nonlawyers are –– Untrained– Unregulated– Uninsured
What’s Clearly Forbidden
• Appearing in court. O.C.G.A. § 15-19-51(a)(1); O.C.G.A. § 15-19-50(1). • But what about: “preparing pleadings and other papers
incident to any action” • Drafting documents that affect legal rights.
O.C.G.A. § 15-19-50(2)(3).• But what about: “[t]he preparation of legal instruments
of all kinds” • Title opinions. O.C.G.A. § § 15-19-50(4). • Holding out. O.C.G.A. § § 15-19-51(3) , (7) & (8).
What’s Forbidden: Catch-Alls
”The giving of any legal advice; and [a]ny action taken for others in any matter connected with the law.” O.C.G.A. § § 15-19-50(5) & (6).
“To render or furnish legal services or advice . . . [t]o render legal services of any kind in actions or proceedings of any nature.” O.C.G.A. § § 15-19-51(4) & (6).
How You Can Get Yourself In Trouble:Multijurisdictional Practice
• All of Georgia’s neighboring states have adopted some form of Rule 5.5 on multijurisdictional practice.
• Note, specific Pro Hac Vice rules:– Florida limited to 3 separate appearances during
365 day period; required for arbitration.– Alabama limited to 5 appearances within prior 12
months.
Exception For Support Of Attorneys
Nothing contained in this article shall be construed to prevent a person, corporation, or voluntary association from furnishing to any person lawfully engaged in the practice of law such information or clerical services in and about his professional work as would be lawful except for Code Sections 15-19-51, 15-19-53, and 15-19-55, provided that at all times the attorney receiving the information or services shall maintain full professional and direct responsibility to his clients for the information and services received.
O.C.G.A. § 15-19-54.
Ethics Rule
Rule 5.3(b) requires “reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.”
Official comment to rule: “A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.”
“The maximum penalty for a violation of this Rule is disbarment.”
General Ethical Principle
“[W]hether the representation of the client has been turned over, effectively, to the nonlawyer by the lawyer permitting a substitution of the nonlawyer's legal knowledge and judgment for that of his or her own.”
Georgia Supreme Court Advisory Opinion 00-2
Generally Permitted Activities -- Paralegals
(1) The interview of clients, witnesses and other persons with information pertinent to any cause being handled by the attorney.(2) Legal research and drafting of pleadings, briefs of law and other legal documents for the attorney's review, approval and use.(3) Drafting and signing of routine correspondence with the clients of the attorney when such correspondence does not require the application of legal knowledge or the rendering of legal advice to the client.(4) Investigation of facts relating to the cause of a client of the attorney, including examinations of land records and reporting of his findings to the attorney.(5) Scheduling of the attorney's activities in the law office and scheduling of his appearance before courts, tribunals and administrative agencies.(6) Billing of clients and general management of the lawfirm's office and nonlegal staff. (7) Routine contacts with opposing counsel on topics not effecting the merits of the cause of action at issue between the attorneys or requiring the use or application of legal knowledge.(8) Rendering of specialized advice to the clients of the attorney on scientific and technical topics, provided that such advice does not require the application of legal judgment or knowledge to the facts or opinions to be discussed with the client.
Georgia Supreme Court Advisory Opinion 21.
Generally Prohibited Activities -- Paralegals
(1) Any contact with clients or opposite counsel requiring the rendering of legal advice of any type.(2) Any appearance as a lawyer at depositions, hearings, calendar calls or trials or before any administrative Tribunal unless otherwise preempted by Federal law or regulation. (3) Responsibility for making final decisions as to the ethics of activities of paralegal employees of an attorney.(4) Drafting, without review and approval by a member of the Bar, of any pleading or legal document.(5) Negotiation with opposing parties or their counsel on substantive issues in expected or pending litigation.(6) Contacting an opposite party or his counsel in a situation in which legal rights of the firm's client will be asserted or negotiated.(7) Signature of pleadings, briefs or other legal documents for presentation to any court or explanation of legal document s to the client of the lawyer or to the opposite party in any negotiation or litigation.Georgia Supreme Court Advisory Opinion 21.Hodge v. URFA Sexton LP, A13A0056, Ga. Ct. App. (July 1, 2013) – evolving
issues arising out of disqualifications arising out of non-attorney conflicts. (Argued, Supreme Court, early February 2014.
Special Rule:Disbarred /Suspended Attorneys
Rule 5.3(d): a lawyer shall not allow any person who has been suspended or disbarred and who maintains a presence in an office where the practice of law is conducted by the lawyer, to:
– represent himself or herself as a lawyer or person with similar status;
– have any contact with the clients of the lawyer either in person, by telephone or in writing; or
– have any contact with persons who have legal dealings with the office either in person, by telephone or in writing.
Comment 3: The prohibitions of paragraph (d) apply to professional conduct and not to social conversation unrelated to the representation of clients or legal dealings of the law office, or the gathering of general information in the course of working in a law office. The thrust of the restriction is to prevent the unauthorized practice of law in a law office by a person who has been suspended or disbarred.
Looks Like Practice of Law –But Isn’t
• “no bank shall be prohibited from giving any advice to its customers in matters incidental to banks or banking . . ..” O.C.G.A. § 15-19-52
• “a title insurance company may prepare such papers as it thinks proper or necessary in connection with a title which it proposes to insure, in order, in its opinion, for it to be willing to insure the title, where no charge is made by it for the papers.” O.C.G.A. § 15-19-52.
• “This article shall not prohibit a person, corporation, or voluntary association from examining the record of titles to real property . . .” O.C.G.A. § 15-19-53.
• Answering a garnishment, provided the answer is not traversed. O.C.G.A § 18-4-8(b).
• Preparing bankruptcy petitions. 11 U.S.C. §110
Looks Like Practice of Law –But Isn’t
Appearing before board of tax equalization. O.C.G.A. § 48-5-311(e)(6)(A)With respect to Realtax's alleged legal services, therefore, the only specifics provided by Grand Partners' representative were that Realtax reviewed contracts, read statutes, and provided advice on tax valuation and how that valuation would be received by the jury. We do not find that these acts or Realtax's other activities connected to filing and negotiating the tax appeal constitute the unauthorized practice of law.Grand Partners Joint Venture I v. Realtax Resource, Inc., 483 S.E.2d 922, 225 Ga.App. 409 (1997)
Self Representation –Individuals
“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state.”Ga. Const. Article I, Section I, Paragraph XII.“Nothing contained in this article shall prevent . . . individual from doing any act or acts set out in Code Section 15-19-50 to which the persons are a party.” O.C.G.A. § 15-19-52Be careful: background support of pro se litigants.
In re UPL Advisory Opinion 2002-1, 277 Ga. 521 (2004)
• Creditor assigns rights to (non-attorney) collector, who only gets paid if successful in collecting. May collector (an individual) pursue the claim pro se?
• “there is no real transfer of title and interest to the claim . . .under these circumstances is in actuality nothing more than a means through which Collector C is attempting to represent [Creditor].”
Self Representation – Entities“Nothing contained in this article shall prevent any corporation, voluntary association,. .. from doing any act or acts set out in Code Section 15-19-50 to which the persons are a party.” O.C.G.A. § 15-19-52.
"[i]n this state, only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record, including any proceeding that may be transferred to a court of record from a court not of record." Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (1997). The Georgia Court of Appeals concluded "that the rationale and holding of Eckles should, and does, apply to limited liability companies." Winzer v. EHCA Dunwoody, LLC, 277 Ga. App 710, 713 (2006)
“the probation officer was acting as a State agent in the preparation and filing of the petition,” Leverette v. State, 546 S.E.2d 63, 248 Ga.App. 304 (2001); see also Huzzie v. State, 558 S.E.2d 767, 253 Ga.App. 225 (2002).
Librarians: Legal Information v. Legal Advice
Southern California Association of Law Libraries, Locating the Law (5th Ed. 2011)
Librarians: Legal Information v. Legal Advice
Legal Information:- Facts about the law- Questions that start
with who, what, when, where or how.
- Legal authority as provided in statutes, cases, or rules
- Authoritative books and online resources
Examples:- Finding various court forms without
telling a patron which form to use- Finding a statute, rule or ordinance
(either by index or exact citation) but not interpreting the statute
- Finding court cases on a particular topic but not applying the court rulings to an individual’s personal circumstances
- Finding court rules for a particular court (state or federal) but not explaining the court process described by a rule
Minnesota Association of Law Libraries, Legal Reference and the Unauthorized Pracitice of Law (http://www.aallnet.org/chapter/mall/uplgraphicswithimages.pdf).
Evolving Issue 1:Consultants
“Risk Consulting”
“As the business and regulatory environment continues to evolve, organizations face unprecedented regulatory scrutiny, emerging and systemic risks that can challenge traditional strategies and assumptions. For business leaders, this can mean balancing the pursuit of corporate performance objectives, while maintaining compliance with regulatory requirements.”
“As the business and regulatory environments continue to evolve, organizations face emerging risks that challenge traditional strategies and assumptions. In this environment, resilience is the key to organizational survival, and companies need to achieve a balance of governance, risk-management, regulatory compliance, and performance.”
More “Risk Consulting”
“[Company] helps clients meet compliance challenges in the ever-changing regulatory environment surrounding government contracting by enhancing the effectiveness of internal controls and processes needed to manage government contracts in a compliant manner.”
“Some organizations lose revenue, license fees, royalties, or pay higher amounts to partners than they should to third parties with which they have contractual arrangements. [We] can help them recover those funds and improve internal processes to help ward off further losses and over-payments.”
HR Consulting
• “At [company], affirmative action planning and compliance are all we do.”
• “EEO and Affirmative Action are not exactly the same thing. . . [Company] ensures that all of its Affirmative Action outsourcing and consulting services are grounded in both sets of statutes as well as reflecting sound business practices for the client.
A Possible Exception
• “nor shall any person, firm, or corporation be prohibited from drawing any legal instrument for another person, firm, or corporation, provided it is done without fee and solely at the solicitation and the request and under the direction of the person, firm, or corporation desiring to execute the instrument.” O.C.G.A. § 15-19-52
• UPL Advisory Opinion No. 2004-1– “the nonlawyer preparer of a legal document could always
claim to be charging the fee for something other than the preparation of the instrument.”
Francorp Inc. v. Siebert211 F.Supp. 2d 1051 (N.D. Ill 2002)
• Francorp was a franchise consulting company that, among other things, “helps prepare documents for its clients, including franchise agreements, offerring circulars, licensing agreements, sub-franchise agreements, earnings claims documents and state registration certificates. Some of these documents are intended to be legally binding contracts.”
• Siebert sued under deceptive trade practices act, claiming Francorp engaged in unauthorized practice of law.
• Court found though activities constitute practice of law, issues remained whether clients’ counsel performed independent review of documents.
Academic Analysis
Rostain, The Emergence of “Law Consultants,” 75 Fordham Law Review 2006: “The emergence of law consultants makes it clear that the attorney-client relationship in the corporate context is not a necessary feature of the American legal landscape. To the contrary, it is the product of laws that require corporations to retain lawyers to conduct certain kinds of business or confer other benefits to corporations when they enter into attorney-client relationships. With the rise of compliance regulatory regimes, there are vast areas of corporate regulation that may end up ceded to compliance consultants. In the long run, law consultants, with their ready access to multidisciplinary expertise, may be better suited to assist corporations in responding to the demands created by these regulatory regimes.”
Evolving Issue 2: Online Providers
Just Search “Georgia Cheap Incorporation”
“(COMPANY) is a document filing service and CANNOT provide you with legal, tax or financial advice.”
There Are More“[COMPANY] creates and files the Articles of Incorporation (or, in some states, the "Certificate of Formation" or "Certificate of Incorporation") with the Secretary of State (or in some states, the "Department of State" or "Corporation Commission"). . . .We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.”
Incorporation Services
UPL Advisory Opinion No. 2005-1:“The documents referenced in the question above are designed to bring a corporation into existence. Once they are filed with the Georgia Secretary of State, they confer rights and impose obligations under applicable state and federal law. In view of the foregoing, the preparation of the documents involves the practice of law.”
Just Search“Georgia Cheap Divorce”
No Humans Involved
”COMPANY is a leading self-help divorce document web site.However, this site does not provide legal advice and use of this site isnot a substitute for hiring an attorney licensed to practice in your state.”
Landlord/Tenant Services
One Company AdvertisesThe Following CATEGORIES of Agreements
• Affidavits• Bills of Sale• Business• Entertainment• Event Planning• Household• HR / Employment• Intellectual Property• Internet / Technology
• Landlord / Tenant• Lending• Loans / Promissory
Notes• Nondisclosure
Agreements• Retail• Service Agreements
The Business Category HasSubcategories
Amendment of AgreementArbitration AgreementAssignment of AgreementBreach of Contract NoticeBusiness Plan Nondisclosure AgreementCertification of Cease and DesistDomain Name Cease and Desist LetterEquipment Lease AgreementExtension of AgreementFinal InvoiceGeneral AgreementJoint Venture Agreement Amendments
Late Payment Collection LetterLetter of Intent for Business TransactionLetter of ResignationMutual Rescission of Contract and ReleaseNotice of Dissolution of Partnership (Debtors and Creditors)Partnership Dissolution AgreementProduct Supply AgreementPurchase ReceiptResearch and Development AgreementReturned Check NoticeTermination of Agreement and Release (General)
People Get Prosecuted
State Bar of Georgia v. Bradshaw d/b/a Proper Legal Document Service, In the Superior Court of Dekalb County, No. 04CV4685 (2004). State Bar of Georgia v. ABTN, Inc., In the Superior Court of Houston County, 2005-V-81271-L (2005). State Bar of Georgia v. Hightower d/b/a Forms Unlimited., In the Superior Court of Clayton County, 2006 CV 1956-5 (2006). State Bar of Georgia v. Rachel Russell., In the Superior Court of Dekalb County, 06CV7602-7 (2006). State Bar of Georgia v. James Leonard d/b/a Legal Documents R Us., In the Superior Court of Newton County, 20091227-3 (2009). State Bar of Georgia v. Richard Peacock d/b/a TPI Docs et al., In the Superior Court of Fulton County, 2011CV199523 (2011). BUT WHAT ABOUT ONLINE PROVIDERS?
Actions Against Online Document Services
McIllwain v. LegalZoom.Com, Inc., Pope County (Arkansas) Circuit Court, No. CV-2012-35 • class action alleging violations of deceptive
trade practices act through the unauthorized practice of law.
• LegalZoom’s arbitration clause enforced (2013 Ark. 370).
Actions AgainstOnline Document Services
Janson v. LegalZoom.com, Inc., 802 F.Supp2d 1053 (W.D.Mo. 2011)- Class action against LegalZoom for unauthorized
practice arising out of document preparation, as opposed to sale of blank forms.
- Denied LegalZoom’s motion for summary judgment: “the customer merely provides the information and ‘LegalZoom takes over.’”
- Settled for payment and changes in business practices.
Actions AgainstOnline Document Services
Lowry v. LegalZoom.com, Inc., No. 4:11CV02259 (N.D. Ohio July 19, 2012)- Class action against LegalZoom for
unauthorized practice.- Granted LegalZoom’s motion to dismiss
because under Ohio law, private right of action for unauthorized practice requires prior ruling by Ohio Supreme Court that unauthorized practice has occurred.
Actions AgainstOnline Document Services
LegalZoom.com, Inc. v. North Carolina State Bar, 11 CVS 15111 (Wake County, August 27, 2012)- Claim by LegalZoom arising out of State Bar
refusal to allow LegalZoom to register its prepaid legal services plans in North Carolina.
- State Bar moved to dismiss arguing it has the authority to regulate unauthorized practice of law.
- Court deferred ruling on ripeness grounds, which grounds were not urged by either party.
Actions AgainstOnline Document Services
Webster v. LegalZoom.com, Inc. Case No. BC438637 in the Superior Court of the State of California for The County of Los Angeles.- Class action claiming that LegalZoom.com
(“LegalZoom”) made misleading advertising statements and over-promised the services that LegalZoom would provide.
- Action settled for free services or cash payment.
Academic Analysis
Figueras, The LegalZoom Identity Crisis: Legal Form Provider or Lawyer in Sheep’s Clothing?, Case Western Reserve University Law Review, Summer 2013: “While LegalZoom’s blank form providing service is generally acceptable, its form preparation service risks crossing into the realm of unauthorized practice of law.”
Academic Analysis
Lanctot, SCRIVENERS IN CYBERSPACE: ONLINEDOCUMENT PREPARATION AND THEUNAUTHORIZED PRACTICE OF LAW 30 Hofstra Law Review 811 (2002) “The legal profession cannot afford its continued inaction on scriveners in cyberspace. Indeed, we must think seriously about what constitutes the practice of law in the twenty-first century, before that practice is defined out from under us.”
Academic Analysis
• Soha F. Turfler, A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach To Defining the Practice of Law, 61 Wash. & Lee L. Rev. 1903 (2004): “Access to legal guidance is a serious problem with which society must deal, and alternative forms of legal services delivery and providers present a solution to that problem . . . Whatever the ultimate consensus on the definition of the practice of law is, the correct balance between the public's need for access to legal services and its need for protection must be struck. Access to justice is a problem that should not be ignored. The time has come to formulate a model definition of the practice of law. . ..”
Academic Analysis
Rotenberg, Stifled Justice: The Unauthorized Practice of Law and Internet Legal Resources, 97 Minnesota Law Review 709. “The legal profession is not—and should not be—immune from technology that is transforming all of us in innumerable ways. The legal community, the unauthorized practice committees, and state judiciaries should embrace significant advances in ILP technology, and adopt relaxed regulatory schemes with baseline disclosure and accreditation safeguards. By implementing proper safety mechanisms to protect consumers, without substantially limiting the capacity of ILPs to improve delivery of legal services, millions of Americans will, for the first time, be able to enjoy, safely and efficiently, meaningful access to the judicial system.”
SB 209
"10-12-14.1. The design, creation, assembly, completion, publication, distribution, display, or sale, including by means of an Internet website, of self-help legal written materials, books, documents, forms, computer software, or similar products shall not constitute a violation of Article 3 of Chapter 19 of Title 15 if such products clearly and conspicuously state that they are not a substitute for the advice of an attorney."
SB 209 – In Focus
"10-12-14.1. THE DESIGN, CREATION, ASSEMBLY, completion, publication, distribution, display, OR SALE, including by means of an Internet website, OF SELF-HELP LEGAL written materials, books, DOCUMENTS, forms, computer software, or similar products SHALL NOT CONSTITUTE A VIOLATION OF ARTICLE 3 OF CHAPTER 19 OF TITLE 15 IF SUCH PRODUCTS CLEARLY AND CONSPICUOUSLY STATE THAT THEY ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY."
