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Prof Responsibility • Duty to Profession
PR#065
Legal Definition
Under Rule 5.5, a lawyer may not permit or assist someone in the unauthorized practice of law. The unauthorized practice of law does not include activities that do not require the professional judgment of a lawyer, such as fact investigation or witness interviews. Additionally, a lawyer may not split fees with a non-lawyer, pay "referral" fees to a non-lawyer, or engage in the practice of law or sharing of legal income with a non-lawyer (including a disbarred former lawyer).
Plain English Explanation
Despite how often random people like to fantasize about being attorneys, only those who are properly trained and licensed can practice law. This rule is designed to protect people from getting bad legal advice from someone who isn’t qualified. The law requires lawyers to use their professional judgment, which includes giving legal advice, representing someone in court, or drafting legal documents. If someone who isn’t a licensed lawyer tries to do these things, they might harm the person they're trying to help.
This is why a lawyer cannot help or allow a non-lawyer to perform these tasks. Even tasks like splitting fees with non-lawyers, paying non-lawyers for referrals, or practicing law with them are strictly prohibited. This also includes working with someone who used to be a lawyer but was disbarred (meaning they lost their license to practice law because they did something seriously wrong). The idea here is to maintain the integrity and trust in the legal profession by ensuring that only qualified individuals are doing the work that requires a lawyer’s expertise.
On the flip side, tasks that don’t require legal judgment, like gathering facts or interviewing witnesses, don’t count as practicing law. Non-lawyers can help with these tasks without crossing the line. But when it comes to anything that requires a lawyer’s specialized knowledge or decision-making, only a licensed lawyer should be involved.
This is why a lawyer cannot help or allow a non-lawyer to perform these tasks. Even tasks like splitting fees with non-lawyers, paying non-lawyers for referrals, or practicing law with them are strictly prohibited. This also includes working with someone who used to be a lawyer but was disbarred (meaning they lost their license to practice law because they did something seriously wrong). The idea here is to maintain the integrity and trust in the legal profession by ensuring that only qualified individuals are doing the work that requires a lawyer’s expertise.
On the flip side, tasks that don’t require legal judgment, like gathering facts or interviewing witnesses, don’t count as practicing law. Non-lawyers can help with these tasks without crossing the line. But when it comes to anything that requires a lawyer’s specialized knowledge or decision-making, only a licensed lawyer should be involved.
Hypothetical
Hypo 1: Bob is an attorney, and Sam is his client. Sam asks Bob if his friend Timmy, who isn't a lawyer, can help draft Sam's will to save some money. Bob agrees and lets Timmy take over the drafting while he supervises from a distance. Result: Bob is allowing the unauthorized practice of law because drafting a will requires legal judgment. Bob should not let Timmy do this work, as Timmy isn't qualified to make the necessary legal decisions. Bob is violating the rule by letting a non-lawyer perform legal tasks that require a lawyer's expertise.
Hypo 2: Bob has been suspended from practicing law but continues to manage Sam's legal case, giving legal advice and negotiating with the opposing party. Result: Bob is engaging in the unauthorized practice of law since his license is suspended. He is also violating the rule by practicing law when he is not allowed to do so, which could lead to further disciplinary actions.
Hypo 3: Bob hires Sam, who is a paralegal, to help with his legal cases. Bob asks Sam to draft legal documents and make court appearances without Bob’s involvement. Result: Bob is permitting unauthorized practice of law because court appearances and drafting legal documents are tasks that require a lawyer’s professional judgment. Even though Sam is a paralegal, these tasks are beyond what he can legally do without a lawyer's direct involvement.
Hypo 4: Bob hires Sam, who is a paralegal, to interview witnesses and gather facts for a case. Sam collects all the information and reports back to Bob, who then uses that information to build the case. Result: The rule does not apply here because Sam is not engaging in the practice of law. Fact-gathering and interviewing witnesses do not require legal judgment and are tasks that non-lawyers, like paralegals, can perform under a lawyer’s supervision.
Hypo 2: Bob has been suspended from practicing law but continues to manage Sam's legal case, giving legal advice and negotiating with the opposing party. Result: Bob is engaging in the unauthorized practice of law since his license is suspended. He is also violating the rule by practicing law when he is not allowed to do so, which could lead to further disciplinary actions.
Hypo 3: Bob hires Sam, who is a paralegal, to help with his legal cases. Bob asks Sam to draft legal documents and make court appearances without Bob’s involvement. Result: Bob is permitting unauthorized practice of law because court appearances and drafting legal documents are tasks that require a lawyer’s professional judgment. Even though Sam is a paralegal, these tasks are beyond what he can legally do without a lawyer's direct involvement.
Hypo 4: Bob hires Sam, who is a paralegal, to interview witnesses and gather facts for a case. Sam collects all the information and reports back to Bob, who then uses that information to build the case. Result: The rule does not apply here because Sam is not engaging in the practice of law. Fact-gathering and interviewing witnesses do not require legal judgment and are tasks that non-lawyers, like paralegals, can perform under a lawyer’s supervision.
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