Regulation of Non-Lawyers
There are times when people will tell you they can
give you legal advice. Caution: Only Arizona lawyers can advise you
about your legal rights in this state. The following questions and
answers help explain more about the unauthorized practice of
law.
Who regulates the conduct of
non-lawyers when they are acting like lawyers?
Rule 31 of the Arizona Supreme
Court gives the State Bar of Arizona the authority to
investigate allegations of unauthorized practice of law and to file
and prosecute actions and proceedings related to such activities.
The State Bar of Arizona acts as the prosecutor in
unauthorized cases, files the cases with the superior courts, and
trials are held before judges of the superior courts.
The Board of Certified Legal Document Preparers has
the authority to investigate and prosecute actions and proceedings
against Certified Legal Document Preparers.
Which organization has
jurisdiction over the practice of law?
The Arizona Supreme Court affirms its
jurisdiction over the practice of law in Rule 31 of the Supreme
Court Rules. The Court has the inherent authority to
regulate and prevent the practice of law by individuals who are not
admitted to practice law in Arizona.
What is the "practice of
law?"
The practice of law
is defined by Arizona Supreme Court Rule. Rule 31(a)(2)(A)
states:
Practice of law
means providing legal advice or services to another by:
•Preparing any
document in any medium intended to affect or secure legal rights
for a specific person or entity;
•Preparing or
expressing legal opinions;
•Representing
another in a judicial, quasi-judicial, or administrative
proceeding, or other formal dispute resolution process such as
arbitrations and mediations;
•Preparing any
document through any medium for filing in any court, administrative
agency or tribunal for a specific person or entity; or
•Negotiating legal rights or
responsibilities for a specific person or entity.
What is the "unauthorized
practice of law?"
The unauthorized
practice of law is defined by Arizona Supreme Court Rule.
Rule 31(a)(2)(B) states:
Unauthorized
practice of law includes but is not limited to:
•Engaging in the
practice of law by persons or entities not authorized to practice
pursuant to to paragraphs (b) or (c) or specifically admitted to
practice pursuant to Rule 33(d); or
•Using the designations
lawyer, attorney at law, counselor at
law, law, law office, J.D.,
Esq., or other equivalent words by any person or entity
not authorized to practice pursuant to to paragraphs (b) or (c) or
specifically admitted to practice pursuant to Rule 33(d), the use
of which is reasonably likely to induce others to believe that the
person or entity is authorized to engage in the practice of law in
this state.
Who can
practice law in Arizona?
Only active members of the State Bar of
Arizona and other persons who comply with the Arizona Supreme
Court's rules regarding the practice of law may practice law in
Arizona.
Who can provide legal advice
in Arizona?
Only attorneys admitted to the State
Bar of Arizona may provide legal advice in Arizona.
What are "certified legal
document preparers?"
The Legal Document Preparer Program
certifies legal document preparers in Arizona. Legal Document
Preparers are certified individuals who prepare or provide legal
documents without the supervision of an attorney. Legal Document
Preparers may provide general legal information but may not give
legal advice. Effective July 1, 2003, all individuals and
businesses preparing legal documents without the supervision of an
attorney in good standing with the State Bar of Arizona, must be
certified pursuant to Rule 31 and Arizona Code of Judicial
Administration §7-208.
What should I do if I am
harmed by a non-lawyer acting like a lawyer?
Today, the State Bar of Arizona has the
authority to bring an action to enforce rules regarding non-lawyers
engaging in the unauthorized practice of law. You may wish to file
a complaint regarding the conduct of the non-lawyer. The State Bar
will review the allegations and determine whether it is appropriate
to prosecute the individual who appears to be engaging in the
unauthorized practice of law or the Bar may refer, coordinate, and
assist the investigation and prosecution of the matter by the
Office of the Attorney General, United States Bankruptcy Trustees,
Certified Legal Document Preparer Program or other agencies.
How do I make a complaint to
the State Bar of Arizona?
You may make allegations regarding the
unlicensed practice of law by contacting the unauthorized practice
of law attorney for the State Bar of Arizona at 4201 N. 24th
Street, Suite 100, Phoenix, Arizona 85016-6266, or by telephone at
602.340.7292. Your complaint must be in writing, preferably
on a Bar form. If a Bar form is not used, be certain
to tell the Bar your name, address and phone number as well as the
name, address and phone number of the non-lawyer if you have that
information. Then try to set forth the facts on which your
allegations are based. Attach copies of any court papers,
documents, letters or other materials that pertain to your
allegations when you write the Bar office. Please do
not send the original documents. Otherwise, you can
obtain a complaint form by calling 602.340.7292 or requesting one via email. Complaint form found on the Certified Legal
Document Preparer's Web site.
How do I make a complaint
about a Certified Legal Document Preparer?
You can make a
complaint about a Certified Legal Document Preparer by completing
the
If I suffer a loss as a
result of the unauthorized practice of law, can the the State Bar
get my money back?
The State Bar is authorized to seek
restitution in appropriate cases. If a lawsuit is filed, the State
Bar will seek restitution but it will not seek to recover money
damages for you. The State Bar seeks in its lawsuits to enjoin
the unauthorized practice of law in the future. Sometimes as a
result of a an unauthorized practice of law investigation, the
complaint is resolved by an agreement with the respondent that
includes restitution to the complaining person. However, the
State Bar cannot promise such a result.
What happens after I file a
complaint?
All matters received by the State Bar
of Arizona are reviewed by Bar UPL Counsel to determine if the Bar
has jurisdiction to investigate the allegations. If the State Bar
of Arizona has jurisdiction, the inquiry is considered as a
complaint. The complaint may be referred to an investigator of the
State Bar for investigation or may be investigated by UPL Counsel.
If the Bar determines that there is probable cause, the complaint
may be prosecuted in Superior Court.
Will the non-lawyer know
about my complaint?
Probably. The nonlawyer may be sent a
copy of your complaint during the course of the investigation.
Additionally, if the nonlawyer asks who complained, your name
will be given. Anonymity will only be granted in extreme
circumstances and should be discussed with the UPL attorney before
filing a complaint.
What will filing an inquiry
against a non-lawyer cost me?
No cost or fee is charged for filing an
inquiry against a non-lawyer. All members of the State Bar of
Arizona are required to pay dues which cover the cost of the
unlicensed practice of law program. You may, however, be required
to devote some of your time to attending hearings and testifying at
trial. When the superior court issues an injunction, the non-lawyer
may be ordered to pay the costs involved.
Are the records regarding
cases against non-lawyers open to the public?
The Supreme Court Rules permits
disclosure of certain information. This rule must be consulted to
determine what information is available to the public.
Will there be a trial?
If the State Bar recommends litigation, UPL Counsel will file a
formal complaint against the non-lawyer before the superior court.
If there is no agreement reached by the State Bar and the
non-lawyer there will be a trial on the complaint.
The judge of the Superior Court will hear all relevant evidence,
which may include the complainant's testimony, that of the
non-lawyer and any other witnesses. The judge then reaches a
decision and files an order. The order may enjoin the non-lawyer
from further activity and award restitution and cost.
See a
list of the Superior Court actions taken by the State Bar against
non-lawyers.
What is the purpose of the investigation and prosecution
of the unauthorized practice of law?
The purpose of the unauthorized practice of law system is
to protect the public. The State Bar of Arizona and the courts can
prevent an individual or company from continuing to engage in the
unauthorized practice of law by issuing a civil injunction or by
entering into an agreement to cease and desist engaging in the
practice of law. Supreme Court Rules permits disclosure of certain
information.
The State Bar of Arizona, as a prosecutorial agency, does not
and cannot give individual legal service or advice to any person
making allegations. Nor can the State Bar of Arizona assist you in
getting money damages.
However, the court may require restitution as part of its
judgment. Any other loss you may have sustained as a result of the
conduct of the non-lawyer cannot be recovered through a Bar
unlicensed practice of law proceeding. If you have suffered a
financial or property loss, your rights must be enforced by the
usual legal methods against the person responsible for the
loss.
In addition, the Arizona Bar has no authority to review a court
decision on a particular matter and the Bar's unauthorized practice
of law system should never be used as a substitute for an appeal of
such cases.
What kinds of actions can be taken against a
non-lawyer?
If the UPL attorney and the State Bar determine that the
conduct does not involve the unlicensed practice of law, that it is
an isolated incident which will not be repeated and will not result
in a likelihood of future public harm, that the individual is no
longer in Arizona or that the complaining party does not wish to
cooperate with the investigation, the State Bar will close the
case.
If the UPL attorney and the State Bar of Arizona determine that
the individual did engage in the unlicensed practice of law and
that the activity is likely to continue, the State Bar may request
that the individual sign a cease and desist agreement that can be
entered as an order of the court. The non-lawyer will acknowledge
that the conduct is the unlicensed practice of law and will agree
to refrain from engaging in the conduct in the future.
If the conduct involves the unlicensed practice of law and the
individual will not sign a cease and desist agreement, the UPL
attorney and State Bar can recommend prosecution. Prosecution is
before the superior court and seeks a civil injunction which orders
the non-lawyer to stop engaging in UPL. The Bar can also bring an
action before the Superior Court for contempt.
If the conduct of the non-lawyer appears to be a violation of
the consumer fraud statute, the matter may also be referred to the
Office of the Attorney General for their review and investigation.
If the conduct of the non-lawyer appears to violate Section 110 of
the United States Bankruptcy Code, the matter may also be referred
to U. S. Bankruptcy Trustees.
Complaints that allege unauthorized practice of law in the area
of immigration may be referred to the Office of the Attorney
General for their review and investigation. Unauthorized Practice
of Law in immigration matters is a violation of Arizona Revised
Statutes that make such practice a felony.
What can I expect if I file
an inquiry against a non-lawyer?
• You can
expect that your inquiry will receive the State Bar of Arizona's
prompt and full attention.
• You can
expect that every attempt will be made to deal with your inquiry in
a manner which is fair to both you and the individual about whom
you inquire.
• You can expect to receive
written notice of the status and disposition of your complaint.
What shouldn't I expect if I
file an inquiry against a non-lawyer?
Don't expect your allegation to be
decided just because of what you claim to have happened. Nor, in
fairness to you, can the non-lawyer about whom you inquire expect
the matter to be decided just on the basis of his or her version of
what happened. The final decision must depend upon the weight of
the available and relevant evidence and testimony.
What should I know about
immunity and confidentiality?
Once an inquiry is reviewed and a
file is opened, the fact that a complaint is pending and the status
of the complaint can be disclosed. Once the matter is closed
or proceeds to with prosecution, the matter becomes public
information and the part of the file defined as the UPL record is
available to anyone who wishes to see it. Review of files is
available only during specific days and at certain times. You
should contact the State Bar of Arizona to determine when files
will be available. A fee for review and/or copies is required.
You and witnesses are not prohibited from talking about your
problem with the non-lawyer or revealing that you have made an
inquiry with the State Bar of Arizona. You may also give others
copies of any documents you give to or receive from the State Bar
or the non-lawyer involved.
Because inquiries and complaints are not confidential, you
do not have absolute immunity from suit for filing your
inquiry. The general law of libel and slander applies.
Regrettably, the State Bar cannot pre-review your inquiry to tell
you if you have a good case. Generally, you cannot be successfully
sued if you do not act in bad faith or with malice. If you
are unsure, you should seek independent legal advice.
What is the UPL Advisory
Committee?
The UPL Advisory Committee's
mission is to protect consumers from harm caused by the
unauthorized practice of law. The Committee is responsible for
evaluating and proposing rules to regulate the unauthorized
practice of law, educating the public about UPL, providing
affirmative support for effective and accountable delivery of legal
services, and contributing to CLE programs. The UPL Advisory
Committee also issues written advisory opinions. All opinions
rendered are non-binding and advisory only, based on the
Committee's reading of the Arizona Supreme Court Rules regarding
the Practice of Law and the Certified Legal Document Preparer Code.
Although non-binding, these opinions constitute an important
resource for Arizona attorneys and the public to identify
applicable rules, point out relevant UPL Advisory opinions, provide
other resources, and give guidance on practice of law
questions.
Summaries of Recent
Opinions
Request a UPL
Opinion
The request for a written advisory opinion must be in writing, and
either mailed, faxed, or hand-delivered to an office of the State
Bar of Arizona. The request should include all of the operative
facts upon which the request for opinion is based, and identify the
specific unauthorized practice of law question. Please include the
name and address of the person, and organization where relevant.
The Committee will not consider or issue advisory opinions for
matters pending in any Arizona court or other tribunal; however, it
may make requests as to pending issues from a court or tribunal
directly.
For More Information
Contact Ward Parker, Unauthorized Practice of Law Attorney for the
State Bar of Arizona at 602.340.7266, or email UPL@staff.azbar.org.
Mailing address:
Unauthorized Practice of Law Attorney
State Bar of Arizona
4201 N. 24th Street, Suite 100
Phoenix, AZ 85016-6266