Everyone concedes that only licensed lawyers can practice law, but that statement begs an important question: what does it mean to “practice law”? The question is not an academic one, as the California legal marketplace fills with non-lawyers providing services that only lawyers used to provide. “Legal document assistants,” for example, now help people fill out court forms. Lawyers and legal professionals from outside California, and indeed outside the United States, use the Internet to find freelance legal work drafting contracts and other legal documents. A number of companies use software to create wills, articles of incorporation, and contracts for people, based on data their clients input into their website.
These outside lawyers, non-lawyer professionals, and companies strongly prefer a narrow definition of the term “practice of law,” so they can expand the range of services they can provide. Consumers are tempted to use these alternatives to California lawyers in order to save on legal fees, and rely on these alternatives to be honest as to the services they can and cannot legally provide. The result is constant pressure on the line that divides the activities constituting the practice of law from the activities that do not. Given that the unauthorized practice of law is illegal, however, it serves everyone’s interest to know exactly what constitutes the “practice of law,” and who may legally perform various law-related tasks.
This article begins a series on the unauthorized practice of law in California. It first confirms that the practice of law in California is generally restricted to lawyers who are active members of the California State Bar. It then addresses the more difficult question of what constitutes “the practice of law” in California, and identifies the broad range of activities that can only be performed by active State Bar members. Despite the position of many non-lawyers, California law makes clear that most activities in the legal arena in California must be performed by a California lawyer or under that lawyer’s supervision. Non-lawyers who perform any of these tasks are thus squarely violating California law.
Who May “Practice Law” In California.
The practice of law in California is generally restricted to lawyers who are active members of the California State Bar. Cal. Bus. Prof. Code § 6125. This restriction helps assure the competency of the people who provide legal services. J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969, 22 Cal.Rptr.2d 527. While California law recognizes and regulates other types of legal professionals, none of those professionals can practice law without the supervision of a licensed State Bar member. Neither “legal document assistants” nor “unlawful detainer assistants” may practice law, for example. Cal. Bus. Prof. Code § 6411(d). “Paralegals” operate under an identical restriction. Id. § 6450(b)(5). Even lawyers who are licensed elsewhere may not practice law in California. Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (1998) 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1. The unauthorized practice of law is also a crime. Cal. Bus. Prof. Code § 6126.
This restriction does not apply to the practice of federal law, however, since state law does not govern the practice of law before federal courts and agencies. Sperry v. Florida (1963) 373 U.S. 379, 83 S.Ct 1322, 10 L.Ed.2d 428; see also Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 38 Cal.Rptr.3d 759, 768-69 (California Bar may not take over federal practice of lawyer who resigned from bar but continued to practice before federal agencies). Federal courts and agencies, however, generally restrict the practice of law to licensed attorneys. For instance, only attorneys licensed in California may generally practice before the federal district courts there. N.D. Cal. Civ. L.R. Civ. 11-1(b); E.D. Cal. L.R. 83-180(a); C.D. Cal. L.R. 83-2.2.1; S.D. Cal Civ. L.R. 83.3 c.1.a. While federal law recognizes the profession of “bankruptcy petition preparers,” those professionals may not provide legal advice, 11 U.S.C. § 110(e)(2), and may not practice law. In Re Reynoso (9th Cir. 2007) 477 F.3d 1117, 1125. In addition, only licensed attorneys can practice before the United States Patent and Trademark Office in trademark matters, absent certain exceptions. 37 C.F.R. § 11.14.
The exceptions to these general rules usually pertain to specialized courts or proceedings, where a statute or regulation allows for non-lawyer participation. See, e.g. Cal. Labor Code § 5700 (authorizing lay representation before Workers Compensation Appeals Board); Cal. Welf. & Inst. Code § 10950(same for applications for hearings to review certain decisions regarding public social services); 37 C.F.R. § 11.6 (non-attorney “patent agents” can prepare and prosecute patent applications); U.S. Tax Court Rules Prac. & Proc. 200(a)(3) (nonlawyers may practice before Tax Court upon passing examination). In addition, out-of-state lawyers may practice before a California court or arbitration panel once they are admitted pro hac vice. Cal. Rules Court 9.40 (courts); id. Rule 9.43 (arbitrations). The federal courts also have procedures for pro hac vice admissions. See, e.g., N.D. Cal. Civ. L.R. 11-3.
The Three Types of Activities That Constitute The Practice of Law.
The notion of “practicing law” is not defined by California statute. The courts, however, have held that the “practice of law” includes three types of activities. First, it includes services provided in a lawsuit or similar proceeding. Second, it includes the giving of legal advice. Third, it includes the preparation of documents that secure legal rights. Birbrower, supra, 17 Cal.4th at 128 (citing People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535, 209 P. 363. In determining whether particular services constitute the practice of law, courts look at substance over form, and disregard disclaimers saying that no attorney-client relationship exists between the parties. Benninghoff, supra, 136 Cal.App.4th at 73 & n.10.
The courts have broadly interpreted the scope of these three activities. In terms of lawsuits and similar proceedings for example, non-lawyers cannot appear in court for third parties. Drake v. Superior Court(1994) 21 Cal.App.4th 1826, 1830-31, 26 Cal.Rptr.2d 829. They also cannot represent people before administrative agencies, absent explicit authorization by statute or agency regulation. Benninghoff, supra, 136 Cal.App.4th at 764. They cannot act as counsel in the planning of pre-litigation strategy. Birbrower, supra, 17 Cal.4th at 131. They cannot draft pleadings or court papers for third parties. Morgan v. State Bar (1990) 51 Cal.3d 598, 603-04, 274 Cal.Rptr 8, 797 P.2d 1186 (preparing documents in dissolution of marriage). They may not negotiate with opposing counsel. Id. at 603-04. Even writing a letter on a client’s behalf can be the practice of law. Hitchcock v. State Bar (1989) 48 Cal.3d 690, 701, 257 Cal.Rptr. 696, 771 P.2d 394. Indeed, non-lawyers cannot even choose the forms needed for routine proceedings, or help a third-party decide how the forms should be filled out. People v. Landlords Professional Services (1989) 215 Cal.App.3d 1599, 1608-09, 264 Cal.Rptr 548.
The California courts have also held that giving legal advice is the practice of law. Bluestein v. State Bar of California (1974) 13 Cal.3d 162, 173-74, 118 Cal.Rptr. 175, 529 P.2d 799. This is true even if the advice does not concern California law. Id. In general, people “practice law” whenever they research difficult questions that “reasonably demand the application of a trained legal mind,” and then give advice based on that research. Agran v. Shapiro (1954) 127 Cal.App.2d.Supp.807, 818. However, one also practices law when giving advice in connection with a relatively simple proceeding. Landlords Professional, supra, 215 Cal.App.3d at 1608-09 (advice in connection with unlawful detainer actions).
The judicial interpretation of “practicing law” when preparing legal documents is similarly broad. For instance, non-lawyers cannot draft wills for third parties. Biakanja v. Irving (1958) 49 Cal.2d 647, 651, 320 P.2d 16. They also cannot prepare living trusts. People v. Fremont Life Ins Co. (2002) 104 Cal.App.4th 508, 128 Cal.Rptr.2d 463. They cannot choose the form of deed for a transaction to which they have no connection. People v. Sipper (1943) 61 Cal.App.2d.Supp 844, disapproved on other grounds, Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 n.11, 124 Cal.Rptr. 204, 540 P.2d 44. Negotiating and preparing contracts for third parties also constitutes the practice of law. Simons v. Steverson (2001) 88 Cal.App.4th 693, 106 Cal.Rptr.2d 193, 208-09; In Re Garcia (9th Cir. Bankr. App. Panel 2005) 335 B.R. 717, 727-728. As such, the role of non-lawyers in these sorts of activities is extremely limited.
The practice of law in California is generally restricted to active members of the California State Bar. In addition, the California courts have expansively defined the “practice of law” to include much more than court appearances. As such, the “practice of law” includes the drafting of court papers, the preparation of legal papers, providing legal advice, and most activities that require the application of law to fact in a specific situation. People who are not licensed California lawyers but provide these kinds of services thus risk engaging in the illegal and unauthorized practice of law.