I’m not a lawyer, I’m a trial broker. This article is my opinion, and not legal advice, based on my experience in California, and laws vary by state. If you ever need legal advice or a strategy to use, contact an attorney.
Even if you’re a lawyer, it can be scary to be accused by a District Attorney, State Attorney General, or US Attorney General (or their deputies) of an Unauthorized Practice of Law (UPL) complaint. . If you’re not a lawyer, this would definitely be scary. In California, the UPL is a felony, not a civil misdemeanor.
Practicing law without a license is a crime and, if caught, is often severely punished.
An obvious example of a UPL would be representing yourself as a lawyer when you are not. Some less obvious examples of UPL would be (if you are not a lawyer):
1) Represent another person in court or in a legal matter, except when working as a court-approved interpreter.
2) Work in any legal capacity for someone else.
3) Offer legal advice to anyone.
4) Being a “loan modification specialist” who “represents” the people.
5) Enforce a sentence in favor of someone. If you are not a lawyer or a collection agency, you must have a judgment before you can legally recover it. Proof of ownership is a court-endorsed and notarized judgment assignment.
The work that judgment enforcers do is somewhat similar to that of people who buy houses, fix them up, and then sell them. They are not real estate agents or brokers (unless they are licensed as such). Although they can sell their own houses (and must know real estate laws), they cannot sell houses for others.
There are some gray areas of the UPL, for example, in some situations, non-lawyer advocates can represent children and parents.
In most places in the US, UPL charges stem primarily from extreme or outrageous behavior. Here are some situations that are not generally considered UPL:
1) When, by mistake, a process server, bailiff, or court appoints you as the attorney of record.
2) If a judge or someone else mistakes you for a lawyer, EG, they call you a “counselor”.
3) Submit proposed orders or letters to the court.
4) Represent yourself in court.
Anyone can sue anyone for any reason, even no good reason. Judgment debtors have threatened or tried to sue judgment executors for enforcing a judgment on their property.
When the executor owns the judgment and has complied with all laws, he or his attorney can file a simple objection (a claim that there is no legal basis for the lawsuit), and the matter could be quickly dismissed.
Anyone enforcing the judgments must take the UPL into account. In some courts, local policies, organizations, or individuals, enforcement of judgments is considered to be UPL. When this happens, the correct actions to take include looking up the laws in your state, asking to speak to the judge or a supervisor, and hiring a lawyer to get their advice.
The wrong thing to do when this happens is to communicate “so-and-so enforces the judgments, why can’t I”?
I know of an executor, who was thrown out of court by the judge because he was not the original judgment creditor. The enforcer responded by submitting to the court the names, addresses, websites, and phone numbers of 50 other enforcers who work on his estate, asking the court “they do it, why can’t I?”
That was what could not be done on many levels; and it didn’t work any better than telling a police officer “everyone else was driving that fast.”
Only a district attorney, state attorney general, or US attorney general’s office can sue for UPL alone. In a civil litigation situation, UPL is nothing more than an “add-in.”
If you really do make a mistake and cause actual damages, someone could add UPL punitive damages under Civil Code 3294, or Business and Professions Code 17200, if there is already a cause of action against you, for negligence or breach of contract.
There may be some situations in which one can relieve UPL in a civil cause of action to recover damages. Two examples would be the Unfair Practices Act as defined in Business and Professions Code 17000, or for malice, fraud, and oppression, as causes of action with exemplary or punitive damages, as defined in CPC 3294.
When there is no case law that specifically addresses a particular issue, you do not want to be the cause of any new case law.
Most failover specialists will never have to worry about UPL, as long as they are careful in their business and don’t cross any lines in UPL.
Lawyers may not share fees with non-lawyers. Lawyers can only pay referral fees to other lawyers. A lawyer may work for a non-lawyer only if the lawyer’s services are not offered to the public. A non-lawyer cannot own or operate a law firm.
