Regulation of Non-Lawyers
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 actions and proceedings related to such activities. The State Bar of Arizona 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 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 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 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 investigate and file a complaint against the individual who appears to be engaging in the unauthorized practice of law. Alternatively, 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 administrator 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.
How do I make a complaint about a Certified Legal Document Preparer?
You can find a complaint form and complaint review procedures online at the Supreme Court's Certification and Licensing website.
If I suffer a loss as a result of the unauthorized practice of law, can the State Bar get my money back?
The State Bar is authorized to seek an order of restitution in appropriate cases. If a lawsuit is filed, the State Bar may request 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 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 the State 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 to establish a violation of the rule by clear and convincing evidence, the complaint may be prosecuted in Superior Court.
Will the non-lawyer know about my complaint?
Probably. Typically the nonlawyer will 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 permit 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 plus fees and costs.
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 permit disclosure of certain information.
The State Bar of Arizona, as an administrative 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 State 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 is not likely to 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 filing a civil action in the superior court seeking 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.
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 formal court action, 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.
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 the Unauthorized Practice of Law Administrator for the State Bar of Arizona at 602.340.7266, or email UPL@staff.azbar.org.
Unauthorized Practice of Law Administrator
State Bar of Arizona
4201 N. 24th Street, Suite 100
Phoenix, AZ 85016-6266