Can’t a Paralegal Just Do That? The Unlawful Practice of Law in California and the Consequences

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According to the Los Angeles County District Attorney’s office, the unauthorized practice of law makes up a large percentage of consumer complaints made to their office every year.   Complaints consist of allegations of the unauthorized practice of law, either by someone posing as an attorney who is not licensed to practice law in California or by an individual or business performing legal work.   

The most common form of unauthorized practice of law in California today involves the activities of immigration “consultants” seeking to assist recent immigrants to this country with their legal status. Immigration fraud has led to the creation of the Los Angeles Immigration Fraud Task Force through the Los Angeles District Attorney’s Office who have prosecuted over hundreds of felonies and misdemeanors related to the unauthorized practice of immigration law.  

Pursuant to Cal. Bus. & Prof. Code Section 6125, “no person shall practice law in California unless the person is an active member of the State Bar.”   In order to practice as an attorney in the State of California you must be an active member of the California State Bar.  Attorney membership is considered a “Public Record” and accessible through the State Bar’s website:  http://www.calbar.ca.gov by clicking on the “Attorney Search” link.  

Unauthorized Practice or Attempted Practice Prohibited
Based on California law, “the practice of law includes, but is not limited to, giving any kind of advice, explanation, opinion, or recommendation to a person about that person's possible legal rights, remedies, defenses, options, selection of forms or strategies.”  The unlawful practice of law is punishable by up to one year in county jail and/or a fine of up to $1000.  
California courts have found the practice of law in the following circumstances:
• Providing legal advice.      
• Preparing a trust deed
• Providing bankruptcy legal services: answering legal questions and assisting in legal decision-making that involves judgment beyond the knowledge of the average person.  
• Selection and preparation of marital dissolution documents, or legal forms related to corporate formation and bankruptcy
• Selling estate planning services (involving preparation of trusts and wills), and falsely representing that attorneys would oversee such services and prepare the documents
• Operating a phony “legal aid” business providing legal advice
• Anyone holding themselves out as being a licensed attorney even if they’re not actually providing legal services
• Providing legal advice or assistance from out-of-state to a California resident

Permissible Legal Activities by Non-Attorneys
The following are examples of activities that are not considered unlawful practice of law and that may be provided by a Non-Attorney:  
• Self-representation; a person has the right to represent himself/herself in court
• Tasks that “preparatory in nature” and that are supervised by an attorney
• An accountant negotiating a tax settlement with the federal government on behalf of his client

Resources
There are many ways to find an attorney that is an active member of the State Bar.  The following are suggestions by the California State Bar:
Attorney Public Records:  Checking an attorney’s official bar membership record on the state bar’s website:  http://www.calbar.ca.gov

Recommendations by friends, coworkers, employers, and even other lawyers or other professionals such as bankers, doctors and teachers.  

Certified Lawyer Referral Services:  look in the Yellow Pages of the local telephone directory for a list of State Bar Certified Lawyer referral services.  

Certified Legal Specialists:  the State Bar maintains a list of attorneys on their website http://www.calbar.ca.gov who are certified specialists in particular areas of law.  

Free legal aid agencies for lower income individuals:  look for agencies at:    www.LawHelpCalifornia.org

The courts in the state of California have set up an Online Self-Help Center that will help people work better with an attorney and assist you in representing yourself in some legal matters:


http://www.courtinfo.ca.gov/selfhelp/Farnaz Kashefi is an attorney with the firm of Tyler & Wilson, LLP.  She can be reached at:   fk@tyler-law.com

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