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.



West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
The law also prohibits the unauthorized practice of the fisheries profession; against the corporate practice, and against hiring unlicensed fisheries professionals and penalizes violators with a fine ranging from PHP50,000 to PHP500,000 or imprisonment of six months.
The new law prohibits the unauthorized practice of the fisheries profession without a license and will punish violators with fine of not less than P50,000 but not more than P500,000 or imprisonment of not less than 6 months, or both upon the discretion of the court.
The PIO said the revised rule also enumerated which are considered "unauthorized practice of law" with corresponding sanctions.
According to a letter published on Bar Watch's website, Phillips had alleged that state bar attorneys had engaged in the unauthorized practice of law in connection with the bar's grievance committee issuing him a letter of warning.
The Supreme Court of Virginia has enacted new versions of the rules defining the unauthorized practice of law and governing habeas corpus practice.
Although not specifically addressed in the Court of Appeal's decision, it is also important to note that the filing of the answer by an employee of Eagle Bank (and not an attorney) was the unauthorized practice of law.
In such an environment, the SJC sanctioned the use of whatever volunteer assistance is available to pro se litigants, provided that the volunteers do not engage in the unauthorized practice of law.
Dwyer determined Maldonado did not provide competent representation; was not truthful because she misrepresented to third parties that she was a doctor; did not respect the rights of third parties by harassing her client's doctor; and committed unauthorized practice of law by "ghost-writing" pleadings when the client claimed to represent herself pro se.
She has served as a parent coordinator both privately and via court appointment, and currently serves on the New Jersey Supreme Court's committee on the unauthorized practice of law.
Schiltz in default and suspend his Wisconsin law license for a period of 18 months for professional misconduct in connection with: (1) his work on certain client matters; (2) his practice of law while his law license was suspended for noncompliance with mandatory continuing legal education (CLE) reporting requirements; and (3) his failure to disclose his unauthorized practice of law in his reinstatement petition to the Board of Bar Examiners (BBE).
"This investigation exposes how one scheme resulted in a spectrum of fraudulent conduct, including money laundering, grand larceny and the unauthorized practice of medicine, according to the charges."
For instance, could the service it provides be construed as the unauthorized practice of law?

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