Unauthorized Practice

• Author: Jeffrey Lehman, Shirelle Phelps

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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,

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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)...