1. What the Unauthorized Practice of Law is
Deborah K Hartley Northern Region Chair Texas Unauthorized Practice of Law Committee

2. what am I going to learn today?
Understand UPL
Recognize UPL
Avoid UPL

3. A little history

4. The history of UPLC
1952
Texas Supreme Court establishes the UPLC as a permanent entity with investigative and prosecutorial powers.
1932
Texas Bar association creates the “Committee on the Lay and Corporate Encroachment of the Practice of Law.”
1900
1930
1920
1935
1940
1940
1960
1980
1960
1980
2000
The first Committee in Texas was created in 1932 by the Texas Bar Association (predecessor to the State Bar of Texas) and was called the “Committee on the Lay and Corporate Encroachment of the Practice of Law.” The first job of the Committee was to draft a statute defining the practice of law and prohibiting UPL. The statute was drafted in 1933 and the Committee was renamed the “Committee on Unlawful Practice of Law.”
The modern version of the Committee was created following the creation of the State Bar of Texas in The Texas Supreme Court initially adopted rules that authorized the Committee to assist local grievance committees to investigate UPL, but did not authorize the Committee to prosecute lawsuits. The Committee’s role was largely advisory. The investigation and prosecution of UPL was left to the local grievance committees.
In 1952, the Texas Supreme Court adopted rules establishing the Committee as a permanent entity and giving the Committee investigative and prosecutorial powers, as well as the duty to inform the State Bar and others about UPL. From 1952 to 1979, the Committee members were appointed by the State Bar.
In 1979, the UPL statute was amended to require that members of the Committee be appointed by the Texas Supreme Court.
1939
State Bar of Texas is created. UPL committee is largely advisory.
1933
The Committee was renamed the “Committee on Unlawful Practice of Law.”
1979
UPL statute was amended to require that members of the Committee be appointed by the Texas Supreme Court.

5. Texas Supreme Court
By statute the Court has administrative control over the State Bar of Texas. Tex. Gov't Code § The Court is also the sole authority for licensing attorneys in Texas and appoints the members of the Board of Law Examiners, which administers the Texas bar examination. Tex. Gov't Code §§ 82.00,

6. The UPL Committee
The Committee is comprised of nine persons appointed by the Texas Supreme Court.
Six members are lawyers and three members are non-lawyers. Members serve in staggered three- year terms.

7. The UPL Committee
The chairman of the Committee is appointed annually. The chairman of the Committee is authorized to appoint up to three ex oficio non-voting members of the Committee from past chairmen of the Committee.
The chairman of the Committee is responsible for the administration of the Committee, including the appointment of regional chairmen, Subcommittee chairmen and all Subcommittee members.

8. The UPL Committee
All appointees must sign a written oath of office. The Committee is considered a judicial agency. 

9. The UPLC has 5 regions throughout Texas
UPLC Regions
Northern
Central
Western
Eastern
Southern
The UPLC has 5 regions throughout Texas

10. UPLC Subcommittees
The Committee has created 38 Subcommittees to which the investigation and litigation of UPL cases is largely delegated.

11. Why does the UPLC exist?
The practice of law is a privilege, not a right.
There is no constitutional guarantee that non-attorneys may practice law.
The Texas Supreme Court has the inherent power to regulate the practice of law.
The Court’s inherent power is derived from the Texas Constitution.

12. What is the Practice of Law Sec. 81
What is the Practice of Law Sec of the government code: Definition
(a) In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. (b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
Sec : Definition
(a) In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

13. What is the Practice of Law Sec. 81
What is the Practice of Law Sec of the government code: Definition “The safe harbor”
(c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.
Sec : Definition
(a) In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
(c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

14. The “cocktail party” rule
Falsely representing yourself to be a lawyer is not always UPL.
It will implicate UPL rules if the false representation is used to get people to rely on the person for legal services.
Yes I am a Lawyer

15. More rules
Section of the State Bar Act prohibits most non-lawyers from charging or receiving a fee for preparing real estate instruments.

16. More rules
Section of the Penal Code prohibits a person, with an intent to obtain an economic benefit, from falsely holding himself out as a lawyer.

17. More rules
Section of the Penal Code prohibits a person, with an intent to obtain an economic benefit, from (a) contracting with persons to represent them in regard to causes of action for personal injuries or property damages, (b) advising persons of their rights and advisability of making claims for personal injuries or property damages, or (c) advising persons as to whether to accept a settlement of claims for personal injuries or property damage.

18. More rules
DR 5-05 of the Texas Disciplinary Rules of Professional Conduct prohibits a lawyer from aiding a non- lawyer in UPL and from committing UPL in another jurisdiction.

19. More rules
DR 5-04 prohibits fee splitting between a lawyer and a non- lawyer and prohibits a lawyer from forming a partnership with a non-lawyer to practice law.

20. More rules
DR 8-04(a)(11) prohibits a lawyer who is suspended by the State Bar of Texas from practicing law.

21. Who can practice law in Texas?

22. The State Bar Act Section 81.102 of the Government Code:
(a) Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar.
(b) The Supreme Court may promulgate rules prescribing the procedure for limited practice of law by:
(1) attorneys licensed in another jurisdiction;
(2) bona fide law students; and
(3) unlicensed graduate students who are attending or have attended a law school approved by the supreme court.

23. Exceptions to the Rule Pro Se litigants Pro Hac Vice Federal practice
Eviction cases and appeals
Corporations may be represented by non-attorneys in Justice Court
Public insurance adjusters may negotiate but not practice law.
Pro Hac Vice
In-house corporate counsel
Federal practice
Jailhouse lawyers
Administrative agencies

24. Need Alone is Not an Exception
The argument has been made by UPL respondents and defendants that they are performing a valuable service economically and filling a need not met by attorneys. While this argument has superficial appeal, it has been rejected by courts.
Need Alone is Not an Exception
No exception for need

25. The Real World of UPLC The courts decide—not the UPLC
The UPLC cannot give advisory opinions
Includes services in court and out of court
Courts have recognized “implied legal advice”, including negotiation of settlements, BUT licensed public insurance adjusters may negotiate settlements but may not practice law
Does not require compensation
Note public insurance adjusters are limited to loss or damage under a policy of insurance covering real or personal property

26. No Constitutional Violation
1st Amendment
14th Amendment
Overbreadth and vagueness

27. But. . .Federal limitations
NAACP can advise that rights have been violated and recommend attorneys for litigation under 1st and 14th amendments
An attorney licensed in another state may maintain an exclusive federal practice in a state where she is not licensed where applicable federal law permits, such as patent law or bankruptcy
Unions may advised members about their rights and recommend attorneys under 1st and 14th Amendments
But. . .Federal limitations
Texas Property Code
. Sec : Nonlawyer Representation
(a) In eviction suits in justice court for nonpayment of rent or holding over beyond a rental term, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. In any eviction suit in justice court, an authorized agent requesting or obtaining a default judgment need not be an attorney.
(b) In an appeal of an eviction suit for nonpayment of rent in a county or district court, an owner of a multifamily residential property may be represented by the owner's authorized agent, who need not be an attorney, or, if the owner is a corporation or other entity, by an employee, owner, officer, or partner of the entity, who need not be an attorney
Texas Government Code
Sec : Jurisdiction
(d) A corporation need not be represented by an attorney in justice court.

28. A complaint Driven process
Txuplc.org Complaint received
Subcommittee Complaint assigned
Respondent Notice given
Subcommittee Receives response
A complaint Driven process

29. Subcommittee options
Insufficient evidence of UPL; close investigation 1
Obtain Cease & Desist Agreement from Respondent; close investigation 2
Invite or subpoena Respondent to investigative hearing 3

30. Subcommittee’s next steps
Deliberate results of investigative hearing
Conduct vote
Close investigation; OR seek suit authority from state UPLC

31. Request for suit authority
Subcommittee presents results of investigation to state UPLC at quarterly meeting
State UPLC deliberates
State UPLC votes to grant or deny suit authority

32. Only relief sought is injunction against continuation of UPL
Subcommittee litigator sues Respondent in district court on behalf of UPLC
Only relief sought is injunction against continuation of UPL
Violations of UPL injunction result in request for further suit authority to enforce injunction by contempt
UPLC litigation

33. Common subcommittee issues
Paralegals
Immigration
“Constitutional” advisors
Forms and software sellers
Disbarred lawyers
Lawyers licensed in other jurisdictions
Overanxious law students
“One-time” offenders
Just completing forms
Common subcommittee issues

34. Let us know………..