Unauthorized Practice

Unauthorized Practice

The performance of professional services, such as the rendering of medical treatment or legal assistance, by a person who is not licensed by the state to do so.

The unauthorized practice of a profession is prohibited by state laws. Violators of these laws are generally subject to criminal sanctions, but what constitutes unauthorized practice is constantly changing and is the subject of dispute. For example, persons opposed to laws that ban the unauthorized Practice of Law argue that the legal profession uses these statutes to maintain a Monopoly over legal services, many of which can be performed by nonlawyers.

The professions have sought the enactment of unauthorized practice statutes in part to protect the public from persons who are not trained to give professional assistance and who may give substandard treatment. The elements of a profession include a rigorous course of training, the certification of competency by a professional society or state agency, state licensure, and an obligation to follow a code of ethics. Based on these elements, the professions and most state legislatures believe that the public interest is best served by restricting the performance of medical, legal, and other services to the members of their respective professions.

The unauthorized practice of law has become a matter of public debate. Nonlawyers can read laws, interpret laws, draft documents, and proceed in legal matters on their own behalf, but in most states they cannot draft documents for others, give specific legal advice, or appear in court for another person. Nevertheless, most states allow nonlawyers to sell legal forms and general instructions and offer typing services for completing legal documents. Those critical of lawyers contend that nonlawyers should be permitted to draft simple legal documents because they can provide their services at a considerably lower price than an attorney.

The existence of statutes prohibiting the unauthorized practice of law does not guarantee that those statutes will be enforced, an issue that is a concern to the legal profession. Enforcement is difficult both because proof of the unauthorized practice of law is difficult to obtain and because many prosecutors place a low priority on pursuing these violations.

In 1998, Nolo Press, a Berkeley, California, publisher of popular legal Self-Help books, found itself the target of the Texas Unauthorized Practice of Law (UPL) committee. This committee, a subcommittee of the Texas Supreme Court, claimed that Nolo's products put individuals at risk because consumers saw Nolo as a legitimate and "official" legal resource. Nolo contended that it was in no way representing itself as a substitute for actual legal advice. The company's goal was to provide legal information to consumers in plain English, thus allowing them to decide whether to seek further advice or handle their legal problems themselves. Nolo sued the UPL, claiming among other things, that the committee's attempt to bar Nolo publications was in violation of the First Amendment. Nolo was joined in the suit by the Texas Library Association and the American Association of Law Librarians. Numerous organizations criticized the UPL committee's action, including many Nolo customers. In June 1999, the Texas State Legislature passed HB 1507, which exempts self-help legal materials, such as Nolo's, from UPL prosecution as long as the materials contain disclaimers that they do not constitute actual legal advice. (Nolo's products had carried such disclaimers for many years). The case against Nolo was officially dropped on September 21, 1999.

A person who has been harmed by relying on the advice of someone not authorized to practice a profession may sue that person in a tort action for damages sustained.

Cross-references

License.

References in periodicals archive ?
As such, the states Court of Appeals has affirmed a five-year suspension meted out to the attorney for engaging in the unauthorized practice of law.
The Code of Ethics for Librarians states that 'librarians shall not assist in the unauthorized practice of librarianship' (Section 2.
Two brothers who ran into trouble in Rhode Island for the unauthorized practice of law have now been sanctioned in Massachusetts.
An unlicensed plastic surgeon who was already under indictment for assault, grand larceny and unauthorized practice of medicine was arrested again, authorities said Friday.
Imposter alerts regarding the unauthorized practice of registered nursing by Leticia Gallarzo were originally published in the October 2015 and April 2016 editions of the Texas Board of Nursing Bulletin.
They knew full well that they would be committing a felony: the unauthorized practice of the law.
html) "plumping," which is the unauthorized practice of injecting silicone into the body.
Any nurse, who practises while not being registered, is also in violation of the Nurses Act and may be charged an additional unauthorized practice fee of $28750.
For the same reason, the court dismissed the IRS s claims of an "inherent jurisdiction" or "inherent authority" over unauthorized or suspended practitioners or an "inherent power" to investigate unauthorized practice or violations of its rules, as applied to tax preparation and other services not covered by Section 330 under the Loving analysis.
Part V ends by considering ways to reframe the division of labor between clinicians and lawyers at MLPs in light of state bar restrictions on the unauthorized practice of law.
Steve Bennett, Park Jensen Bennett LLP, covers the latest ethical issues and authorities in a lawyer's use of social media, including: advertising/endorsements; the unauthorized practice of law; client/witness contacts via social media; and the discovery of social media.
It is a violation of Bar rules to directly or indirectly divide fees with a nonlawyer or assist in the unauthorized practice of law by:

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