An earlier post established that only active members of the California State Bar have a general right to “practice law” in that state, and that the “practice of law” included many activities far removed from the courtroom. Among other things, the “practice of law” includes the drafting of wills and contracts, the conducting of legal research the giving of legal advice, and the selection of legal forms for even routine matters.
This post addresses the converse question. It examines what law-related activities that non-lawyer professionals can legally perform without engaging in the illegal and unauthorized practice of law. It first discusses the seminal decision in People v. Landlords Professional Services (1989) 215 Cal.App.3d 1599, 264 Cal.Rptr 548, and the restrictions that decision imposes on non-lawyers. It then discusses the California regulatory scheme for non-attorney professionals, which essentially codifies the holdings in Landlords Professional. Read together, these authorities reinforce the idea that the non-lawyer’s role in the legal field is narrowly drawn, and that the non-lawyer can act as little more than a scrivener without an attorney’s supervision. Non-lawyers certainly cannot independently draft pleadings, agreements, or other legal documents whenever that work would require them to make substantive decisions regarding the contents of those documents or the language to be used.
Landlords Professional Services (“LPS”) had advertised an eviction service for landlords. It told its clients that its agents were not attorneys, and that its customers would need to represent themselves in any unlawful detainer litigation. LPS also gave its customers a booklet that described an unlawful detainer action. That booklet, however, also gave advice on subjects like changing locks after an eviction and accepting rent payments after serving a notice to quit. LPS also occasionally provided oral advice to its clients. For example, LPS told one client about errors in a three-day notice, and offered at least once to type up a client’s testimony for the client to read in court.
The District Attorney filed a civil complaint against LPS for the unauthorized practice of law, and the trial court subsequently issued an injunction barring LPS from engaging in numerous activities. Among other things, the court enjoined LPS from preparing papers for eviction proceedings, “other than at the specific and detailed direction of a person in propria persona” or under an attorney’s direct supervision. Landlords Professional, supra, at 1603. The injunction also barred LPS from explaining the effect of any rule of law or court, and prohibited LPS from explaining the requirements for commencing or maintaining a court proceeding. Id. at 1603-04. LPS also was enjoined from advising or explaining which forms were required for an unlawful detainer proceeding, unless an attorney directly supervised this explanation. Id. Essentially, then, the injunction limited LPS’ role in preparing legal documents to that of a secretarial service.
The Court of Appeal affirmed the injunction. It summarized California law holding that the “practice of law” involved not only services in a court of justice, but also the providing of legal advice and counsel, and the creation of contracts and other legal documents. Id. at 1604-05. It also noted that people practice law when they resolve difficult or doubtful legal questions which, to safeguard the public, reasonably demand the application of a trained legal mind. Id. at 1605 (citing Agran v. Shapiro (1954) 127 Cal.App.2d.Supp. 807, 818. Certain activities, however, did not constitute the practice of law. While non-lawyers may not select forms for their clients, they can nevertheless provide clerical services or act as scriveners to help fill out any forms their clients choose. Landlords Professional, supra, 215 Cal.App.3d at 1605 (citing People v. Sipper (1943) 61 Cal.App.2d.Supp. 844, 846-47, 142 P.2d 960). The Court also noted that in other states, the sale of detailed manuals containing instructions on filling out legal forms is lawful, provided that the seller not “particularize the advice given to individual situation cases.” Landlords Professional, supra, 215 Cal.App.3d at 1606. The Court held that the law was the same in California, and stated that the seller of legal texts and manuals cannot “personally advise the client with regard to his specific case.” Id. at 1608.
The Court also discussed in detail and agreed with several cases from other states on the subject of the unauthorized practice of law. A key theme in those cases was the nature of the contact between the non-lawyers and their clients. If there was no direct, personal contact between the client and non-lawyer, such as through the sale of do-it-yourself books, then there was no practice of law. Any personal contact, however, had to be severely limited. In no case was a non-lawyer allowed to provide anything other than secretarial services, and in no case was the defendant allowed even so much as to choose the forms the client used. See, e.g., Oregon State Bar v. Gilchrist (1975) 272 Ore. 552, 538 P.2d 913, 919 (publisher of legal materials prohibited from helping clients select forms, among other things) (cited in Landlords Professional, supra, 215 Cal.App.3d at 1607).
The Court of Appeal then held that LPS had improperly practiced law. It noted that LPS’ advertisement implied its services “were not limited to clerical functions,” and that LPS had “cast about itself an aura of expertise concerning evictions.” Id. at 1608-09. LPS also provided “specific information to its clients.” Id. at 1609. Given this “aura of expertise,” the Court held, LPS’ advice would “undoubtedly be relied upon by its clients, perhaps to their serious detriment.” Id. The Court also did not consider the case at hand to be “close” as to whether or not LPS was practicing law. Id.
California Statutes Governing Non-Lawyer Legal Professionals.
California has enacted a regulatory system for professionals who are not lawyers but who provide services in the legal field. Among other things, this system recognizes the professions of “legal document assistant,” “unlawful detainer assistant,” and “paralegal.” Cal. Bus. Prof. Code §§ 6400-6415(legal document assistants and unlawful detainer assistants); id. §§ 6450-6456 (paralegals). This system expressly prohibits all three categories of professionals from “practicing law.” Id. § 6411(d) (legal document and unlawful detainer assistants); id. § 6450(b)(5) (paralegals). In particular, legal document and unlawful detainer assistants may not give “any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.” Id. § 6411(e). Similarly, paralegals may not “[s]elect, explain, draft, or recommend the use of any legal document” to anyone other than their supervising attorneys. Id. § 6450(b)(3). While paralegals can perform “substantial legal work,” they must do so “under the direction and supervision” of a licensed attorney. Id. § 6450(a). In short, then, the statutes reinforce the limitations in Landlords Professional concerning what what non-attorneys can do in the legal field.
In addition, paralegals are prohibited from working for themselves, and must work for someone else. Id. § 6450(a). Legal document assistants may work for themselves, but are expressly limited to four categories of activities, all of which are categorized as “self-help services.” Those activities are as follows:
(1) Completing legal documents in a ministerial manner, selected by a person who is representing himself or herself in a legal matter, by typing or otherwise completing the documents at the person’s specific direction.
(2) Providing general published factual information that has been written or approved by an attorney, pertaining to legal procedures, rights, or obligations to a person who is representing himself or herself in a legal matter, to assist the person in representing himself or herself.
(3) Making published legal documents available to a person who is representing himself or herself in a legal matter.
(4) Filing and serving legal forms and documents at the specific direction of a person who is representing himself or herself in a legal matter.
These statutes shows a legislative intent to reserve the practice of law to members of the State Bar, and to ratify the holdings in Landlords Professional as to what it means to “practice law.” Indeed, part of the intent of the statute governing legal document assistants was to codify the Landlords Professionaldecision. See Legislative History of SB 1418, 1997-98, August 24, 1998 Senate Floor Analyses.
Both the decision in Landlords Professional and the regulatory scheme in the California Business and Professions code severely proscribe what non-lawyers in California can do, unless they are directly supervised by a licensed attorney. Non-lawyers must certainly refrain from any act that constitutes the practice of law, they may not give advice on any substantive aspect of a legal proceeding or document, and they must abstain from any discretionary role in the preparation of pleadings, agreements, and other legal documents. All of those discretionary decisions must be made exclusively by the customers themselves. The role of the non-legal professional, then, is little more than a scrivener with familiarity as to the forms being used.