pro se vs. practicing law without a license
wcsn...@gmail.com
I am a plaintiff pro se in a civil land use case. My neighbor is
entering the case as co-plaintiff, also pro se. Her interests are
aligned with my own. I am much more knowledgeable about the law.
Where do we draw the line between "pro se co-plaintiffs helping each
other" and "practicing law without a license" if I help her write
pleadings, etc. My plan is to co-write and co-sign all pleadings.
The opposing attorney has already expressed concern that I will be
doing most of the legal work for the neighbor.
Many thanks,
Will
asc...@gmail.com
news:vjt2a4tf0tjsollec...@4ax.com...
There is no "line" because one pro se litigant "helping" another is
not an "exception" to the unauthorized practice of law.
If you were a licensed lawyer, your "plan" would earn you disbarment.
Show some decency and leave your neighbor out of it.
Dick Adams
The opposing attorney is raising this issue to complicate
things for you. But if you think he's making an impact
now, wait until you see him in court or at a zoning
hearing.
I was in a similar situation about 10 years ago and I had
all the relevant case law on my side. I watched an
extremely competent attorney dismiss all that case law in
matter of seconds. I was prepared to argue, but not to
respond.
The best legal advice I ever give is "You need an attorney."
Dick - I never was an attorney
Mike Jacobs
> I am a plaintiff pro se in a civil land use case.
No problem there.
> My neighbor is
> entering the case as co-plaintiff, also pro se. Her interests are
> aligned with my own. I am much more knowledgeable about the law.
But you are not, I gather, a licensed lawyer.
> Where do we draw the line between "pro se co-plaintiffs helping each
> other" and "practicing law without a license" if I help her write
> pleadings, etc.
You can't help her draft pleadings, etc. Anything at all you do of
that nature is either very close to, or over the line of "unauthorized
practice of law" (UPL).
Now, once you file something with the court clerk, there is nothing
stopping her from going down to the courthouse, photocopying your
filings that are already part of the public record, and then copying
your research, your arguments, even your very language into her own
pleadings that she files in her own name (changing the names to
protect the innocent, as it were) (so long as you do not choose to
prosecute her for copyright violations) but presumably, if you both
have a deadline to file something by a certain date and you get yours
in to the clerk just scraping under the limbo bar as they are closing
the door on the last day to file, your neighbor is going to be in a
fix because she won't have enough time left to copy your work, and she
will miss her deadline. I'm sure you would soon tire of the burden
of getting all your own pleadings filed a week ahead of time if you
and she intended to commit a subterfuge ("wink wink, nudge nudge") and
carry out your plan through such transparently "straw" transactions.
> My plan is to co-write and co-sign all pleadings.
Bad plan. State laws vary (and you, Mr. Knows More About The Law,
don't tell us that basic datum of what jurisdiction's law you believe
applies here) but IMO just about all of them would find such a
practice to be UPL.
> The opposing attorney has already expressed concern that I will be
> doing most of the legal work for the neighbor.
He's doing you a favor by warning you of what you are getting into,
before you dig yourself a hole from which it might be very expensive
and embarrassing for you to dig yourself out. As you may or may not
already know, UPL is a crime in most states.
You feel you are competent to represent your own interests. So be
it. Limit yourself to that. You do not gain any justifiable
advantage in the litigation for your own legitimate interests by
helping your neighbor pursue her, separate, interests. If you cast
her to her own devices, you would not be any worse off, and what
happens to her case status is legally none of your business to do
anything about. I certainly hope you were not contemplating taking
compensation of any kind from the neighbor for performing this
"service" for her; IMO that would remove any possible remaining doubt
that what you were doing was UPL.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Cy Pres
<miatt...@gmail.com> wrote:
>On Aug 12, 7:40=A0am, wcsny...@gmail.com wrote:
>> I am a plaintiff pro se in a civil land use case. =A0My neighbor is
>> entering the case as co-plaintiff, also pro se. Her interests are
>> aligned with my own. =A0I am much more knowledgeable about the law.
>> Where do we draw the line between "pro se co-plaintiffs helping each
>> other" and "practicing law without a license" if I help her write
>> pleadings, etc. =A0My plan is to co-write and co-sign all pleadings.
>There is no actual definition of the practice of law. Courts make
>that determination on a case-by-case basis. Some situations are
>closer calls than others, but I assure you that if you write a
>pleading (in whole or in part), you are practicing law. It doesn't
>matter who signs it. And there is no such exception as "pro se co-
>plaintiffs helping each other".
There is an exception for pro se litigants. They are allowed to
represent themselves. Other people are allowed to assist them to some
extent without necessarily practicing law without a license. Assisting
UPL charges require that the person being assisted actually practiced
law in violation of the law. People are allowed to practice law in
the context of pro se representation of themselves. Assisting them to
do so is not a violation of the law, as you are not assisting them in
doing anything which they were not entitled to do. Lawyers are
sometimes paid hourly to advise pro se litigants, or otherwise limit
their representation of a client to an advisory or consultative role.
They aren't in violation of the rules relating to unauthorized
practice of law simply for assisting a pro se litigant to do what she
would be entitled to do without legal advice.
Some examples of people who assist pro se litigants without violating
the law are the authors and publishers of "legal self-help" books,
which often give advice to pro se litigants in drawing wills,
representing themselves in tenant-landlord disputes, and other areas
of law. Others are so-called "jailhouse lawyers" who help fellow
inmates prepare their legal papers.
I'm pretty sure, however, that drafting pleadings and submitting them
in the name of someone else is going to amount to unauthorized
practice of law. Perhaps there are jurisdictions where this would be
allowed, but I can't think of any offhand. I don't think it can be
easily construed as the practice of law allowed to pro se litigants. I
think (and I am not giving advice) that fellow pro se litigants could
discuss their shared legal situation and advise each other as to what
they thought would be in their mutual interest, and possibly even talk
about language to use.
I doubt, however, that many courts would accept co-signed papers in
which both parties are, effectively, proposing to act as counsel for
each other. Pro se litigants are not entitled to represent each
other.
There are also ethics issues. While a pro se litigant may practice
law on her own behalf, and even be cut a fair amount of slack for
procedural irregularities, a pro se litigant is nevertheless held to
the ethical standards and rules to the extent it is reasonable to do
so. I.e. a pro se litigant is subject to Rule 11 sanctions. I'm not
sure if the Model Rules of Professional Conduct actually apply to a
pro se litigant, but a lawyer who was both a party in a proceeding and
attempted to represent a co-plaintiff would face serious conflict of
interest issues should their interests diverge during the course of
the litigation. E.g. a person (A) and her neighbor (B) are involved
in a land dispute with X over the possession of Blackacre. Neither
are lawyers. (A) is actually a lawyer but (B) isn't. (A) represents
both herself and (B). At the time, their interests are completely
congruent. If they win their joint action against (X), (A) and (B)
split the land. Later, the situation gets more complicated. There
are potential outcomes in which a finding against (X) could result in
either (A) or (B) getting the ENTIRE parcel of land in controversy.
Now, (A)'s personal interests are clearly adverse to (B). (A) could
use her superior knowledge of the law in order to gain an advantage
against both (B) and (X), and is representing (B). I don't see why an
ethical dispute like this would not be a serious ethics issue. Since
practicing law without a license is illegal in any case, the nonlawyer
should never find themselves in such a difficult ethical dilemma.
This, alone, is a reasonable argument for not allowing joint pro se
litigants to file papers in each other's behalfs and thus practice
law.
I think the issue, though, is whether the court they're doing this
before will tolerate it. If the court chooses to accept it
(presumably over the objection of the adverse party), and their
superior court will find this not an abuse of discretion, they might
want to do it. There are good ethical arguments though that even
people who "knows the law better" than their neighbor shouldn't
undertake to represent them and file joint legal papers, even if the
court chooses to allow it.
If I were the adverse party in this case I'd object to such a
practice, however, due to the likelihood of disputes over the practice
itself ultimately inefficiently eating up judicial resources. I think
the conflict of interest is obvious enough that an adverse party is
justified in objecting to it. Conflicts of interest which arise
during the course of litigation often cause a total train wreck when
newly adverse parties suddenly, in the middle of it all, want to argue
with each other. Even an adverse party against both of them has the
right to an efficient resolution of the controversy, and to raise the
issue that the conflict of interest makes an efficient resolution
unlikely enough that the two adverse pro se parties should be
compelled to represent only themselves.
Bob Stock
>There is an exception for pro se litigants. They are allowed to
>represent themselves. Other people are allowed to assist them to some
>extent without necessarily practicing law without a license. Assisting
>UPL charges require that the person being assisted actually practiced
>law in violation of the law. People are allowed to practice law in
>the context of pro se representation of themselves. Assisting them to
>do so is not a violation of the law, as you are not assisting them in
>doing anything which they were not entitled to do. Lawyers are
>sometimes paid hourly to advise pro se litigants, or otherwise limit
>their representation of a client to an advisory or consultative role.
>They aren't in violation of the rules relating to unauthorized
>practice of law simply for assisting a pro se litigant to do what she
>would be entitled to do without legal advice.
[snip]
Unauthorized practice of law is controlled by each state, and the
rules vary. I would be very careful of assisting a pro se without
knowing the rules in that state.
Your example of lawyers assisting pro ses is not relevant as a
licensed lawyer can't be accused of unauthorized practice of law.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
> People are allowed to practice law in
>the context of pro se representation of themselves. Assisting them to
>do so is not a violation of the law, as you are not assisting them in
>doing anything which they were not entitled to do.
The assistance itself can be illegal.
> Lawyers are
>sometimes paid hourly to advise pro se litigants, or otherwise limit
>their representation of a client to an advisory or consultative role.
>They aren't in violation of the rules relating to unauthorized
>practice of law simply
because they're lawyers, hence _authorized_ to practice law.
>Some examples of people who assist pro se litigants without violating
>the law are the authors and publishers of "legal self-help" books,
Who have sometimes been charged with it.
But note that an author isn't providing specific fact-based advice, so
the First Amendment triumphs.
>I'm pretty sure, however, that drafting pleadings and submitting them
>in the name of someone else is going to amount to unauthorized
>practice of law.
Drafting them for the other person to submit is also UPL.
Seth
Cy Pres
>In article <hg88a4du3qp9ctv6s...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>> People are allowed to practice law in
>>the context of pro se representation of themselves. Assisting them to
>>do so is not a violation of the law, as you are not assisting them in
>>doing anything which they were not entitled to do.
>The assistance itself can be illegal.
If the assistance is not illegal, it does not become assisting UPL
simply because one is assisting a pro se litigant. There is no law
against providing otherwise lawful assistance to someone to assist
them to do what they're entitled to do on their own.
I am discussing two different things. UPL itself, and ASSISTING UPL.
Lawyers are prohibited additionally, by professional conduct rules,
from both conducts, separate from any criminal or civil prohibitions.
>> Lawyers are
>>sometimes paid hourly to advise pro se litigants, or otherwise limit
>>their representation of a client to an advisory or consultative role.
>>They aren't in violation of the rules relating to unauthorized
>>practice of law simply
>because they're lawyers, hence _authorized_ to practice law.
Neither lawyers NOR nonlawyers are allowed to assist the unauthorized
practice of law. It is not, however, UPL for pro se litigants to
represent themselves, nor for a lawyer (or a nonlawyer) to assist them
to do so.
>>Some examples of people who assist pro se litigants without violating
>>the law are the authors and publishers of "legal self-help" books,
>Who have sometimes been charged with it.
>But note that an author isn't providing specific fact-based advice, so
>the First Amendment triumphs.
Thus, they've generally won these cases, and it is fairly well
established in most jurisdictions that these practices do not
constitute either UPL or assisting UPL.
>>I'm pretty sure, however, that drafting pleadings and submitting them
>>in the name of someone else is going to amount to unauthorized
>>practice of law.
>Drafting them for the other person to submit is also UPL.
I think this would be situation dependent. For instance, it would
clearly not be illegal for the other person to file them in the public
record, whereupon the other pro se then basically copied the filing,
substituting their own name or facts. I fail to see anything
substantively different in handing them a copy before filing it.
Additionally, unrepresented co-parties in litigation are entitled to
communicate with each other, and I see no reason why that wouldn't
extend to strategy or planning, sharing proposed drafts for filings,
or any other communication not otherwise prohibited. Where such
conduct might shade over into UPL is probably going to have a lot to
do with the jurisdiction in question, and possibly even the particular
judge and the specifics of the legal situation. It would probably
have to do with whether one of the parties was "acting like a lawyer"
more than like a co-litigant, perhaps overreaching for their own
benefit, or exploiting their superior knowledge to the other's
detriment. There are serious ethics issues raised by situations like
this, but IMO they are not mostly UPL-related.
Therefore, I don't think the line is particularly clear in this case,
but I'm pretty sure that signing any paper on behalf of another party
crosses it, so the proposed scheme of co-signing each other's pleading
probably constitutes UPL by both parties. I'm not convinced they need
to step that far back to be safely over the line, though of course,
they should consult legal counsel simply for advice on that subject.
It's probable the court will lay down its views on what activities are
prohibited, if the other side is (IMO reasonably) making an issue of
it.
Jurisdictionary
> entering the case as co-plaintiff, alsopro se. Her interests are
> aligned with my own. =A0I am much more knowledgeable about the law.
> Where do we draw the line between "pro seco-plaintiffs helping each
> other" and "practicing law without a license" if I help her write
> The opposing attorney has already expressed concern that I will be
> doing most of the legal work for the neighbor.
>
> Many thanks,
>
> Will
Will ...
Having practiced law more than 22 years as a licensed attorney, it
is my view (and a tenable one) that the line is drawn between "legal
education" and "legal advice and assistance".
Though the Bar has thus far, unfairly of course, limited the
public's right to learn even the most basic of legal truths so its
members (me included) can charge unbelievable high prices for our
services, there is no limitation on one's right to "teach" others what
you know ... so long as you do not "teach" someone what to do in a
particular fact situation. Therein lies the limit.
Teach everyone!
Everyone has a right to know how our justice system works!
Indeed, it is a moral crime for the legal profession to have hidden
legal knowledge from the people of this nation and the world, for that
matter.
Teach.
Just don't address particular fact situations unless they are posed
as purely hypothetical.
Then you cannot be accused of practicing law ... which is the
rendering of advice or assistance.
Public Legal Education is moral imperative ... too long ignored by
those who should be teaching us.
Hope this helps clear the air somewhat.
=2E.. Jurisdictionary
Bob Stock
>I am discussing two different things. UPL itself, and ASSISTING UPL.
>Lawyers are prohibited additionally, by professional conduct rules,
>from both conducts, separate from any criminal or civil prohibitions.
[snip]
>Neither lawyers NOR nonlawyers are allowed to assist the unauthorized
>practice of law. It is not, however, UPL for pro se litigants to
>represent themselves, nor for a lawyer (or a nonlawyer) to assist them
>to do so.
I'm aware of laws that prohibit non-lawyers from practicing law. I'm
aware of professional rules that prohibit lawyers from assisting
others in UPL. What laws are there that prohibit non-lawyers from
assisting others in UPL? Why would there need to be such a law? If
the non-lawyer is doing something that constitutes the practice of
law, then he's already prohibited from doing that.
Without knowing all the laws and rules in the different states, if a
non-lawyer assists a pro se, the question would be whether the
assistance constitutes the practice of law. If it does, it would
arguably be prohibited.
Jurisdictionary
> On Sat, 16 Aug 2008 06:46:08 -0400, Cy Pres <c.p...@yahoo.com> wrote:
> >Lawyers are prohibited additionally, by professional conduct rules,
> >from both conducts, separate from any criminal or civil prohibitions.
> [snip]
> >Neither lawyers NOR nonlawyers are allowed to assist the unauthorized
> >represent themselves, nor for a lawyer (or a nonlawyer) to assist them
> >to do so.
>
> aware of professional rules that prohibit lawyers from assisting
> assisting others in UPL? =A0Why would there need to be such a law? =A0If
> the non-lawyer is doing something that constitutes the practice of
> law, then he's already prohibited from doing that.
>
> Without knowing all the laws and rules in the different states, if a
> assistance constitutes the practice of law. =A0If it does, it would
> arguably be prohibited.
"Legal education" is everyone's right. "Legal advice" or "legal
assistance" that goes beyond "legal education", i.e., advice or
assistance with regard to a particular fact situation, is "practicing
law" ... do so at your peril ... no matter what anyone on this board
cavalierly says to the contrary. If we had more "legal education" in
this nation, we wouldn't have so many people being destroyed by
crooked lawyers. Promote Public Legal Education ... but be very
careful "helping" a pro-se litigant, unless you are licensed in that
state to practice law. Teach due process, if you know it. And, please,
if you don't KNOW what you're talking about, please don't lead others
into deeper trouble by advising them in matters about which you do not
have a professional level of knowledge and experience. It just isn't
fair to do so. The legal profession itself is bad enough at
representing people when the lawyer doesn't have a clue. Pro-se people
need to stand together and EDUCATE each other as much and as quickly
as possible. I believe Public Legal Education is a moral imperative,
without which our nation will continue to fall deeper into the corrupt
hands of the despotic oligarchy that already holds too much sway over
our children's destiny. Like Cosby, Stills, and Nash once sung, "Teach
your children well," and while you're doing so, teach them the rules
of civil procedure and the rules of evidence and how to use them to
control corrupt judges and overcome crooked lawyers ... but please
know what you're talking about when you hold yourself out as an
expert.
=2E.. Hope this helps somewhat.
=2E.. Jurisdictionary
=2E.. Jurisdictionary
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 15 Aug 2008 07:57:42 -0400, se...@panix.com (Seth) wrote:
>>In article <hg88a4du3qp9ctv6s...@4ax.com>,
>>Cy Pres <c.p...@yahoo.com> wrote:
>
>>> People are allowed to practice law in
>>>the context of pro se representation of themselves. Assisting them to
>>>do so is not a violation of the law, as you are not assisting them in
>>>doing anything which they were not entitled to do.
>
>>The assistance itself can be illegal.
>
>If the assistance is not illegal, it does not become assisting UPL
>simply because one is assisting a pro se litigant.
Right. But the assistance itself is what can be UPL.
> There is no law against providing otherwise lawful assistance to
>someone to assist them to do what they're entitled to do on their
>own.
However, there are things someone is allowed to do for himself as a
pro se that it would be UPL for a non-lawyer to do for him (or assist
him with).
>I am discussing two different things. UPL itself, and ASSISTING UPL.
I'm not aware that there's any such thing as the latter.
>Lawyers are prohibited additionally, by professional conduct rules,
>from both conducts, separate from any criminal or civil prohibitions.
In general, lawyers are _authorized_ to practice law (that's what
being a lawyer means).
>>because they're lawyers, hence _authorized_ to practice law.
>
>Neither lawyers NOR nonlawyers are allowed to assist the unauthorized
>practice of law.
The former is a rather far-fetched scenario. I suppose it's possible
(e.g. I want to file some legal paperwork for someone else, and get a
lawyer to advise _me_ and not him).
> It is not, however, UPL for pro se litigants to represent
>themselves, nor for a lawyer (or a nonlawyer) to assist them to do
>so.
It can most definitely be UPL for a non-lawyer to assist a pro se
litigant.
>>>Some examples of people who assist pro se litigants without violating
>>>the law are the authors and publishers of "legal self-help" books,
>>But note that an author isn't providing specific fact-based advice, so
>>the First Amendment triumphs.
>
>Thus, they've generally won these cases, and it is fairly well
>established in most jurisdictions that these practices do not
>constitute either UPL or assisting UPL.
So that situation isn't relevant.
Other people who have assisted pro se litigants directly, basing their
advice on the facts of the case, _have_ been charged with (and
convicted of) UPL.
>>>I'm pretty sure, however, that drafting pleadings and submitting them
>>>in the name of someone else is going to amount to unauthorized
>>>practice of law.
>
>>Drafting them for the other person to submit is also UPL.
>
>I think this would be situation dependent. For instance, it would
>clearly not be illegal for the other person to file them in the public
>record, whereupon the other pro se then basically copied the filing,
>substituting their own name or facts. I fail to see anything
>substantively different in handing them a copy before filing it.
Drafting a document _for_ another person would be UPL. I can file
something for myself, and let someone else copy it. I can't write a
filing _for_ someone else, based on the facts of his case (when I'm
not involved).
>Therefore, I don't think the line is particularly clear in this case,
>but I'm pretty sure that signing any paper on behalf of another party
>crosses it, so the proposed scheme of co-signing each other's pleading
>probably constitutes UPL by both parties.
I would think filing identical pleadings is allowed, so both of them
signing a single copy should also be.
Seth
Cy Pres
>>I am discussing two different things. UPL itself, and ASSISTING UPL.
>I'm not aware that there's any such thing as the latter.
See MRPC 5.5(a).