3.2 Unauthorized Practice of Law

Unauthorized practice of law (UPL) is the practice of law by someone who does not hold a current law license. NFPA Rule 1.8 states the duty in one sentence: a paralegal shall not engage in the unauthorized practice of law. EC-1.8(a) then gives the definition the exam expects you to recite: giving legal advice, accepting cases, setting fees, planning strategy, making legal decisions, taking depositions, and appearing in court. EC-1.8(b) adds that the paralegal must comply with the UPL authority of every jurisdiction in which the paralegal provides services. States define “practice of law” in slightly different words — some by statute, some by court rule, some by case law — but the reserved-act list is stable enough for a national exam. Do not invent a state that “lets experienced paralegals set fees.”

The Code’s own definitions close the loop. Practice of law is the application of legal principles and judgment to the circumstances or objectives of a person, requiring the knowledge and skill of a person trained in the law. A traditional paralegal works with supervision by, and accountability to, a lawyer. A freelance / contract / virtual paralegal is a self-employed contractor retained by attorneys; a lawyer is still accountable. An independent paralegal provides services to consumers with no lawyer accountable. A rogue paralegal, in NFPA’s vocabulary, is a non-attorney who uses the paralegal title and serves the public in violation of state UPL rules. Limited License Legal Technicians (LLLT), Limited License Legal Providers (LLLP), and Legal Paraprofessionals (LP) are separate, state-created licenses. EC-1.8(c) allows expanded work only inside a program that lawfully authorizes it, and only if the paralegal follows that program’s rules. A CRP credential is not an LLLT license.

Reserved acts versus permitted work

The attorney must actually supervise. ABA Model Rule 5.3 is the supervision rule; Rule 5.5 is the “do not assist UPL” rule. Rubber-stamp review — the attorney never reads the complaint, never discusses the fee, never sees the client — is not supervision. A later timekeeping chapter will cover billing the paralegal’s time; for UPL purposes, remember that even excellent, billable paralegal work becomes UPL the moment the paralegal, not the lawyer, is the one giving the advice or making the call.

The information-versus-advice trap

This is the most common PCCE UPL item. Legal information is a general statement about the law or the legal system that is not applied to a particular person’s facts and does not recommend what that person should do. “The federal district court clerk’s office is on the third floor.” “Many jurisdictions have a two-year statute of limitations for negligence, but only the attorney can tell you what applies to you.” “This is what a complaint caption looks like.” Those sentences are information.

Legal advice is the application of law to a specific person’s facts plus a recommended course. “Your wreck was 23 months ago, so file this week in state court and reject the $15,000 offer.” That sentence selects a forum, applies a limitations period, and evaluates a settlement. It is advice even if you add “I am not a lawyer,” even if you charge nothing, and even if the client is a friend, a cousin, or a Facebook stranger. A signed waiver does not convert advice into information. Pro bono status does not convert advice into information. Experience does not convert advice into information.

Work the line with the facts in front of you:

• A caller asks, “How long do I have to sue my surgeon?” Information: “Medical-malpractice deadlines vary and often include a notice-of-claim step; I will have Attorney Chen call you.” Advice: “You have two years from the date of surgery, so you are fine until March.”
• A current client emails, “Should I accept the insurer’s $40,000 offer?” Information / process: “I will get this to Attorney Chen today; only the attorney can advise you on settlement.” Advice: “Take it — juries in this county never give more than $25,000 for a soft-tissue case.”
• A self-represented litigant in the hallway asks you to “just check” whether the affirmative defenses on a downloaded answer are the right ones. Checking and selecting defenses is legal judgment. Direct the person to the self-help center or to counsel.

ABA Formal Opinion 506 is consistent with this line. Trained intake personnel may collect facts the lawyer will use to decide eligibility and may explain how fees are charged. Whether they may answer a specific question depends on the question. On the PCCE, treat a specific “what should I do” question as reserved.

Drafting, investigation, and the signature line

Drafting is not UPL when it is done for attorney review. You may draft complaints, discovery, contracts, demand letters, and settlement releases. The attorney must exercise independent professional judgment before the document goes out, and the attorney (or the client, for a sworn verification) signs in the capacity the rules require. Federal Rule of Civil Procedure 11 attributes the pleading’s legal contentions to the attorney who signs it. A paralegal who signs “Jane Doe, Attorney for Plaintiff” has practiced law. A paralegal who signs a certificate of service as “Jane Doe, Paralegal for Attorney Chen,” if local rules allow that clerical certification, has not.

Factual investigation is permitted: locate witnesses, obtain medical records with a valid authorization, photograph a scene, prepare a chronology, and write a memo that says what the witness said. Crossing into advice happens when the memo to the client says “therefore you should sue for battery, not negligence.” Address strategy memos to the attorney.

Taking a deposition has two jobs inside it. Noticing the deposition, reserving the reporter, preparing exhibit binders, and attending are paralegal work. Examining the deponent — asking the questions, making the objections, deciding whether to go off the record — is a reserved advocacy act. A few administrative forums (for example, some Social Security hearings) authorize a nonlawyer agency representative by statute or agency rule. That is EC-1.8(c) territory. Absent that authority, do not pick up the examiner’s outline and start asking questions because “the attorney is running late.”

Unsupervised freelance document prep

A recurring fact pattern: a member of the public, not an attorney, hires a freelance paralegal to “just fill out” a will, an uncontested divorce, a bankruptcy petition, or a deed. The customer cannot afford a lawyer. The paralegal uses a widely available template, charges only a typing fee, and has the customer sign a statement that the paralegal is not an attorney.

That engagement is UPL in the ordinary jurisdiction. Selecting testamentary gifts, choosing divorce grounds, deciding which property is marital, or picking bankruptcy exemptions is legal judgment. A typing fee and a waiver do not change the character of the act. The correct move is to decline, explain that unsupervised legal document preparation for the public is the practice of law, and refer the person to a licensed attorney, a legal-aid office, or a court-authorized self-help program. If the jurisdiction has a registered Legal Document Preparer / Legal Document Assistant regime, that person may prepare documents at the client’s direction under that statute — and is usually required to be registered and bonded. A CRP title is not a substitute registration.

If instead an attorney retains the same freelance paralegal to draft the divorce packet, and the attorney reviews and signs it, the work is traditional delegated drafting. The difference is who is accountable. NFPA’s freelance definition assumes attorney accountability. Serving the public with no lawyer in the loop is the independent / rogue pattern.

Which option should the paralegal choose?

PCCE items are almost always “what should the paralegal do next?” Eliminate every option that has the paralegal exercising reserved judgment. Eliminate every option that treats a waiver, a discount, a friendship, or a lunch-hour favor as a license. Eliminate “ignore the client because paralegals may never speak to clients” — communication is allowed; advice is not. The surviving option usually has three pieces: disclose nonlawyer status, refuse the reserved act, and get the supervising attorney (or a referral) into the conversation.