CHAPTER 6 - 6-6 UNAUTHORIZED PRACTICE OF LAW AND MULTIJURISDICTIONAL PRACTICE

• Jurisdiction: United States

6-6 Unauthorized Practice of Law and Multijurisdictional Practice

6-6:1 Unauthorized Practice of Law

The unauthorized practice of law (UPL) regime is a synthesis of three bodies of lawthe ethical rule found as Rule 5.5,⁸⁰ the statute governing UPL, § 51-88⁸¹ and the definition of the practice of law found in Practice Book § 2-44A.⁸² UPL complaints may be pursued in court by any attorney admitted to the practice of law,⁸³ by Disciplinary Counsel,⁸⁴ by the Grievance Committee⁸⁵ or by a court on its own motion.⁸⁶ Sanctions include contempt of court⁸⁷ as well as fines and incarceration.⁸⁸ One violating the statute can be found guilty of a class D felony, except if an accused proves by a preponderance of the evidence that she committed the proscribed act or acts while admitted to practice law before the highest court of original jurisdiction in any state, the District of Columbia, the Commonwealth of Puerto Rico or a territory of the United States or in a district court of the United States and while a member in good standing of such bar, such person may be guilty of a class C misdemeanor.⁸⁹

The original statute, which was primarily directed against the appearance in court by persons not admitted to the bar, was broadened by the addition of the provision that unauthorized persons should not "practice law." This was to forbid the performance by persons not admitted as attorneys of acts, in or out of court, "commonly understood to be the practice of law."⁹⁰ The regime is justified not as turf protection for lawyers but as consumer protection, guaranteeing the public that those who offer legal services for sale possess an adequate level of learning and skill, are of sound moral character, and act at all times under the heavy trust obligation to clients which rests upon all attorneys.⁹¹ Advertising alone is sufficient to constitute the unauthorized practice of law if advertisement is for activity that amounts to legal services.⁹² The statutory UPL regime has been found to be constitutional.⁹³

The UPL statute, C.G.S. § 51-88, prohibits a person who has not been admitted as an attorney under the provisions of Statutes § 51-80 or, having been admitted under § 51-80, has been disqualified from the practice of law due to resignation, disbarment, being placed on inactive status or suspension, from (1) practicing law or appear as an attorney-at-law for another in any court of record, (2) making a business of practice law, (3) soliciting employment for an attorney, (4) holding oneself out to the public as being entitled to practice law, (5) assuming to be an attorney, (6) using or advertising the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term in such manner as to convey the impression that he is a legal practitioner of law, (7) advertising that one owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law, nowhere does it define what is the practice of law or (8) otherwise engaging in the practice of law as defined by statute or rule of the Superior Court, unless such person is providing legal services pursuant to statute or rule of the superior court.⁹⁴

C.G.S. §51-88(a)(B) coordinates the statute with the definition of the practice of law found in Practice Book § 2-44A. Prior to the adoption of Practice Book § 2-44A and the amendment to Statutes 51-80 coordinating the conduct proscribed there with the Practice Book definition of the practice of law, the definition of what constituted the practice of law was the practice of law was conduct "generally understood" to be the practice of law.⁹⁵ Due to the difficulty of enforcing a rule that really only says that the practice of law is the practice of law, at the request of the Office of Disciplinary Counsel and the CBA Unauthorized Practice of Law Committee the judges of the superior court adopted Practice Book § 2-44A, a rule that attempts to define what it means to practice law and carves out safe harbors related to "the practice of law-like activity."⁹⁶

Practice Book § 2-44A includes in the definition of practicing law (1) holding oneself out as an attorney or as being engaged in the practice of law, (2) giving advice concerning a person's legal rights or responsibilities, (3) drafting legal documents affecting the legal rights of a person, (4) representing a person before a court or in an administrative adjudicative proceeding, (5) giving advice or representation concerning transaction involving real property and (6) engaging in any other conduct established to be the practice of law by common or statutory law, rulings or other authority.

The rule carves out as protected activity, whether or not it is the practice of law, (1) the sale of documents prepared by a Connecticut lawyer, (2) acting as a lay representative before administrative agencies or in administrative hearings where the agency has adopted rules allowing for lay representation, (3) serving as a mediator, arbitrator, conciliator or facilitator, (4) participating in labor negotiations, (6) lobbying, (7) activities of court personnel, (8) performing activities allowed by federal law, (9) performing statutorily authorized services such as real estate agency, (10) preparing tax returns or other permitted activities under rules of the IRS, (11) performing other activities determined by courts not to be the practice of law or (12) pro se representation.⁹⁷

Legal services may be rendered by paralegals under the supervision of a lawyer.⁹⁸ Lawyers admitted in another jurisdiction may provide legal services for a single corporate employer under what is called the "authorized house counsel" regime found at Practice Book § 2-15A.⁹⁹ Attorneys from another...