Clarifying the Role of Legal Document Assistant (LDA)
As a Legal Document Assistant (LDA), I have often found myself in a quandary about how to provide the best service to my clients, enabling them to truly accomplish their self-help legal objectives, without crossing the line into forbidden territory. It is commonly understood that practicing law is exclusively within the domain of lawyers.
But what, exactly, is the “practice of law?”
Throughout the United States, courts, bar associations and legislative bodies have grappled with this issue and come up with a variety of tests to determine whether a particular activity constitutes the practice of law:
- The “commonly understood” test defines the practice of law as composed of activities that lawyers have traditionally performed.[1] There are exceptions to this test, including:
~Non-attorneys may undertake activities usually performed by attorneys, if those activities are incidental to the profession or business of the non-attorney.[2]
~Lay people are permitted to provide services that are commonly understood to be the practice of law as long as those services do not involve difficult or complex questions of law.[3] - The existence of an attorney-client relationship is sometimes used as a determining factor.[4]
- Other tests include whether the client believes he or she is receiving legal services, whether the activity involves the application of legal knowledge to the specific situation of an individual, and whether the services provided affect the recipient’s legal rights.[5]
Chapter 5.5 of the Business & Professions Code makes several references to the prohibition against non-attorney LDAs engaging in the practice of law. While the Business & Professions Code expressly prohibits the practice of law by individuals who are not active members of the State Bar,[6] the Code is silent on what, specifically, defines the “practice of law.”
The California Supreme Court addressed this issue in 1922, before the State Bar Act was enacted, but that definition is by no means carved in stone. In People v. Merchants Protective Corp., the court adopted the definition set forth by the Indiana Court of Appeals in 1893.[7] “As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.”[8] This definition was reaffirmed in 1970 by the California Supreme Court in Baron v. Los Angeles.[9]
This definition, however, continues to evolve. “Defining the practice of law has been a difficult question for the legal profession for many years. The emergence of new technologies such as the Internet has expanded the number of ways in which legal advice and information can be disseminated, which has increased the complexity of the task,” as noted in comments made by the Federal Trade Commission and Department of Justice, in response to the American Bar Association’s proposed Model Definition of the Practice of Law. “The boundaries of the practice of law are unclear and have been prone to vary over time and geography.”[10]
In 2006, the California Supreme Court, referring to Merchants, held: “Notwithstanding the foregoing historical rule, a number of sources provided for exceptions to the rule. First, legislation was enacted that eroded the broad rule against the corporate practice of law and the practice of other professions. As noted, the 1968 Professional Corporation Act[11] permits the corporate practice of law even for profit, subject to various restrictions that are intended to safeguard client interests against the profit motive, including registration with the State Bar and a requirement of corporate ownership and governance solely by attorneys.”[12]
Similarly, legislation enacted in 1998 specifically authorizes non-attorneys to provide legal document preparation services.[13] Such activities necessarily include “the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court,” and clearly fall within the scope of prohibited activity under the previously-accepted definition of the practice of law.
In Baron, the Court has also noted that “ascertaining whether a particular activity falls within this general definition may be a formidable endeavor.”[14] In reaching its conclusion, the Baron Court stated, “In close cases, the courts have determined that the resolution of legal questions for another by advice and action is practicing law ‘if difficult or doubtful legal questions are involved which, to safeguard the public, reasonably demand the application of a trained legal mind.’”[15]
In recent years, several organizations and agencies have also weighed in on the issue, proffering their own opinions about what constitutes the practice of law.
In 2003, the American Bar Association (ABA) published the following recommendation regarding the definition of the “practice of law”:
"RESOLVED, That the American Bar Association recommends that every state and territory adopt a definition of the practice of law.
FURTHER RESOLVED, That each state’s and territory’s definition should include the basic premise that the practice of law is
the application of legal principles and judgment to the circumstances or objectives of another person or entity.
FURTHER RESOLVED, That each state and territory should determine who may provide services that are included within the state’s or territory’s definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public. The determination should include consideration of minimum qualifications, competence and accountability.[16] "
This common-sense definition was recommended following a lengthy process which included significant public comment from government agencies, attorneys, non-attorney legal service providers, bar associations, and advocacy organizations.[17]
The draft version of this recommendation, released in 2002, was significantly broader in scope and thus heavily criticized. The 2002 draft stated that an individual was engaged in the practice of law when engaging in any of the following activities on behalf of another:
- Giving advice or counsel to persons as to their legal rights or responsibilities or to those of others;
- Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person;
- Representing a person before an adjudicative body[18], including, but not limited to, preparing or filing documents or conducting discovery; or
- Negotiating legal rights or responsibilities on behalf of a person.
This proposed Model Definition came under heavy fire, with accusations that it is overbroad, contrary to the public interest, does not protect consumers from harm, and could restrain competition between lawyers and non-lawyers.
In an article addressing the ABA’s proposed Model Definition, Attorney James C. Turner wrote, “There is a better approach. We should limit the concept of unauthorized practice by establishing a common-sense, brightline test that equates it to fraudulent practice – that is, saying you’re a lawyer when you’re not…Consumers understand this, and so should the profession.” In conclusion, Turner stated, “Whether the ABA likes it or not, lawyers cannot fully serve the legal needs of the public, and non-lawyer legal providers are here to stay. It is time to come into the 21st century and repudiate protectionist practices that hurt consumers and justifiably engender disdain for the legal profession.”[19]
In public comments made by the Federal Trade Commission and Department of Justice, Acting Assistant Attorney General Pate, et al., wrote, “If adopted by state governments, the proposed Definition is likely to raise costs for consumers and limit their competitive choices. There is no evidence before the ABA of which we are aware that consumers are hurt by this competition and there is substantial evidence that they benefit from it. Consequently, we recommend that the proposed Model Definition be substantially narrowed or rejected.”[20]
“We conclude that the proposed definition is not in the public interest because the harms it imposes on consumers by limiting competition are likely much greater than any consumer harm that it prevents.”[21]
In 2007, a similarly draconian definition of the “practice of law” was proposed in Hawai’i.[22] In public comments regarding the proposed rule, Thomas O. Barnett, United States Assistant Attorney General, et al., wrote, “The Justice Department and the [Federal Trade Commission] believe that the definition of the practice of law should be limited to activities for which specialized legal knowledge and training is demonstrably necessary to protect consumers and an attorney-client relationship is present.” [23] Barnett, et al. went on to urge the Hawai’I Supreme Court to “consider adopting language similar to that found in Rule 49 of the District of Columbia Court of Appeals. Rule 49 defines the practice of law as ‘the provision of professional legal advice or services where there is a client relationship of trust or reliance.’[24] The Commentary to Rule 49 makes clear that giving advice or counsel to others as to legal rights or responsibilities is not necessarily the practice of law. Rather, such services may be the practice of law if they are provided in the context of an attorney-client relationship.”[25]
So what does all of this mean in the context of the LDA-client relationship? How do we, as LDAs, best serve the interests of our clients and ensure that we further the access to justice movement while maintaining sound business practices that are appropriate and correct under the law?
California case law has established that providing the client with legal information – even a detailed manual containing specific advice – does not constitute the practice of law if the LDA refrains from personally advising the client regarding his particular case.[26]
Furthermore, significant First Amendment concerns are raised in connection with the outright prohibition of “any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options…”[27] if such comments fail to meet California’s accepted definition of what constitutes the practice of law, e.g. providing advice if difficult or doubtful legal questions are involved which demand the application of a trained legal mind.[28]
By refraining from directly resolving a a client’s legal questions “by advice and action…if difficult or doubtful legal questions are involved which, to safeguard the public, reasonably demand the application of a trained legal mind,” the Legal Document Assistant should remain free from any finding of the unauthorized practice of law, or violation of Business & Professions Code section 6400, et seq.
[1] State Bar of Arizona v. Arizona Land Title and Trust Co., 366 P2d 1, 5-11 (Ariz. 1961)
[2] Virginia v. Jones & Robins, Inc., 41 S.E.2d 720, 727 (Va. 1947)
[3] Agran v. Shapiro, 127 Cal.App.2d Supp. 807, 818 (1954)
[4] Va. Sup. Ct. Unauthorized Practice Rules, Section B, Definition of the Practice of Law
[5] See Guidelines on Mediation and the Unauthorized Practice of Law, Department of Dispute Resolution Services of the Supreme Court of Virginia, (2001)
[6] Cal. Bus. & Prof. Code § 6125, et seq.
[7] Ely v. Miller, 34 N.E. 836 (Ind. 1893)
[8] People v. Merchants Protective Corp., 209 P. 363, 365 (Cal. 1922)
[9] Baron v. Los Angeles, 2 Cal.3d 535 (1970)
[10] Ltr. from the R. Hewitt Pate, Acting Assistant Attorney General, United States Department of Justice, et. al. to the ABA Task Force on the Model Definition of the Practice of Law, p. 2 (December 20, 2002)
[11] Cal. Corp. Code § 13400, et seq.
[12] Frye v. Tenderloin Housing Clinic, Inc., 38 Cal.4th 23, 38 (2006) (login required to access link)
[13] Cal. Bus. & Prof. Code § 6400, et seq.
[14] Baron, 2 Cal.3d at 543
[15] Id. at 543, citing Agran, 127 Cal.App.2d Supp. at 818 (emphasis added)
[16] Recommendation, Task Force on the Model Definition of the Practice of Law (ABA 2003) (emphases added)
[17] For complete details of the public comments submitted and presented at the hearing, click here
[18] For the purposes of this recommendation, an “adjudicative body” includes a court, mediator, arbitrator, legislative body, administrative agency or other body acting in an adjudicative capacity.
[19] James C. Turner, Lawyer vs. Nonlawyer, 26 Legal Times (February 3, 2003)
[20] Ltr. from R. Hewitt Pate, et al., p. 3
[21] Id., at p. 4
[22] Proposed Addition to the Rules of the Supreme Court of the State of Hawai’i
[23] Ltr. from the Thomas O. Barnett, Assistant Attorney General, United States Department of Justice, et. al. to the Judiciary Public Affairs Office of the State of Hawai’i, p. 1 (January 25, 2008)
[24] D.C. Court of Appeals Rule 49(b)(2) (2004) (emphasis added by Barnett, et al.)
[25] Ltr. from Barnett, et al., p. 8 (emphasis in original)
[26] People v. Landlords Professional Services, 215 Cal.App.3d 1599 at 1608 (4th Dist. 1990)
[27] Cal. Bus. & Prof. Code § 6400(g)
[28] Baron, 2 Cal.3d at 543
