Unauthorized Practice of Law Committee Reminds
Residents and Lawyers of Rights and Protections
By Seth D. Wilson, Esq.
As seen in SIDEBAR Magazine
Plymouth Meeting, PA - Attorneys know that practicing law encompasses a multifaceted array of tasks and responsibilities. It also involves knowledge of other professional disciplines not taught in law school. Lawyers must be well-versed in the matters affecting their clients. For example, personal injury attorneys must understand the medicine underlying a client’s injury. In order to cross examine a doctor or explain an injury to a jury, an attorney must know the medicine. Does that mean that the same attorney could perform surgery or provide medical advice? Of course not. Unfortunately, there is not similar deference to the legal profession.
In Pennsylvania, only licensed attorneys are permitted to practice law. The Pennsylvania legislature has recognized the serious problems inherent in the practice of law by non-lawyers, also known as the Unauthorized Practice of Law (UPL). In 42 Pa.C.S. § 2524, the Legislature codified UPL and decreed that a violation of the statute was a misdemeanor of the third degree. Subsequent violations constitute 1st degree misdemeanors.
In order to regulate UPL, it is essential to understand exactly what amounts to the permissible practice of law by licensed attorneys. The Pennsylvania Supreme Court has held that the practice of law encompasses all material aspects of a lawyer’s duties to his client, including (1) the instruction and advising of clients in regard to the law, (2) the preparation of legal documents for clients, (3) the appearance on behalf of clients before public tribunals, and (4) holding out oneself to the public as competent to exercise legal judgment and the implication that he or she has the technical competence to analyze legal problems and the ability to act in a representative capacity.
In some instances, such as cross-examining an expert witness at a jury trial, actions that amount to the practice of law are simple. In other instances, defining the practice of law is more susceptible to interpretation. Are psychologists permitted to draft custody agreements? Are paralegals permitted to draft wills for clients without the supervision of a practicing attorney? Are engineers permitted to represent developers before a Zoning Hearing Board? Are accountants permitted to form corporations for clients?
The answer to all of these questions is a resounding no. While each of these professionals undoubtedly has some knowledge of the legal issues involved, that does not make them a lawyer. Nevertheless, these unlawful activities have been encountered in Montgomery County.
The MBA’s UPL Committee polices UPL to protect both lawyers and the community at large. When non-lawyers practice law, attorneys are deprived of representation in the already competitive legal marketplace. More importantly, clients suffer from inadequate representation. Clients “represented” by non-lawyers bear the brunt of the poor result, often financially. The unlawful actions of non-lawyers leave disenfranchised clients with a bad taste in their mouth for the legal system.
The MBA UPL Committee is structured to serve the needs of both the legal community and the public. The UPL Committee receives referrals from attorneys who encounter UPL in their own practices. Once the Committee receives a referral, it is immediately assigned to a Committee member for investigation. Following the investigation, the Committee member presents the factual and legal findings to the Committee. A Committee vote then determines the appropriate course of action. The Committee is cognizant that certain, lawful business ventures that tangentially involve legal matters may not constitute UPL. The Committee takes precaution to thoroughly investigate the conduct to ensure that any action is directed at those persons or entities unlawfully practicing law.
Action by the UPL Committee normally involves the transmittal of a cease and desist letter to the offending party. These letters have been very effective in stopping the unlawful conduct. Persistent violations involve referral to the Pennsylvania Bar Association’s UPL Committee or the Montgomery County District Attorney.
The UPL Committee can only function through referrals from members. The expansive and amorphous nature of the practice of law begets unlawful intrusion into the province of lawyers. It is the members of the MBA that are on the frontline to discover UPL. Contacting the UPL Committee with potential UPL referrals serves to protect Montgomery County residents. To report UPL, please contact UPL Committee Co-Chairs Eric Smith (firstname.lastname@example.org) or Seth Wilson (email@example.com).
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