Unauthorized Practice of Law for Elders and Immigrants
Posted on Sep 07, 2012
In our Trust and Estate Department, we have noticed that there are individuals and organizations that advise elders on how to structure their assets to achieve certain family planning goals. While these goals may involve avoiding having to open a probate after the elders’ death or arranging the elders’ assets so that they qualify for Medicaid or some other state or federal benefit, we believe that giving such advice involves the practice of law.
The unauthorized practice of law (UPL) is a particular problem in the immigration area, where local “notarios” claim to be able to offer legal advice or help the non-citizen fill out forms to apply for benefits. It is clear that such notaries are practicing law, and the American Immigration Lawyers Association has published consumer protection brochures that suggest complaining to the local bar association, consumer protection advocate, or prosecutor for advice. Some instances of UPL could be prosecuted as fraud, and fees and damages recovered in civil litigation.
To try to foster a state-wide contemplation on this topic, hereafter is a rule currently under study by the Vermont Supreme Court with regard to the unauthorized practice of law:
Supreme Court Rules of Professional Practice
Rule __ Authorization to practice law.
(a) Except as set forth in subsection (c) of this Rule, only a person who is an active, licensed member of the Vermont Bar in good standing ( a “Vermont Lawyer”) may engage in the practice of law in Vermont, or claim to be authorized to practice law in Vermont.
(b) For purposes of this Rule:
(b)(1) The “practice of law” is the representation of the interests of another person by informing, counseling, advising, assisting, advocating for or drafting documents for that person through application of the law and associated legal principles to that person’s facts and circumstances.
(b)(2) The “law” is the collective body of declarations by governmental authorities that establish a person’s rights, duties, constraints and freedoms and consists primarily of:
(b)(2)(A) constitutional provisions, treaties, statutes, ordinances, rules, regulations and similarly enacted declarations: and
(b)(2)(B) decisions, orders and deliberations of, adjudicative, legislative and executive bodies of government that have authority to interpret, prescribe and determine a person’s rights, duties, constraints and freedoms.
(b)(3) “Person” includes the plural as well as the singular and legal entities as well as natural persons.
(c) Whether or not it constitutes the practice of law, the following activities by a person who is not a Vermont Lawyer are permitted:
(c)(1) Making legal forms available to the general public, whether by sale or otherwise, or publishing legal self-help information by print or electronic media, not specific to another person’s facts or circumstances.
(c)(2) Providing to another person general information, opinions or recommendations about possible legal rights, remedies, defenses,
procedures, options or strategies not specific to that person's facts or circumstances.
(c)(3) Providing assistance, other than representation before a court or other tribunal, in seeking protection from harassment or domestic violence or abuse when no fee is charged to do so.
(c)(4) When expressly permitted by the court, assisting one’s minor child or one’s ward in a court proceeding.
(c)(5) When expressly permitted by the court, representing a natural person, without compensation, in small claims court, or in an arbitration proceeding where the amount in controversy does not exceed the jurisdictional limit of the small claims court.
(c)(6) Informing, counseling, advising, or drafting documents for, a legal entity as an employee of that entity, acting within the scope of one’s employment; provided that a person performing such tasks who is not a Vermont Lawyer, or that person’s employer, may not publish information that suggests that such person is a Vermont Lawyer.
(c)(7) When expressly permitted by the mediator, representing a party in any mediation proceeding
(c)(8) When expressly permitted by an administrative tribunal or agency, or as authorized by tribunal or agency rule or practice, acting as a representative before such tribunals or agencies.
(c)(9) Serving as a mediator, arbitrator or conciliator.
(c)(10) Representing a corporation in court pursuant to 11A V.S.A., Section 3.02 (1).
(c)(11) Participating in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements or as otherwise allowed by law.
(c)(12) Lobbying governmental bodies as an agent or representative of others.
(c)(13) A lawyer licensed in a jurisdiction other than Vermont may engage in the practice of law, provided that such practice is limited to the application of the law and associated legal principles of jurisdictions in which he or she is licensed to practice.
(c)(14) When expressly permitted by the court, pursuant to procedures for admission pro hac vice, a lawyer licensed in a jurisdiction other than Vermont may appear in Vermont courts.
(c)(15) Advising or preparing documents for others in the following described circumstances and by the following described persons
(c)(15)(A) A real estate agent or broker licensed by the State of Vermont (a “real estate licensee”) may insert informational data into contract forms, including addenda forms, provided that the real estate licensee has a valid agency relationship with the buyer or seller concerning the transaction, and further provided that the forms: (a) were drafted by a Vermont Lawyer; (b) are directly related to the sale or purchase of real estate and personal property; and (c) contain in prominent type of at least 12 point the following language: “Notice. This document involves important legal rights and obligations. Consultation with an attorney is encouraged before signing.” Informational data is limited to data which does not alter the terms and conditions of the form, but is specific to the transaction at issue such as: names and addresses; property description; purchase price; details of any proposed financing contingency; contingency dates and closing date.
(c)(15)(B) An engineer or architect licensed by the State of Vermont (a “design professional licensee”) may prepare contract forms directly related to the design and construction of improvements to real estate which they are designing for their clients, provided that the forms contain in prominent type of at least 12 point the following language: “Notice. This document involves important legal rights and obligations. Consultation with an attorney is encouraged before signing.”
(c)(15)(C) a title insurance agent licensed by the State of Vermont may issue real estate title insurance commitments and policies.
(c)(15)(D) an employee of a financial institution, or a securities broker or dealer licensed by the State of Vermont may inform customers with respect to their options for titles of securities, bank accounts, annuities and other investments.
(c)(15)(E) an employee of an insurance company, or an insurance agent licensed by the State of Vermont, may recommend coverage, inform customers with respect to their options for titling of ownership of insurance and annuity contracts, the naming of beneficiaries, and the adjustment of claims under the company’s insurance coverage outside of litigation.
(c)(15)(F) an employee of a health care provider, non-profit organization or governmental agency may provide clerical assistance to patients in completing and executing advance directives for health care when no fee is charged to do so.
(c)(15)(G) a Certified Public Accountant, enrolled IRS agent, public accountant, public bookkeeper, or tax preparer may prepare tax returns.
(d) Notwithstanding that a person’s activities are excluded from the definition of unauthorized practice of law by paragraph (c), above, when engaged in the practice of law such person’s conduct shall be held to the standard of a reasonable and prudent Vermont Lawyer.
“Active” in this paragraph refers to the formal status of a lawyer, as determined by the Vermont Supreme Court. Among other things, an active lawyer must comply with requirements for continuing legal education.
The practice of law defined in Subparagraph (b)(1) includes: giving advice or counsel to another person as to that person’s legal rights or responsibilities with respect to that person’s facts and circumstances; selecting, drafting or completing legal documents that affect the legal rights or responsibilities of another person: representing another person before an adjudicative, legislative or executive body, including the preparation or filing of documents and conducting discovery; negotiating legal rights or responsibilities on behalf of another person. Because representing oneself does not involve another person, it is not technically the “practice of law.” Thus, any natural person may represent oneself as an individual in any legal context. Similarly, an employee of a business entity is not engaged in “the representation of the interest of another person” when activities involving the law are a part of the employee’s duties solely in connection with the internal business operations of the entity and do not involve providing legal advice to another person. Further, a person acting in an official capacity as an employee of a government agency that has administrative authority to determine the rights of persons under the law is also not representing the interests of another person. As defined in subparagraph (b)(2),“the law” is a comprehensive term that includes not only the black-letter law set forth in constitutions, treaties, statutes, ordinances, administrative and court rules and regulations, and similar enactments of governmental authorities, but the entire fabric of its development, enforcement, application and interpretation. Laws duly enacted by the electorate by initiative and referendum under constitutional authority would be included under subparagraph (b)(2)(A).
Subparagraph (b)(2)(B) is intended to incorporate the breadth of decisional law, as well as the background, such as committee hearings, floor discussions and other legislative history, that often accompanies the written law of legislatures and other law and rule-making bodies. Reference to adjudicative bodies in this subparagraph includes courts and similar tribunals, arbitrators, administrative agencies and other bodies that render judgments or opinions involving a person’s interests.
To the extent not already addressed by the requirement that the practice of law involves the representation of others, subparagraph (c)(2) permits the direct and indirect dissemination of legal, information in an educational context, such as legal teaching and lectures.
Subparagraph (c)(3) permits assistance provided by employees of the courts and legal-aid and similar organizations that do not charge for providing these services.
Subparagraph (c)(7) applies only to the procedures directly related to parties’ ‘involvement before a neutral third-party mediator: it does not extend to any related judicial proceedings unless otherwise provided for under this rule (e.g., under subparagraph (c)(5)).
Subparagraph (c)(15) recognizes that there are activities that fall within the definition of the practice of law that have traditionally been performed by non-lawyers. Because the intent of this rule is to safeguard the consumers of legal services, these specific areas of law practice are open to people who are not Vermont Lawyers provided the identified safeguards are in place.
This section confirms that, although people who are not Vermont Lawyers are not engaging in the unauthorized practice of law when they engage in the activities listed in Subparagraph (c), to the extent they are engaging in the practice of law their actions will be evaluated by the same standard as the actions of a Vermont Lawyer. The intent of Subsection (d) is to establish a standard of care for negligence purposes.