Unauthorized Practice of Law

 

Unauthorized Practice of Law Definition

•     A person who provides legal services, who is not a licensed lawyer, or who is not otherwise authorized by law to provide legal services, may be engaging in the unauthorized practice of law (UPL).

•     UPL is illegal because of the harm people may suffer if they get bad legal advice.  Nonlawyers may be untrained and inexperienced in the law.  They are not officers of the courts, are not accountable for their actions, and are not prevented from using the legal system for their own purposes to harm the system and those who unknowingly rely on them.

•     In Nebraska UPL is a crime.

Practice of law Involves:

•  Neb. Ct. R. § 3-100

•   “Giving advice. . . to another. . . as to legal rights. . . relationship of trust or reliance . . .”

•   “Selection, drafting, completion, for another. . . documents. . . Affect legal rights. . .”

•   “Representation of another. . . formal administrative adjudicative proceeding. . . legal pleadings. . . record. . . judicial review”

•   “Negotiation of legal rights. . . behalf of another. . .”

•   “Holding oneself out to another as being entitled to practice law. . .”

UPL is a Crime under Neb. Rev. Stat. § 7-101

•    “[n]o person shall practice as an attorney or counselor at law. . . either by subscribing his own name, or the name of any other person, or by drawing pleadings. . . unless . . . previously admitted to the bar. . . “

•    “No such paper shall be received or filed in any. . .proceeding unless . . . endorsement of some admitted attorney. . .”

•    “It is hereby made the duty of the judges. . . to enforce this prohibition.”

•    “Any person who shall violate. . .guilty of a Class III misdemeanor.”

Not a violation of the UPL

•    Multi-jurisdictional Practice Rule (Neb. Ct. r. 305.5)

•     (c)  A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis. . .

•    General Information

•     It is not UPL for a person to give general information about the law or legal procedures to another person

•    Representing One’s Self

•     A person may represent himself or herself in court or any other legal proceeding

•     Exception: Entities cannot have member represent them, must be licensed attorney

 

Categories of UPL Violators

 

•“Full service” UPL Provider

•Out-of-State Lawyer

•Paralegal / Legal Assistant

•Small business

•Landlords

•Fake Lawyer

•Other

 

 

Examples

Individual claims he is  a “Junior United States Attorney” on stationery and maintains a LinkedIn and Facebook pages claiming to be an attorney. He sends demand letters with this title in connection with non-existent lawsuits.

 

Individual created stationery bearing the name of a law school clinic and  wrote letters on behalf of a tenant regarding payments due for damage caused to an apartment by the tenant. Also wrote threatening letters on behalf of a divorced dad regarding child custody matter.

 

Lawyer complained of out-of-state attorney whose actions included providing samples of zoning ordinances to block the  complaining attorney’s client from establishing his live adult entertainment business in Nebraska.

 

Examples

Mother attempted to represent her son in a criminal matter, appealing his conviction, filing motions and other documents, including a claim of prosecutorial misconduct by the County Attorney. She signed documents with “POA” after her name claiming power of attorney entitled her to represent her son.

 

“Minister” claiming to have paralegal training filed a pleading on behalf of an individual (without her permission) in a guardianship matter and forged her signature.

 

Individual attempted to “negotiate” a settlement in a family business matter, after counseling his “client” to withdraw her “fair share” of the funds in the family business’ bank account.

 

Examples

Payday loan company employee drafted pleadings and motions and appeared in county court  on behalf of the company against delinquent borrowers.

 

Paralegal who is the owner of  a business that  provides tax  consulting and translation services provided immigration law advice to persons seeking employment authorization and adjustment of immigration status.

 

Individual claiming to be “Administrator” of Statewide Common Law Grand Jury”  filed pleadings and motions on behalf of a respondent who defaulted on a $200,000 loan.

 

Reporting UPL

•      Most complaints are made by attorneys, judges, and victims

 

•      File UPL Complaint Form (https://supremecourt.nebraska.gov/sites/default/files/Administration/uplappa.pdf)

 

•      Contact the Nebraska Commission on UPL

•       Shela Shanks, Counsel on Unauthorized Practice of Law

Nebraska Supreme Court

Attorney Services Division

3806 Normal Blvd.

Lincoln, NE 68506

(402) 471-3091

Shela.shanks@Nebraska.gov

UPL Commission Functions

•      In-depth Investigations and Conduct evidentiary hearings

•      Make UPL Finding or Dismiss Allegations

•      Offer Consent Agreement

•      Petition the Supreme Court

•      Partner with the Attorney General

•      Issue Advisory Opinions

Review of Complaints by Commission

•      Reviews the Complaint

•      Investigates Complaint

•      Can Request Interviews with both parties

•      Can request more information

Actions Available to Commission

•      Determine person did engage in UPL

•      Have person agree in writing to stop

•      Can refer to appropriate law enforcement agency

•      Can ask Supreme Court to order person to stop conduct

•      Issue civil injunction against person

•      Can hold person in contempt

 

•      Can dismiss complaint if:

•      Not UPL

•      Isolated incident and won’t be repeated

•      No future public harm

•      No longer engaged in UPL or in NE

•      Complainer not cooperating with investigation

Recent Cases and Public Action Taken

•      Zapata v. McHugh, 296 Neb. 216 (2017).

•      District Court dismissed action because Plaintiff engaged in UPL as Plaintiff was an assignee of LLC

•      Plaintiff was litigating claim that benefited the LLC

•      LLC cannot represent oneself pro se and therefore Plaintiff was acting as an attorney would

 

•      Steinhausen v. Homeservices of Neb., 289 Neb. 927 (2015).

•      “ A legal proceeding in which a party is represented by a person not admitted to practice law is nullity and subject to dismissal.”

•      First National Bank of Gordon, Nebraska v. Phillips, Sheridan County District Court, CI 15-32

•      “Plaintiff’s motion to strike and dismiss. . . is granted. . . all pleadings filed by . . . [person engaging in UPL] are stricken from the record. . .”

Advisory Opinion 2012-001

•      Real Estate Licensee/Broker or title company can:

•      Prepare deeds

•      Prepare releases that do not affect judgment liens

•      Prepare Deeds of Reconveyance

•      Prepare Title Affidavits

•      Prepare closing statements and related documents

 

•      Nonlawyers should use standardized forms that have blanks to be filled in

 

•      So long as no knowledge or training as an attorney is needed

 

•      No advice can be given on meaning, validity, or legal effect of documents

 

Advisory Opinion 2010-001 re: Title Insurance Agents

CAN:

•      Provide or can tell people were to get blank purchase agreement forms and other forms

•      Prepare Title Affidavits including:

•      Marketable Title Affidavit

•      Scrivener’s Affidavit

•      Name Discrepancy Affidavit

•      Use an attorney to perform functions that if completed by unlicensed person would be UPL

•      Licensed abstracter can prepare report of what has been filed

•      Register of Deeds can explain requirements to file a document

CANNOT:

•      Assist or advise in preparation of purchase agreements

•      Assist or advise on purchase agreement addendums

•      Prepare Deed of Trust, Mortgages, or Easements

•      Abstracter cannot provide opinion as to priority or validity of title

•      Register of deeds cannot provide information regarding legal effects of any document present or on statutory requirements

Timothy P. Brouillette
Unauthorized Practice of Law Commission Member