UPL

UPL? Watch For These Red Flags
By Vicki Voisin, ACP

Generally, the practice of law is defined as giving legal advice or opinions to others or representing others in legal matters. However, there is no single complete definition of the practice of law. 

Every state defines the practice of law by statute. These statutes, as well as the rules and cases that define the practice of law, are continually changing and evolving.

It's interesting to note that an ABA task force specifically directed to prepare a model definition of the practice of law abandoned its task in March 2003. The members of the task force could not come to an agreement on the definition.

While the actual definition is difficult to pin down, one thing is certain: the unauthorized practice of law is a criminal offense and usually a misdemeanor. UPL does not apply only to nonlawyers who deliver legal services directly to the public. Attorneys can commit UPL. Paralegals working under the supervision of an attorney can commit UPL as well if they are not properly supervised, set fees, give legal advice or appear in court. 

Attorneys must be licensed by the state where they practice law. An attorney who practices law outside the jurisdiction where he or she is licensed is committing UPL. Thus, if a client wants to transfer title to real property in Florida but the attorney is licensed to practice only in Minnesota, you should seek assistance from counsel in Florida.

Only attorneys may represent clients in court. While some administrative agencies allow nonlawyers to represent persons before them, this is not so with most courts. 

There was a New Jersey case involving a New Jersey attorney who actually sent his paralegal to a court hearing where she advocated for a client. The Disciplinary Review Board is urging censure for this attorney. This paralegal committed UPL while working under the supervision of an attorney. (See In the Matter of Neal M. Pomper, Docket No. DRB 08-237) 

Only attorneys may set fees. Setting fees is an important step in establishing the attorney-client relationship. For this reason, only the attorney may decide what the client will be charged for his or her services. Even if there is a standard fee schedule, it is still up to the attorney to evaluate the case and set the fee. Nonlawyers may relay the information about the fees once the attorney provides that information. 

Only attorneys may sign pleadings or correspondence that offers legal advice.Nonlawyers may sign correspondence that relays procedural information. An exception is the State of North Carolina where nonlawyers may sign pleadings in emergency situations.

Only attorneys may give legal advice. This includes directing or recommending a course of action with legal consequences (such as 'You should accept the offer of $1500 offered by the cruise ship for your broken tooth.'); evaluating the probable outcome of a legal matter (such as 'Your claim against XYZ corporation will probably net you a seven figure settlement.') or interpreting statutes, decisions and legal documents.

Your challenge: Know that you may relieve the attorney of many duties. You may relay the attorney's advice to the client, draft pleadings and do legal research that requires legal interpretation. In these situations, it is the attorney who makes the legal judgment. Your are involved only in the assessment of the situation and implementing the attorney's decisions.

Be sure to study case law in your jurisdiction and become familiar with the Rules of Professional Conduct, Ethics Opinions, and case law. Also, attend ethics courses annually so that you will be up to date on the latest ethics education. All of this knowledge will help prevent you from being involved in the unauthorized practice of law.

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©2011 Vicki Voisin, Inc.

Do you want to use this article in your newsletter, ezine or Web site? You can so long as you include this entire blurb with it: Vicki Voisin, "The Paralegal Mentor", delivers simple strategies for paralegals and other professionals to create success and satisfaction by achieving goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a weekly ezine titled Paralegal Strategies and co-hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network. More information is available at http://www.paralegalmentor.com. 

Chapter one review questions. Family law for the paralegal by Wilson

REVIEW QUESTIONS

1. Describe five of the ways in which the nature of family law practice has changed over the past fifty years.
   You do not have to have a reason to divorce now i. e. "No Fault Divorce". It used to be the biological parents had all the rights to the children even if somebody else like a grandparent was raising them but now there are grandparent rights and "psychological parents" have rights that can be addressed in Divorce or custody cases. The Ability of same sex couples to marry in some states it was not to long ago when different races could not marry. The sexes are treated more uniformly now it is not always the mother who gets custody of the children and the father might even get spousal support. Reproductive technological advances have made it possible for same sex couples to have children using just their shared DNA now the law must catch up and redefine what a mother and father is and how to deal with that custody issue.
   
2. Define family law and identify the kinds of issues that are addressed in a family law practice. Family law deals with the forming and dissolution of a family or marriage. Some of the things other than marriage and divorce are deciding custody of minor children, spousal support, prenuptial agreements, cohabitation agreements and adoption.
   
3. Describe the role of a paralegal in a family law practice. Depending on the size of the practice the role can be doing everything secretarial interviewing clients to drafting appellate briefs
   
4. Identify the primary purposes of an initial client interview. To screen for conflicts of interest, to see if the matter to be handled is in the scope of the attorneys knowledge and if the client is a good fit.
   
5. Describe the characteristics of effective fee agreements, and identify the various types of fee agreements that may be used in divorce cases. The agreements plainly state the responsibilities of the lawyer and the client and how the fee will be determined. It might be a flat rate for something a lawyer does commonly like an uncontested divorce without children. Or an hourly rate depending on the whose services are utilized such as a paralegal or lawyer. Also all other costs to be borne by the client. It is common for the Lawyer to collect payment up front in the form of a retainer and the fees will be deducted from that amount and the difference returned or more collected.
   
6. Define unbundled legal services. When the lawyer only does part of the work and the client acts for themselves or "pro se' or "pro per" Latin for "for ones self" It takes a special fee agreement outlining the limited scope of the attorneys work.
   
7. Identify the kinds of resources included in a basic family law library. It should consist of the State statutory code, court rules, case law, Practice Manuals like the ICLE guides, Form books, legal dictionary, citation manual and legal newspapers.
   
8. Define jurisdiction in both of its basic meanings. 1 the geographical area in which the court has jurisdiction over. Like the Supreme court of Michigan has jurisdiction over things that occur in Michigan. 2 What people, type of legal matter or things. Like Wills are handled by the probate court.
   

1. Define and distinguish among subject matter, personal, and in rem jurisdiction.
   An example of Subject matter would be like are circuit courts ability to hear Civil and Criminal cases. An example of personal jurisdiction would be the courts ability to force an individual to pay child support and if they do not, then to put them into jail. The court must first notify the person of the pending action usually using a process server but can also be by the mail or posting in a newspaper. In Rem jurisdiction applies to State of Michigan's power over property inside of it borders,
   

Identify at least ten ethical "dos" that should guide the professional conduct of paralegals.
Do: Communicating with client

Do: Researching legal issues with attorney supervision

Do: Let client know from start you are not a lawyer and can not give advice

Do: Give client factual information

Do: Recognizing and avoiding conflicts of interest

Do: Protecting client secrets

Do: Observing ethical guidelines

Do: Join Paralegal organizations

Do: Continuing education

Do: Become certified.

 

1. Define and give an example of the unauthorized practice of law. If you give any advice on what to do in or on a legal matter. An example would be telling someone to file a certain form with the court.
   
2. Describe at least three kinds of conflicts of interest that paralegals encounter in the family law setting. Someone in the law firm has handled a matter opposing this particular client. If you have such a strong bias or aversion to some one you can not objectively represent them ( I could not represent some one I thought to be a pedophile for instance).
   

   Where you have a financial interest in the matter
   

3. Describe the nature and purpose of an "ethical wall." If someone in the firm has a conflict of interest from a previous job you put up an ethical wall where that person does not talk about anything they know and are not allowed to know or see anything
   
4. Distinguish between the attorney-client privilege and the ethical rule of attorney-client confidentiality. In the attorney-client privilege the client has to give permission for the attorney to give evidence about what they talked about with few exceptions.
   

   The ethical rule of attorney – client confidentiality is outlined in professional codes of ethics the codes say the attorney may not ethically reveal any information about the case, client or preparation of the case if the information was given while seeking legal advice. There are some exceptions such as if they spoke in front of a third person when talking to the lawyer. Or if the lawyer needed to use the information to defend himself in a legal action. Or if not telling will cause great bodily harm to someone.

Transmittal for 234-01

2/2/2011

 

Via Hand Delivery

 

 

Kellogg Community College

Paralegal Course 234 section 01

Instructor Susan M. McCabe, J.D.

450 North Avenue

Battle Creek, Michigan 49017-3397

 

Re: Assignment: Chapter 1 Review questions

 

Dear Ms. McCabe:

 

    As requested by the Course Materials Packet for PARA 234 Section 01, please find enclosed a copy of The Chapter 1 review questions and answers. That is due on today's date Wednesday, February 02, 2011 at the beginning of class.

 

Please review the assignment at your convenience and return it to me at a future class session.

 

If any additional information is required I would be pleased if you would contact me at 269-580-8889 or by email at k0018598@kellogg.edu.

 

 

Sincerely

 

 

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Paralegal Student ID # 7676

 

 

Enclosure