Avoiding the Unauthorized Practice of Law by Non-lawyer Assistants

• Publication year: 2003
• Pages: 27

32 Colo.Law. 27 Colorado Lawyer 2003.

2003, March, Pg. 27. Avoiding the Unauthorized Practice of Law by Non-lawyer Assistants

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27

Vol. 32, No. 3, Pg. 27

The Colorado Lawyer
March 2003
Vol. 32, No. 3 [Page 27]

Features

Avoiding the Unauthorized Practice of Law by Non-lawyer Assistants
by Dianne M. Kueck

This article was written by Dianne M. Kueck, an associate with the Denver law firm of Moye, Giles, O'Keefe Vermeire & Gorrell LLP - (303) 292-2900. The author wishes to thank the CBA Paralegal Committee for sponsoring this article

The Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC") place certain responsibilities on lawyers in connection with their non-lawyer assistants. In particular, Colo. RPC 5.5(b) prohibits attorneys from "assist[ing] a person who is not a member of the Colorado bar in the performance of activity that constitutes the unauthorized practice of law."1 Thus, under Colo.RPC 5.5(b), lawyers have an ethical duty not to aid or allow their non-lawyer assistants including paralegals, legal assistants, and other staff, to practice law.2 In addition, under Colo.RPC 5.3, lawyers must make reasonable efforts to ensure that the conduct of non-lawyers retained by or associated with them is compatible with the professional obligations of the lawyer. Finally, under Colo.RPC 5.1, partners in law firms and supervisory lawyers must make reasonable efforts to ensure that the lawyers in their firm or lawyers under their supervision conform to the Colorado Rules.

It is important that lawyers take seriously their responsibility to supervise their non-lawyer assistants and ensure that such non-lawyer assistants do not engage in the unauthorized practice of law. Allowing non-lawyer assistants to practice law has been grounds for discipline in several Colorado cases;3 in egregious cases, failure to supervise a non-lawyer assistant and aiding and allowing the unauthorized practice of law by a non-lawyer assistant may be grounds for disbarment.4 This article describes the Colorado authority applicable to determining what is "the unauthorized practice of law" and offers suggestions that may aid Colorado attorneys in fulfilling their ethical responsibilities in connection with preventing the unauthorized practice of law by non-lawyer assistants.

Definition of "the Practice of Law"

Colorado statutorily prohibits non-lawyers from practicing law.5 The definition and control of the practice of law in Colorado resides in the Colorado Supreme Court.6 While some Colorado cases discuss the meaning of "the practice of law" or hold that various activities constitute the practice of law, the court in Denver Bar Association v. Public Utilities Commission stated:

There is no wholly satisfactory definition as to what constitutes the practice of law; it is not easy to give an all-inclusive definition. We believe that generally one who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting him in connection with these rights and duties is engaged in the practice of law.7

Formal opinions of the Colorado Bar Association ("CBA") Ethics Committee (hereafter, "CBA Formal Op.") supply further guidance in defining the practice of law. For example, CBA Formal Op. 79 states: "Persons appearing in a representative capacity in, or in connection with, proceedings which may be characterized as judicial, or which involve the resolution of disputes of adjudicative facts or law, whether before administrative agencies or courts of record, are generally deemed to be practicing law."8 However, as recognized by the Public Utilities Commission Court, the practice of law is not restricted to appearances in a representative capacity, but includes counseling and advising clients as well.9 Thus, activities found by the Colorado Supreme Court to constitute the practice of law include analyzing the value of claims and advising a claimant whether to settle for a certain amount;10 preparing legal documents such as deeds, promissory notes, and deeds of trust;11 the counseling and sale of living trusts;12 and drafting legal pleadings and filings and advising with regard to legal strategy.13

In People v. Stewart,14 a lawyer was held to have aided the unauthorized practice of law by allowing his paralegal to initiate client relationships and to advise clients regarding legal matters. Similarly, in People v. Fry,15 a lawyer was held to have aided the unauthorized practice of law by allowing his paralegal to handle an entire bankruptcy matter, including all personal meetings with clients and the drafting of documents and correspondence.

In CBA Formal Op. 79,16 the Ethics Committee discussed whether an appearance in a representative capacity before a tribunal or agency always constitutes the practice of law and determined that, under some circumstances, an appearance in administrative hearings that is strictly legislative or non-judicial may not be deemed to be practicing law in some circumstances. The Opinion suggested that the following facts should be considered in connection with determining whether a representative appearance is the practice of law:

whether the client's testimony is to be taken...