Unauthorized Practice of Law: Can Paralegals Give Legal Advice?

Unauthorized Practice of Law Facts: Mr. Stan Smith calls his friend, Polly Paralegal, and leaves a message asking, “Do the grounds for divorce in North Carolina include adultery? ” Later that day, Mrs. Stan Smith calls Polly Paralegal and leaves a message asking, “Do I have grounds for divorce in North Carolina? I just found out that Stan committed adultery. ” INTRO: QUESTION 1: If Polly Paralegal answers Mr. Smith’s question, will she have engaged in the unauthorized practice of law? Explain and support your answer with information from at least one authoritative reference source. Historically, the courts of most jurisdictions seem to generally agree that paralegals may not: a. Give legal advice; e. Plan strategy; f. Make legal decisions; or g. Chart directions of a case

The National Association of Legal Assistant (NALA) Code of Ethics and Professional Responsibility: Canon 3: A legal assistant must not (a) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law; and (b) establish attorney-client relationships, set fees, give legal opinions or advice or represent a client before a court or agency unless so authorized by that court or agency; and (c) engage in conduct or take any action which would assist or involve the attorney in a violation of professional ethics or give the appearance of professional impropriety;

Canon 4: A legal assistant must use discretion and professional judgment commensurate with knowledge and experience but must not render independent legal judgment in place of an attorney. The services of an attorney are essential in the public interest whenever such legal judgment is required. Canon 5: A legal assistant must disclose his or her status as a legal assistant at the outset of any professional relationship with a client, attorney, a court or administrative agency or personnel thereof, or a member of the general public.

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A legal assistant must act prudently in determining the extent to which a client may be assisted without the presence of an attorney. Guideline 2: A legal assistant should not (1) establish attorney-client relationships; set legal fees, give legal opinions or advice or represent a client before a court; nor (2) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law. 4. Prosecution for the Unauthorized Practice of LawAn individual accused of engaging in the unauthorized practice of law faces a variety of consequences, anything from a cease and desist letter to criminal prosecution. Prosecutions include penalties from $25 to $500 and violations such as a first-degree misdemeanor.

Oftentimes, the primary tools to control the unauthorized practice of law are generated from consumer fraud acts that prohibit the impersonation of an attorney and have been used to prosecute criminally nonattorneys who appear in court as if they were attorneys or who prepare legal documents. 5. Cases of Interest QUESTION 2: If Polly Paralegal answers Mrs. Smith’s question will she have engaged in the unauthorized practice of law? Explain and support your answer with information from at least one authoritative reference source. Historically, the courts of most jurisdictions seem to generally agree that paralegals may not: a. Give legal advice; e. Plan strategy; f. Make legal decisions; or g. Chart directions of a case

The National Association of Legal Assistant (NALA) Code of Ethics and Professional Responsibility: Canon 3: A legal assistant must not (a) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law; and (b) establish attorney-client relationships, set fees, give legal opinions or advice or represent a client before a court or agency unless so authorized by that court or agency; and (c) engage in conduct or take any action which would assist or involve the attorney in a violation of professional ethics or give the appearance of professional impropriety;

Canon 4: A legal assistant must use discretion and professional judgment commensurate with knowledge and experience but must not render independent legal judgment in place of an attorney. The services of an attorney are essential in the public interest whenever such legal judgment is required. Canon 5: A legal assistant must disclose his or her status as a legal assistant at the outset of any professional relationship with a client, attorney, a court or administrative agency or personnel thereof, or a member of the general public. A legal assistant must act prudently in determining the extent to which a client may be assisted without the presence of an attorney.

Guideline 2: A legal assistant should not (1) establish attorney-client relationships; set legal fees, give legal opinions or advice or represent a client before a court; nor (2) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law. 4. Prosecution for the Unauthorized Practice of LawAn individual accused of engaging in the unauthorized practice of law faces a variety of consequences, anything from a cease and desist letter to criminal prosecution. Prosecutions include penalties from $25 to $500 and violations such as a first-degree misdemeanor.

Oftentimes, the primary tools to control the unauthorized practice of law are generated from consumer fraud acts that prohibit the impersonation of an attorney and have been used to prosecute criminally nonattorneys who appear in court as if they were attorneys or who prepare legal documents. 5. Cases of Interest

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