What Counts as Practice

What Counts as Practice

Model Rule 5.5(a) forbids a lawyer to practice law in a jurisdiction in violation of that jurisdiction’s regulation of the legal profession, and it forbids helping anyone else do so.¹ The rule never says what practicing law means, yet both prongs depend on the answer. If an activity falls inside the definition, a lawyer needs the jurisdiction’s authorization to do it and violates the rule by assisting someone who lacks that authorization. If it falls outside, neither prong applies. For work that is practice, one more question remains, because some of it is lawful for nonlawyers when the jurisdiction authorizes it.

This unit follows that order: how far the definition reaches beyond the courtroom, where general information ends and tailored advice begins, and which practice the law permits nonlawyers to perform. The subject throughout is work done for someone else. A person handling his or her own affairs raises no unauthorized-practice issue.

Critics doubt that the definition should reach as far as it does, and the doubt is worth knowing before applying it. The rationale for restricting unauthorized practice is protection of the public, and the question is whether the restrictions sweep too broadly. A study of New Jersey residential closings found no greater rate of error when real estate brokers or title companies handled them (permitted in South Jersey) than when lawyers did (required in North Jersey), yet North Jersey closings cost about $800 more on average. See In re Opinion No. 26, 654 A.2d 1344, 1359 (N.J. 1995). Some tasks plainly demand specialized legal training, but routine documents such as residential leases, simple wills, and uncontested divorce petitions without children may be within a nonlawyer’s competence. A lawyer still has to understand how far the restrictions reach, including for the people the lawyer employs or retains.²

Breadth of the Definition

Rule 5.5(a) leaves the definition of practicing law to each jurisdiction’s regulation of the profession, so the breadth of the local definition sets the outer edge of the prohibition.³ A standard definition describes the professional work of a licensed lawyer as conducting cases in court, preparing the papers that carry out transactions (from conveying land to effecting corporate mergers), writing legal opinions, drafting wills and other estate-planning documents, and advising clients on legal questions. It also reaches work that few lawyers do but that requires legal expertise, such as drafting legislation and court rules.⁴

Courtroom work is one entry on that list. The entries share a feature: each calls for legal expertise and puts it to work on someone else’s affairs. That feature yields the working test for this unit. An activity is likely the practice of law when it requires legal knowledge and experience and applies them to another person’s specific rights and obligations. The test follows the reason for the monopoly. A flawed will or contract can injure a client as badly as a flawed pleading, and in either case the client relies on someone else’s legal judgment about the client’s own position. A definition tied to the courthouse would leave most of that reliance unprotected.

Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court shows the definition at work. New York lawyers represented a California client in an arbitration held in California, and the court held that California authorization was required. The result is counterintuitive: a nonlawyer would have been authorized to appear as a representative in the arbitration, yet an out-of-state lawyer still needed to be authorized to practice in California before appearing.⁵ An arbitration is not a court, so the case also shows that the prohibition does not stop at the courthouse door.

The definition answers only what counts as practice. It does not say where the practice occurred. In Fought & Co. v. Steel Engineering and Erection, Inc., 951 P.2d 487 (Haw. 1998), the Hawaii Supreme Court reasoned that Hawaii’s restrictions bind legal services only if the services were rendered “within the jurisdiction.” It called that question one of first impression, to be resolved by weighing interjurisdictional practice against the need for a state-regulated bar.⁶ This chapter returns to that territorial question in the sections on lawyers across state lines.

Some services with a strong legal flavor, such as preparing tax returns, preparing certain documents incident to a real estate transaction, and lobbying the legislature on legally permeated matters, may be performed by nonlawyers. Yet all of them may be regarded as the practice of law in at least some jurisdictions when a lawyer performs them.⁷ The two classifications are not parallel. Permission for nonlawyers does not decide how a lawyer’s work is classified, and the lawyer’s conduct may remain subject to the professional conduct rules. Courts do not agree on the point. In United States v. Frederick, a federal court of appeals declared that preparing a tax return is accountants’ work and, even when a lawyer does it, amounts to nothing more than “lawyers . . . doing nonlawyers’ work.”⁸

Information Versus Advice

A definition wide enough to reach advice, drafting, and negotiation needs an outer edge, and the edge falls at general information addressed to the public. A nonlawyer may write a book about defamation law, but may not tell a neighbor whether the neighbor has a viable defamation claim over a rumor.¹⁰ The subject matter is identical in both cases, so asking whether the topic is legal gets nowhere. The question that separates them is whether the words were applied to one person’s situation.

Two reasons support the line. The first is speech: if general information counted as practice, UPL commissions would face First Amendment complaints, because every author and teacher who explained the law to the public would be practicing without a license.¹¹ The second is reliance. A book says the same thing to every reader and judges no one’s facts, and each reader decides alone whether it fits. Advice about one person’s rights is different. That person acts on it, usually unable to test it, and the cost of an error falls on the one who cannot detect it. Reliance of that kind is the risk that licensing and professional discipline exist to manage.

The same boundary governs do-it-yourself legal publishing. Books and computer programs that let laypeople create their own legal documents generally do not constitute unauthorized practice, and lawyer-drafters may take part in preparing them.¹² A vendor selling a blank will form with generic instructions says the same thing to every buyer, applies the law to no one’s facts, and leaves each buyer to complete the document alone. Personal help changes the analysis. Including a telephone number or e-mail address through which a customer can reach a lay person for help in completing the forms is a form of unauthorized practice, and a lawyer cannot be involved in such an enterprise.¹³ The person who answers must decide which option fits the caller’s circumstances and what belongs in each blank, and those decisions apply law to one customer. The point ties the information boundary to the second prong of Rule 5.5(a): a lawyer who helps build such an enterprise assists another’s unauthorized practice.¹⁴

These calls are not always easy. Lawyers cannot abet unauthorized practice, which is often a gray area, so a lawyer must make an informed judgment about whether the conduct involved is unauthorized practice. That judgment lets the lawyer avoid ethical and legal liability and advise the client about the risks.¹⁵ Jurisdictions also differ on how far to restrict help of this kind. The Restatement reports that several jurisdictions recognize that nonlawyers can provide many such services without significant risk of incompetent work, and at a much lower price than a lawyer’s fee.¹⁶

The dental-board decision shows why the placement of the line matters beyond professional ethics. A state dental board tried to keep nondentists from whitening teeth, and the Supreme Court held that the board was not immune from antitrust liability because it was not a state actor or actively supervised by the state. The ruling is unlikely to affect UPL enforcement to the extent state courts promulgate the regulations, but it displays the anticompetitive effect of reserving certain services to one professional group.¹⁷ As AI-enabled platforms offer legal services more widely, state regulators will have to decide whether the technology amounts to the practice of law by a nonlawyer.¹⁸ The functional line supplies the question: does the service give every user the same material, or does it take one user’s facts and return a conclusion about that user’s rights? Where a given service falls remains unsettled, and an exam answer should say so instead of assuming a rule.

Authorized Nonlawyer Activity

Rule 5.5(a) bars practice only when it violates the jurisdiction’s regulation of the profession, so an activity can fit the functional definition and still be lawful.²⁰ The comments to Rule 5.5 add that when federal or state law authorizes the provision of services, the rule does not contradict that authorization.²¹ The analysis therefore runs in two steps. The first asks whether the activity is practice. The second asks, for an activity that is, whether some source of law authorizes this person to do it here. An analysis that stops after the first step would brand a small-claims representative as a lawbreaker even though the jurisdiction has granted the permission.

The permissions rest on a judgment about cost and access. The Restatement notes that jurisdictions recognize that many legal services can be provided by nonlawyers without significant risk of incompetent service, that experience in several states shows no significant risk of harm to consumers, and that many people can ill afford the typically higher cost of lawyers.²² Each permission reaches only the activity and setting its source describes.

Litigation shows the pattern. Representing another person in litigation is generally proscribed, but many jurisdictions recognize exceptions for small-claims and landlord-tenant tribunals and for certain proceedings in administrative agencies. Many also authorize law students and others not locally admitted to represent indigent persons or others as part of clinical legal education programs.²³ Each exception attaches to a type of tribunal or program, so the permission does not follow the representative into an ordinary trial court.

Professional and private settings supply other permissions. Preparing tax returns, preparing certain documents incident to a real estate transaction, and lobbying the legislature on legally permeated matters may be performed by nonlawyers.²⁴ In Birbrower, a nonlawyer would have been authorized to appear as a representative in the arbitration, yet the out-of-state lawyer still needed California authorization.²⁵ Permission is therefore personal and specific. It did not carry over to a lawyer who held a license only in another state. Federal tribunals follow the same logic. Rule 5.5(d)(2) recognizes a federal court’s admission of an out-of-state lawyer, on a regular or pro hac vice basis, and does not treat the lawyer’s appearance in that matter as unauthorized practice.²⁶

Step three does the real work on exam stems. A stem that shows a nonlawyer doing legal work usually supplies a permission in one setting and then moves the activity to another, so the question is whether the permission follows. It does not. A license from another state is likewise no source of authorization in this one, as the first prong of Rule 5.5(a) shows.