Unauthorized Practice of Law

Natalie Lindsay-SmithSenior Paralegal

OSBA Certified

Unauthorized practice of lawUnauthorized practice of law (UPL)UPL DefinedRules and RegulationsApplication for ParalegalsUPL and Paralegals - Cases

What is the Unauthorized Practice of Law?

What is the Unauthorized Practice of Law?ORC 4705.07(A)

No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an

attorney at law; (2) Represent that person orally or in writing,

directly or indirectly, as being authorized to practice law;

(3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law.

What is Unauthorized Practice of Law?

Persons not qualified nor authorized by the Ohio Supreme Court are prohibited from practicing law.

ORC 4705.1 Practice of law – prohibited acts.No person shall be permitted to practice as an

attorney and counselor at law, or to commence conduct, or defend any action or proceeding in which the person is not a party concerned, either by using or subscribing the person’s own name, or the name of another person, unless the person has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules.

Additional Ohio RulesOhio Sup. Ct. R. Gov. Bar R. VII (2)(A); (8)(B)(1), (3) and (4) Ohio Rules of Professional Conduct - Rule 5.3(b)

Attorneys that have direct supervisory authority over non-lawyers are to make reasonable efforts to ensure that those persons’ conduct is compatible with the professional obligations of the lawyer Comment [1] – Lawyers are responsible for giving

assistants appropriate instruction and supervisionOhio Rules of Professional Conduct - Rule 5.5(a) and (b)

Expressed concern about non-lawyers not qualified to provide legal services

Other References:American Bar Association (“ABA”) Model

Rules of Professional ConductRule 5.3 Responsibilities Regarding Non-

lawyer Assistance Rule 5.3(b) – a lawyer having direct supervisory

authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer

UPL Application

UPL Application - What does this mean for Paralegals?

Carefully follow and comply with all legal authority governing UPL

Work under the direct supervision of an attorney at all times

Activities of a paralegal do not constitute the practice of law as long as they are limited to work of a preparatory nature (legal research, investigation, or composition of legal documents) (See Matter of Easler, 275 S.C. 400, 272 S.E.2d 32 (1980)

When in doubt, defer to the attorney

Potential penalties for engaging in UPL - Paralegals

Possible criminal or civil penaltiesTermination of employmentRuin professional reputation

UPL Cases: Columbus Bar Association v. Thomas

Columbus Bar Assn. v. Thomas, No. 109 Ohio St. 3d 89; 2006 Ohio 1930; 846 N.E.2d 31; 2006 Ohio LEXIS 1166Columbus Bar Association filed a complaint

against a legal assistant alleging UPL; while employed by an attorney, and without the knowledge or authority of the attorney, the legal assistant independently represented clients by preparing documents and offering legal advice to others.

Legal assistant violated Gov. Bar R. VII(8)(B)(1), (3), and (4)

UPL Cases: Columbus Bar Association v. Thomas

The board recommended a $10,000 civil penalty, representing $5,000 for each count against Thomas

Final decision of the Board: $5,000 penalty and prohibited from engaging in acts constituting the unauthorized practice of law including preparing and filing in court papers to determine the legal rights of others and offering legal advice to others about how to protect those rights.

UPL Cases: Columbus Bar Association v. Purnell

Columbus Bar Association v. Purnell, 94 Ohio St. 3d 126 (Ohio 01/09/2002)Paralegal, without authority nor under the

direct supervision of an attorney, advises and represents a claimant in a personal injury matter Paralegal took a printed form and manually deleted

the word “reasonable attorney fee for the attorney’s services” and replaced it with the phrase “reasonable paralegal fee for the services”

Paralegal entered into an agreement with the parent of the minor child for representation in a personal injury claim

UPL Cases: Columbus Bar Association v. Purnell

Columbus Bar Association filed a complaint charging UPL

Purnell failed to respond to the complaint and the matter was referred to the Board of Commissioners on UPL

Board determined that, given the facts, Purnell engaged in UPL and recommended prohibition from engaging in UPL in the future

Ohio Supreme Court adopted the Board’s findings, conclusion and recommendation

UPL Cases: Columbus Bar Association v. Purnell

Purnell is enjoined from any further activities that could constitute UPL

Costs taxed to Purnell

UPL Cases: Cleveland Metropolitan Bar Association v. Davie et al.

Cleveland Metro. Bar Ass’n v. Davie, 2011-1681, Supreme Court of Ohio, 2012 Ohio 4328; 2012 Ohio LEXIS 2404, September 27, 2012Cleveland Metropolitan Bar Association

(“CMBA”) filed a complaint against Davie and his company Alpha Legal Services, Inc. (“ALS”) for UPL Michael D. Davie, a paralegal, engaged in UPL by

preparing pleadings and other documents on behalf of other people; appearing at parole hearings on behalf of other people

UPL Cases:Cleveland Metropolitan Bar Association v. Davie et al.

Davie and ALS enjoined from further acts constituting unauthorized practice of law

Civil penalty of $30,000 was imposed on both Davie and his company

UPL Cases:Other cases of interest:

Cleveland Bar Association v. Para-Legals, Inc., et al., 106 Ohio St. 3d 455; 2005 Ohio 5519; 835 N.E.2d 1240; 2005 Ohio LEXIS 2496

Cleveland Bar Association v. Coats, D.B.A. Para-Legal Services 98 Ohio St. 3d 413; 2003 Ohio 1496; 786 N.E.2d 449; 2003 Ohio LEXIS 914

Akron Bar Association v. Greene et al., 77 Ohio St. 3d 279; 1997 Ohio 298; 673 N.E.2d 1307; 1997 Ohio LEXIS 22

Cleveland Bar Association v. Compmanagement, Inc., et al., 104 Ohio St. 3d 168; 2004 Ohio 6506; 818 N.E.2d 1181;2004 Ohio LEXIS 2887

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