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 entrepreneurs developing scalable access to justice solutions.
What is the Unauthorized Practice of Law?
There is no precise definition of what constitutes the unauthorized practice of law.
Broadly speaking, UPL 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 licensed attorney can be subject to sanctions (and in some states jail time) for engaging in UPL.
So what is the practice of law?
Even the American Bar Association hasn’t been able to agree on how to define it. The association attempted to do so in 2002, releasing a model definition and a list of activities that would constitute the practice of law.
This definition was not ultimately incorporated into the Model Rules of Professional Conduct. But there are themes here that one finds across state definitions of UPL.
The most obvious and uncontroversial: appearing before a court or other tribunal in a representative capacity is the practice of law.
Drafting documents and providing legal advice are also prominent activities included in state definitions of the practice of law.
- Preparing & Drafting Documents: What constitutes the preparation and drafting of documents is not always straightforward. Most states recognize a scrivener exception under which an otherwise unlicensed provider can assist in the preparation of legal documents so long as they are only filling in blanks using the language provided by the consumer. Of course, the line between serving as a scrivener and providing legal advice in the preparation of documents is not always clear and the distinction is becoming blurrier in the context of software-assisted document preparation.
- Providing Legal Advice: What constitutes the provision of legal advice is similarly unclear at times. The crux of this activity involves the exercise of professional judgment in applying legal doctrine to a client’s specific situation. States draw a line between legal advice and legal information. Providing legal information is not the practice of law, although navigating this line can be challenging.
The bottom line is that decisions on what constitute UPL are more often than not made on a case-by-case basis.
Identifying the UPL Landscape in Your State
Where to Look
UPL rules vary from state to state. And to make matters more complicated, the landscape of a state’s UPL rules might be scattered across the following sources (and potentially others):
- Rules of Professional Conduct
- Court Rules
- State Statutes
- Ethics Opinions (formal & informal)
Finally, case law is where one can find much of the nuances of what constitutes the practice of law and the unauthorized practice of law. While some states consult the UPL decisions of other courts, it is important to review your state’s jurisprudence on these issues.
ABA Resources to Help
The American Bar Association Center for Professional Responsibility maintains some resources that may be of use to entrepreneurs in the access to justice space.
The 2021 Database of UPL Rules and Enforcement Authority by Jurisdiction (the last year listed as of January 2024) provides summary information on state UPL rules.
The 2022 Survey on the Unauthorized Practice of Law Enforcement compiles survey information from surveys of participating states (AK, AR, AZ, CA, CO, DE, FL, IA, ID, IL, KA, KY, LA, MI, MN, NE, NC, NM, OH, OR, UT, VT, WA, WI). Although not all participating states respond to the full survey, the report contains state-specific information on:
- The definition of the practice of law
- The location of the sources of UPL provisions
- The location of formal or informal advisory opinions or binding decisions regarding specific activities that constitute UPL
- The UPL enforcement authority
- The level of UPL enforcement activity
- The budgetary allocation for UPL enforcement
- The modifications enacted in response to NC State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015)
- The most common sources of UPL complaints
- The status of non-lawyer practice
- The status of out-of-state lawyer practice
The ABA Center for Professional Responsibility also maintains a directory of state UPL committee contacts (last available Nov. 2022).