Lesson 1, Topic 1
In Progress

Introduction and The Unauthorized Practice of Law

Joe May 27, 2020
With questions please contact us at: class_question@1chq.com

It is important to know that you are not a lawyer nor an attorney and this is not a law class. Upon the completion of this class you will not be a Lawyer nor will you be an Attorney. It is important that you do not engage in the Unauthorized Practice of Law. In order for you not to engage in the Unauthorized Practice of Law you must know and be clear of exactly what is The Practice of Law.
In this section, we will define The Practice of Law from the most common definitions. However, it is important that you check with the law in the state that you will be facilitating immigration documents for service. Immigration documents are legal documents and although you will be facilitating the filling out of these documents, you must be sure you do so without practicing law, pretending to be an attorney, claiming to be an attorney nor giving advise to your clients. Giving advise could open you up to a lawsuit and further more it could be construed as The Practice of Law. Giving advise is reserved for Attorneys and or Lawyers.

Black’s Law Dictionary defines unauthorized practice of law as “The practice of law by a person, typically a non-lawyer, who has not been licensed or admitted to practice law in a given jurisdiction.” … With a few exceptions, the general rule is that an appearance at an arbitration does not constitute the practice of law.

In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents. In addition, regulatory consulting firms also provide advisory services on regulatory compliance that were traditionally provided exclusively by law firms.

In the United States, the practice of law is conditioned upon admission to practice of law, and specifically admission to the bar of a particular state or other territorial jurisdiction. The American Bar Association and the American Law Institute are among the organizations that are concerned with the interests of lawyers as a profession and the promulgation of uniform standards of professionalism and ethics, but regulation of the practice of law is left to the individual states, and their definitions vary. So again check with your states definition.

The American Bar Association’s Definition Of The Practice Of Law
Draft (9/18/02)

(a)  The practice of law shall be performed only by those authorized by the highest court of this jurisdiction.

(b)  Definitions:

(1) The “practice of law” is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.

(2) “Person” includes the plural as well as the singular and denotes an individual or any legal or commercial entity.

(3) “Adjudicative body” includes a court, a mediator, an arbitrator or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.

CLASS NOTE: PLEASE PAY CLOSE ATTENTION TO THE NEXT SECTION.

(c)  A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:

(1) Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;

(2) Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;

(3) Representing a person before an adjudicative body, including, but not limited to, preparing or filing documents or conducting discovery; or

(4) Negotiating legal rights or responsibilities on behalf of a person.

(d)  Exceptions and exclusions: Whether or not they constitute the practice of law, the following are permitted:

CLASS NOTE: THE FOLLOWING ARE PERMITTED WHETHER OR NOT THEY CONSTITUTE THE PRACTICE OF LAW.

(1) Practicing law authorized by a limited license to practice;

(2) Pro se representation;
Pro se representation comes from Latin pro se, meaning “for oneself” or “on behalf of themselves”, which in modern law means to argue on one’s own behalf in a legal proceeding as a defendant or plaintiff in civil cases or a defendant in criminal cases.

(3) Serving as a mediator, arbitrator, conciliator or facilitator; and

CLASS NOTE: AN IMMIGRATION FACILITATOR IS WHAT YOU WILL BE.
Facilitator is defined as a person or thing that makes an action or process easy or easier.

(4) Providing services under the supervision of a lawyer in compliance with the Rules of Professional Conduct.

(e)  Any person engaged in the practice of law shall be held to the same standard of care and duty of loyalty to the client independent of whether the person is authorized to practice law in this jurisdiction.    With regard to the exceptions and exclusions listed in paragraph (d), if the person providing the services is a non-lawyer, the person shall disclose that fact in writing.  In the case of an entity engaged in the practice of law, the liability of the entity is unlimited and the liability of its constituent members is limited to those persons participating in such conduct and those persons who had knowledge of the conduct and failed to take remedial action immediately upon discovery of same.

(f)  If a person who is not authorized to practice law is engaged in the practice of law, that person shall be subject to the civil and criminal penalties of this jurisdiction. 

Comment

[1] The primary consideration in defining the practice of law is the protection of the public. Thus, for a person’s conduct to be considered the practice of law, there must be another person toward whom the benefit of that conduct is directed. That explains the exception for pro se representation. The conduct also must be targeted toward the circumstances or objectives of a specific person. Thus, courts have held that the publication of legal self-help books is not the practice of law.

[2] The exception for pro se representation in paragraph (d)(2) contemplates not only self-representation by an individual but also representation of an entity by an authorized non-lawyer agent of the entity in those jurisdictions that permit such representation.

How do you avoid practicing law. To not give advise to clients. Your job is to facilitate the immigration forms and you do this through the help of an intake form which we will discuss later in this course. Not through a one on one dialog. This doesn’t mean you do not speak to your client, this means that you refrain from giving advise to your clients.

The following is a list of what you can do:

  • To have a menu displaying your services and prices displayed in your office and your website.
  • A sign or disclaimer clearly visible on your website and office stating that you are not a law office.
  • Give your client a disclaimer to sign that you are not a law office and that you are not a law firm. That you Do Not give legal advise and you mealy facilitate the immigration documents.
  • You may give your client an intake form in the preferred language of your client to fill out. Within this form you will have all the questions necessary for you to facilitate the actual immigration form that your client will hire you to facilitate.
  • You may present your client with a list of needed documents to facilitate the immigration form.
  • You may explain to your client the process and the intake form.
  • You may also give your client additional instructions provided on the uscis.gov website and or you 1st Choice agent portal.

What you do not do is handle clients with arrest records as well as other complications where the client may need the advice of an attorney. You do not represent the client in court and you do not give advice on how to go to court and to say in court. 1st Choice has attorneys for you to be able to refer your client to. KEEP IT SIMPLE. On the first sign of complications, such as people with criminal records, unauthorized or undocumented immigrants you refer to an attorney. Again, you are simply there to facilitate the immigration form processes.

On the following topics of this section we will go over some of the most commonly used USCIS forms in our office.