A Rule Without A Clear Definition
The prohibition on the unauthorized practice of law (UPL) is an important piece of the US regulatory structure governing the delivery of legal services. It is a critical consideration for direct-to-consumer legal technology startups.
Broadly speaking, the unauthorized practice of law is considered to include the practice of law by people who aren’t authorized or relatedly who are holding themselves out as authorized to practice law when they are actually not. Under the regulatory system in place in almost every state, anyone practicing law who is not a lawyer can be subject to sanctions (and in some states jail time) for engaging in the unauthorized practice of law.
The definition of UPL, then, is circular; it depends on how we define the practice of law. But this definition is not entirely clear, either. One thing is fairly established: people and entities that are not lawyers or law firms can provide legal information.
Additionally, understanding more about UPL enforcement actions can shed light into some of the dynamics involved in defining the unauthorized practice of law.
Identifying the UPL Landscape in Your State
UPL rules vary from state to state, and within each state, relevant provisions are scattered across statutes, rules of professional conduct, court rules, and case law. The American Bar Association Center for Professional Responsibility maintains some resources that may be of use to legal technology companies in the access to justice space.
The 2021 Database of UPL Rules and Enforcement Authority by Jurisdiction (current as of August 2020) provides summary information on state UPL rules.
The 2018 Survey of Unlicensed Practice of Law Enforcement is a downloadable database compiled from surveys of 18 states (AR, CA, CO, DE, FL, ID, IL, KY, LA, MO, MT, NC, OH, OR, TN, TX, WA, WV). It can be accessed through a resource page maintained by the Standing Committee on Public Protection in the Provision of Legal Services (under heading Unauthorized Practice of Law Committees). The information contained in a number of the Excel tabs may helpful:
- The “Defn & Enforcement Authority” tab contains state sources of UPL authority, in some instances including case law.
- The “UPL Complaints” tab contains information on state enforcement practices, including descriptions of the general nature of UPL complaints submitted in surveyed jurisdictions.
Finally, the ABA Center for Professional Responsibility also maintains a directory of state UPL committee contacts.