Unauthorized Practice of Law
 

I thought I'd post this for the benefit of the Board. Lately, I have been reading some posts from non-lawyers that clearly are proffering specific legal advice. This is something even lawyers are usually very careful of, especially on a forum like this. I would think non-lawyers would be even more careful given potential criminal consequences. Sometimes it is a blurry line between general advice vs. specific legal advice but boy I've seen some whoppers on here lately.

Anyway here are some ULP cases you might want to take a look at.

Also, here is the District Attorney's Manual on ULP http://da.co.la.ca.us/pdf/UPLpublic.pdf

4. Prosecution for the Unauthorized Practice of Law

An individual accused of engaging in the unauthorized practice of law faces a variety of consequences, anything from a cease and desist letter to criminal prosecution. Prosecutions include penalties from $25 to $500 and violations such as a first-degree misdemeanor. Oftentimes, the primary tools to control the unauthorized practice of law are generated from consumer fraud acts that prohibit the impersonation of an attorney and have been used to prosecute criminally nonattorneys who appear in court as if they were attorneys or who prepare legal documents.


a. Statewide Grievance Committee v. Patton:1 Defendants provided customers a form to indicate the type of service they requested. The service provided legal documents for nonlawyers to file in their own uncontested legal actions. The question was whether the acts performed were those commonly understood to be the practice of law.

b. Attorney Grievance Commission v. Hamilton:2 The attorney was charged with violating the rule that prohibited a lawyer from assisting unlicensed persons in the unauthorized practice of law when the attorney failed to adequately supervise a paralegal in the representation of a church at a zoning hearing.

c. Davis v. Woolridge:3 Lawsuit filed against 40 independent paralegals in the San Bernardino County Superior Court charging the paralegals with unauthorized practice of law. This suit was filed in 1997.

d. In re Reed:4 The court ruled that Christine Mandjik, who runs Affordable Court Assistance and is a nonlawyer bankruptcy petition preparer, did not engage in the practice of law by advising a debtor about which exemption to select on her bankruptcy papers.

e. In the Matter of Arons:5 A lawsuit was filed in the Supreme Court of the State of Delaware by the Office of Disciplinary Counsel against Marilyn Arons and others for engaging in the unauthorized practice of law. Arons runs the Parent Information Center of New Jersey and provides services to parents of disabled children in due process headings before administrative agencies.

f. Florida Bar v. Catarcio:6 Florida Supreme Court ruled that a paralegal may not use the phrase "free consultation" to advertise legal form preparation service.

g. Furman v. Florida Bar:7 The Florida Bar prosecuted a former legal secretary and tried to have her jailed for helping poor and middle-income people complete routine divorce forms. The Florida’s governor granted her a pardon and she did not serve any jail time.

h. Oregon State Bar v. Smith:8 Robin Smith, an independent paralegal who ran Peoples Paralegal Service, was put out of business after being successfully sued for unauthorized practice of law.

Re: Unauthorized Practice of Law
 

So every question that comes on here should be answered with "We're not lawyers - go consult a lawyer"?

The forum would be rather dull, wouldn't it? None of us have claimed to be lawyers, or are practicing law.
Advice and opinions come with the usual caveat emptor.

Re: Unauthorized Practice of Law
 

100,000 Nigerians are sending emails to screw people out of their money, and the US Attorney is going to swoop into this forum? Many of the posters aren't even in the US, including me.

I understand that it cuts into the bottom line when people get free information.

Which is worse, the bad information coming from laypeople, or the bad information coming from the lawyers? We don't even have a lawyer on here who can properly articulate why a VWP applicant would get a 212(a)(7)(A)(i)(I) charge. It sounds like this forum is in deep trouble if everyone else stopped discussing the law too.

Every post in response to a question should be "Call a lawyer, and have your credit card number ready".

Perhaps BE should add a banner stating that nothing on here should be construed as an attorney/client relationship when people create an account.

Are there any cases you can show where no money changed hands?

Re: Unauthorized Practice of Law
 

Unless I am mistaken, UPL is based entirely on state law. Why is it that attorneys can practice immigration law in other states without fearing UPL? I know immigration law is federal and the same nationwide, but nevertheless this does not appear to shield them from UPL claims from other states.

Or maybe there is a constitutional issue that state law can not preempt and regulate the practice of law for federal matters? But if so, then you should not have been liable for UPL violations by a state with respect to advice on federal matters.

And btw, if both parties receiving and giving advice aren't in a US state, state law has no jurisdiction whatsoever.

Re: Unauthorized Practice of Law
 

AT least that is one good thing, nobody in their right mind is going to consider my posts to be legal advice.

I seem to remember there are some States that do have a UPL law.

Re: Unauthorized Practice of Law
 

SusanPai,

You say, "Lately, I have been reading some posts from non-lawyers that clearly are proffering specific legal advice."
Please cite specific examples of people dispensing legal advice.

Thanks.

Re: Unauthorized Practice of Law
 

Some fair questions -- as a historical note, look at Sperry v Florida.

Do note the FIRST paragraph:

I thought I'd post this for the benefit of the Board. Lately, I have been reading some posts from non-lawyers that clearly are proffering specific legal advice. This is something even lawyers are usually very careful of, especially on a forum like this. I would think non-lawyers would be even more careful given potential criminal consequences. Sometimes it is a blurry line between general advice vs. specific legal advice but boy I've seen some whoppers on here lately.

An analogy may be made to the Supreme Court's struggle with pornography law in the 60's & 70's. In the famous Jacobellis v Ohio case, Justice Potter Stewart famously despaired in a concurrence of ever making clarifying a blurry line -- but "I know it when I see it."

The "old timers" in these forums know that UPL is a sensitive topic and the etiquette here doesn't really allow for individual accusations.

A further analogy may be made to the "AOS from VWT" issue in the marriage based forums. In the life of this forum and its predecessors -- there has been no change in the statutes or regulations. Back in the day, there was advice on "clean entries," the "30/60 rule" and "the government forgives the overstay" -- it moved to the "10-foot pole" -- and today it is "BAD MOVE."

Susan's post is simply a warning.

Re: Unauthorized Practice of Law
 

It's really not nice to drive by this forum and accuse people of criminal acts.

You've presumably got access to Lexis and West. Go and find us a case with a similar fact pattern to your accusation and I'll take you seriously. (And this time, do try and cite it properly!)

Otherwise, you're just blowing hot air.

Re: Unauthorized Practice of Law
 

CAVEAT - All this can be argued and I'm not going to engage in a long colloquoy about stare decisis, inter- vs. intra-circuit applicability, blah blah blah. I'll leave that to the erudite pedagogues here.

Re: Unauthorized Practice of Law
 

Etiquette doesn't allow for individual accusations?
Well, seeing as you're relatively new here, I'll tell you about the time I was publicly accused - individually - of anti-Semitism, by a user on these forums.
He was before your time, but this folinskyinla character was quite hubristic.
He doesn't seem to post here any more.

No advice given nor intended. ;)

Re: Unauthorized Practice of Law
 

The other day I heard a well respected teacher say that before you engage in a discussion in which the parties have differing opinions, you must first ask yourself whether or not the parties have a genuine interest in productive discourse. If not, no amount of logic or reason will ameliorate the anger, vitriol and ultimately the glee with which someone attacks.

I think this is, for the most part, a forum in which people (lawyers, teachers, doctors, electricians, whatever) share their opinions and experiences-- hopefully, to try to help other expats out. My posting was intended to alert people who may be giving specific legal advice that there may be some consequences to doing so-- consequences they were unaware of. There was and is no hidden agenda on my part. I believe one of the rather amusing motives attributed to this posting included that I was taking a somewhat Napoleonic interest in overtaking the Expats forums (that one made me chuckle - anyone who knows the breadth of this forum knows that is a physical impossibillity).

It's much less stressful to go through life assuming the best in people vs. the worst. If you always assume the very worst in people, you will always be very angry. But, then again, some people like wallowing in anger and vitriol and I guess the web is an easy place to be like that. And, I suppose no matter what I post, if someone has decided to engage in negativity for sport while hiding behind a pseudonym and isp, there is no countering that with reason or logic.

How about this for some valuable free advice:

"Protect yourselves from Muslim vampires by rubbing pork sausage on your necks." -a la Stephen Colbert

Now, before you go off on me for criticizing Muslim vampires, it's SATIRE.

Enjoy your weekend and don't be so angry. :D Life is too short.

Re: Unauthorized Practice of Law
 

Interesting rhetorical tricks employed here. Some redirection, too. C+.
So are you going to give some examples of the "whoppers", or just deflect?
Waits patiently...

\ Electrician.
\\ Ped-o-gogue

Re: Unauthorized Practice of Law
 

Too bad for this forum that more good immigration lawyers like Mr. Folinsky are not posting on here. :(

He is so well regarded that he is often consulted by other immigration attorneys. He also has many, many years of experience. These are the kinds of people who, if they felt welcome here, or, at least not constantly under sophomoric attack, would be extraordinarily valuable contributors-- good lawyers willing to post on a public forum for free.

No, I don't know Mr. Folinsky personally - I know him by reputation within our community.

I returned to posting here very recently hoping that things had changed and that moderation was either being self regulated, or enforced by the "official moderators." I'm afraid, however, that not much has changed and that it appears the vitriol against lawyers has actually gotten worse.

That really is too bad. Soon, no reputable lawyer, will post on here and this will become just another Internet site with bad immigration advice from "net-arios." Well, that means more business for people like Mr. Folinsky and me but that's not very good for the people who take and apply the bad advice to a bad end. Ah, well.

Re: Unauthorized Practice of Law
 

Snicker. That was quite manipulative. I'm sure you'll succeed in your attempts to get me censured. Frankly, I'm not overly concerned.

:beer: Better things to do. 'Night

Actually, I will say some one final thing. You come in here, slag people off, and then refuse to back it up. For shame, ma'am. For shame.

Re: Unauthorized Practice of Law
 

You appear in a new community, advertise your business, start accusing folks of crimes, belittle their freely-given contributions to others, and then claim to be offended by it all?

Don't let the door hit you on the way out.

Re: Unauthorized Practice of Law
 

No you would be mistaken in that regard, more so that you have upset people with the topic of this thread, hence some of the responses. If you had been a member here longer you would know that.

I would ask that you don't tar the majority of the members of this forum with the same brush because of the behavior of one or two members that you don't get on with, it's unfair and unwarranted.

Also we don't pre-moderate, and do not read every post on this forum, so if you feel any posts are inappropriate you are more than welcome to use the "report" post button to bring to to the attention of a "volunteer" moderator.

Thank you

Re: Unauthorized Practice of Law
 

There are several things here. Most people are.just trying to give advice based on their experience with the system.and what they have picked up along the way. Not unreasonable for a site some this. This leads to another issue, the people that give advice or opinions are not lawyers and as such don't know what constitutes legal.advice. I know just from my view no one, even the lawyers, offer legal advice. Every now and again a lawyer does post something that could be legal advice but mainly I just see opinions and advice, usually advice to see a lawyer. The last issue is that, at least to me, a lot of what the lawyers write comes across as very arrogant. I'm of the opinion that its unintentional and they are trying to be helpful but it often sounds like they think you are better than everyone else. This thread is a great example, I don't believe its meant to but it reads like an elitist rant.

Without the free flow of thoughts, opinions and views this particular forum becomes pointless as each question would be answered with the poster being told to see a lawyer.

Re: Unauthorized Practice of Law
 

The only logical conclusion would be to close this and other forums down, if indeed it was illegal. ILW has its own forum, if a bit weird.

The biggest difference is nobody here gets paid for it. and as they say you get what you pay for.

Re: Unauthorized Practice of Law
 

Most of you didn't know Alvena Ferreira or Charles "Doc" Steen. I did, so did Rete... and perhaps one or two others who participated in the original Usenet newsgroup alt.visa.us.marriage-based back in 1997. Susan's post got me thinking about the two of them. I'm not sure why exactly... but then again, maybe I do.

Susan - for what it's worth, thanks for the post! We've debated UPL on and off for many years now - with strong viewpoints on both sides of the issue. I, for one, likely won't change what I do - but I do appreciate that you're trying to protect us! :)

Ian

Re: Unauthorized Practice of Law
 

The basic problem is that she provides no meaningful context for her complaint. Thus it appears to be directed at everyone.

BTW, it seems to this non-attorney that "go see a lawyer" is qualitatively legal advice as much as anything else on this forum.

Re: Unauthorized Practice of Law
 

UPL is certainly not cut and dry:


"What is considered the "practice of law"?
The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987).

Additionally, whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).

Examples from South Carolina Supreme Court decisions:
Inmates. The Supreme Court ruled that it was the unauthorized practice of law for a state prison inmate to help other inmates prepare applications for post-conviction relief, even though he was not paid and never appeared in court on the other inmates' behalf. South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).

Re: Unauthorized Practice of Law
 

Some lawyers cut and paste....then fail to even bother attributing to the original writer.

http://www.dcba.org/brief/mayissue/2002/art40502.htm -- cut and paste is about half way down.

The article's actually about paralegals working in the legal profession. But we wouldn't want facts to get in the way of opinions here, would we?

Re: Unauthorized Practice of Law
 

You'll find AZ is not quite so gung-ho as SC.

Re: Unauthorized Practice of Law
 

"Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002)."

Class action law suit against the USCIS mis-information line for UPL :cool:

Re: Unauthorized Practice of Law
 

Maybe some lawyers have also forgotten that many queries here do not require the attention of a lawyer, an example being that if someone is unsure whether they can use the VWP or not, they certainly don't need to see a lawyer on that score if there is nothing serious preventing them from doing so. It also comes down to how responsible the individuals are in following the very basics of immigration law that in invariably offered to the individual when they read the conditions of the use of something like the VWP.

Whether people are irresponsible or not, going to see a lawyer might not be particularly beneficial when the experience here often does give the right answer a lot more often than not. From what I've seen here the right answers appear to be given at a percentage in the high nineties, so individuals are very unlikely to be given the wrong advice. :)

Re: Unauthorized Practice of Law
 

'Expressing legal opinions' is covered but vaguely defined as in many cases.




http://www.myazbar.org/LawyerRegulation/upl.cfm

Re: Unauthorized Practice of Law
 

Matt Udall is that you ....

Re: Unauthorized Practice of Law
 

Lord knows I have rarely seen eye to eye with Fatbrit, but he is absolutely correct. I for one will regard the original poster of these comments somewhat differently due to this rather large omission of failing to reference the original, intact article. For shame sir.

Re: Unauthorized Practice of Law
 

It's all based on re. Creasy.

Re: Unauthorized Practice of Law
 

Ray:

:rofl::rofl::rofl:

As you know, Matt is temporarily banned for life. However, it has struck me that many of the responses in this thread are as if Matt is here. But he is not here.

Susan took great pains to mention that "blurry line." The placement of that "line" is a subject of debate. In a stretch of that metaphor, I think I can safely say that Matt is more of a "hard liner." Also, Matt would go toe-to-toe and name names.

Look -- you have long noted the legitimate limitations of the E-2 visa. However, you then extended it to an opinion that, to paraphrase, all E-2 are made of soft brown material. You now acknowledge that, for certain people, an E-2 may be just fine and dandy. And even if it is not, it is the choice of person as long as they know the shortfalls. By all means, it is my opinion you can continue to point out the down-side -- kids aging out, you go away if business goes away, retirement means going away, etc etc.

Re: Unauthorized Practice of Law
 

How can you be temporarily banned for life.

Enquiring minds would like to know.

Re: Unauthorized Practice of Law
 

He can join again in the next life.

Re: Unauthorized Practice of Law
 

I just wanted to add that there are many many threads on here - where the general population of posters is specifically telling the new enquirer to 'go see a lawyer' sometimes over and over in the same thread.

Re: Unauthorized Practice of Law
 

My perception is the opposite - that any such posts are few and far between and are generally countered by other posters and/or moderators. This is a forum for discussion rather than professional assistance and almost all requests that get into the realm of seeking professional assistance receive the advice to "find an attorney."

If you have specific concerns about specific posts, then the proper response is usually to respond with your concerns on the thread. If it's flagrant, then report it to moderators or site administrators. That said, there is a distinction between "discussion of law" and "practice of law".

Re: Unauthorized Practice of Law
 

He is still carried on the membership rolls. However, there is a ban in place which is set to expire "never." This is pure observation and I offer no explanation -- it is none of my business.

Re: Unauthorized Practice of Law
 

Its OK His IMDb membership is safe

Re: Unauthorized Practice of Law
 

I'm not all that sure your "perception" is all that different than Susan's. She did note that there are "some" posts and that the line is "blurry."

Also, I would suggest that it is the human condition to better remember negative experiences that ordinary experiences. An example of this is that immigration "horror stories" are more likely to be posted in these forums than the overwhelming majority of cases which experience no problems whatsoever.

I do not perceive that Susan tarred the majority of posters with the same brush. Nowhere close IMHO. However, there are instances where there will be posts that express opinions on issues that will have experienced attorneys scratching their heads.

On the "accusation" front, it should be noted that it is prosecutors who do that. Simply noting that a prosecutor may take a dim view of actions is not the same as an accusation. [BTW, FWIW, the then incoming president of AILA was indicted for fraud on the Government for a common practice. Fortunately, the former INS provided affidavits that although the practice was a bone of contention as to its legality, it was not fraud.]

I would also note that no one is obligated to post here. If an attorney chooses to respond to a "whopper," I think the best practice would be to give their position without reference to the "whopper." Let the questioner decide -- it is their life.

Final point -- on apparent "cut and paste:" internet lists are like wire coat hangers -- they are the product of asexual reproduction. [This is both a metaphor and a simile. Neat trick, eh? :D] This propagation does not add or detract from the validity of the list -- that is a matter of independent inquiry.

Re: Unauthorized Practice of Law
 

So the OP haughtily came in here, tarred with a broad brush, attempted to cajole the mods into quashing people's opinions - thanks, Sue, for smacking that down - and then left without given specific examples to illustrate her point.

I read her warning that if we didn't all play nice and act deferentially - perhaps reverentially? - then the lawyers wouldn't post here any more.
Gasp! How on earth would we manage?

It seems to be me that the majority of posts from our legal friends are generally of the nature: "This is complex issue. Get a consultation with an immigration attorney". Which is the advice a lot of us laypeople give anyway.

Kudos, too, for fatbrit. :thumbup:

Re: Unauthorized Practice of Law
 

Don't be too sure: I have full access to the database which controls access to IMDb. Of course, it's an instantly terminateable offense for me to futz with user data, but I could still do it in theory...

Re: Unauthorized Practice of Law
 

Oh, and in case anyone missed if, the OP is also the one who posted the pinned "4 simple rules..." thread that some people deemed to be tantamount to warning against UPL, plus self-advertising, and which also generated a lot of controversy and deleted posts...