Premature (mis)representation?  How to avoid false perceptions.

Applicants can run into trouble by inaccurately holding themselves out as a licensed attorney.

By MELISSA M. OAKES

Winter 2016

You have made it... almost. 

Just the bar exam to pass and then you will finally be a licensed attorney, perhaps with a position as an associate at the firm where you are currently employed.   When you completed your Colorado bar application you even listed yourself as an "associate," "staff attorney," or “counsel.”  However, in doing so, you likely invited a request for a sworn affidavit by the Attorney Admissions Division of the Office of Attorney Regulation Counsel.  Now what?  And what's the big deal?!?

 

The Big Deal

The practice of law by unqualified persons is a “big deal” to the Colorado Supreme Court.  The unauthorized practice of law (“UPL”) includes, but is not limited to, an unlicensed person’s actions as a representative in protecting, enforcing or defending the legal rights and duties of another and/or counseling, advising and assisting that person in connection with legal rights and duties. [1]   

Most people understand that providing legal advice to another person constitutes the practice of law.  However, this also includes the selection and drafting of legal documents for use by another person, interpretation of the law for another, representation of another person in any legal transaction or matter, and preparation of another person’s case for trial. 

That said, many activities which would normally be considered as the unauthorized practice of law are not UPL when done under the direction and supervision of a licensed Colorado attorney.  Most law students may work as a law clerk or even a “summer associate” for a law firm under such direction and supervision. 

Additionally, many law students are authorized to practice law in limited circumstances under the Law Student Practice Rule.  See C.R.C.P. 205.7(2)(b).  Such students are authorized to appear in court as if licensed in Colorado.  Additionally, law student externs may appear and participate in certain civil and criminal proceedings.  However, eligibility to practice law under the Law Student Practice Rule terminates after the first swearing-in ceremony following a passing score on the immediately preceding bar examination.

 

How You Get In UPL Trouble

The way most applicants get into an UPL predicament is not in the provision of legal services, but rather by inaccurately holding themselves out as licensed lawyers.  Listing yourself as an “associate” is, in fact, holding yourself out as a licensed “associate” attorney.  Sometimes it is the law firm that is doing the holding out, possibly without the applicant’s knowledge. 

Colorado Rule of Professional Conduct 7.5(b) [2] requires a law firm to indicate the jurisdictional limitations of those lawyers identified on its letterhead.  It is acceptable to be listed as an “associate” by a law firm on their website, letterhead, etc., provided the disclosures necessitated by C.R.C.P. 7.5(b) accompany the title. 

A law student or an applicant not licensed to practice law in another state should never appear on a law firm’s letterhead, website, etc.  An applicant who does have a license to practice law in another jurisdiction must comply with the requirements of 7.5(b) if listed on any law firm materials.  

Applicants should also be mindful that even though their title is that of “associate” they cannot be identified or billed as such to a client.  Often times an individual may assume the person with whom they are speaking from the law office is an attorney, when in fact that person may be a legal intern or law clerk.  It is the supervising attorney’s responsibility, as well as the student’s, to ensure that the non-lawyer properly identifies themselves to clients, opposing counsel and third parties.  We strongly encourage law students who are not authorized under the Law Student Practice Rule to not meet with clients unless they are doing so as an observer to the meeting between the lawyer and the client.

The other way in which applicants get into UPL trouble is by acting in a representative capacity and counseling another regarding their legal rights and duties not otherwise authorized by Rule or Statute.  Students need to be aware of the limitations as to what they can and cannot do.  Preparation of documents and materials ultimately reviewed and executed by a licensed Colorado attorney would be appropriate.  However, if a student undertakes to answer legal questions or render other legal services, even if prepared or performed under the supervision of a Colorado attorney, the client may believe the student themselves managed the work or supplied the materials.  A student must be mindful of the difference between activities that are preparatory in nature and those which may cross the line into representation.    

This is not meant to address those individuals who appear in any of the 18 Accredited Representative recognized organizations, including legal representation before the Department of Veteran Affairs, Department of Homeland Security, etc., or as an authorized license broker (i.e. Real Estate Broker).  

 

What We Do

If Attorney Admissions believes that an applicant may be engaging in the unauthorized practice of law more investigation is necessary.  Our investigation will include a review of the law firm’s website and social media postings (i.e. Linked In, etc.) made by the applicant. 

For example, if the law firm lists the applicant as an “Associate” without the disclosure that the applicant is not currently licensed to practice law in Colorado, it may violate 7.5(b).  

We then typically ask the applicant to provide the following information in a sworn affidavit:

Provide a sworn affidavit detailing all circumstances and events leading to and surrounding your current employment with [LAW FIRM] as an “Associate” in [STATE]. Include a detailed narrative of your exact duties and responsibilities, including whether you are advising any client on issues of Colorado law, under what authority you practiced in Colorado without being admitted to do so, and why you believe this activity should not be viewed as the unauthorized practice of law.  Further, please explain whether you believe you are making the appropriate disclosures as required by Colorado Rule of Professional Conduct 7.5(b), including information contained on your letterhead, business cards, email signature, etc.

We may also ask the applicant to produce copies of letterhead, business cards, email signature blocks, etc. for review and compliance with the Rules of Professional Conduct. 

This review can also lead to an inquiry of the law firm and/or the supervising attorney.  Therefore it is important that law firms and lawyers supervising students take seriously their responsibility to supervise these non-lawyers and also ensure that they are making the proper disclosures required by 7.5(b) to the public and to the clients.

In cases where Attorney Admissions is concerned about potential harm to a client or the profession, the matter will be referred to the Unauthorized Practice of Law Division of the Office of Attorney Regulation Counsel for further investigation. [3]

 

What Can I Do?

First, understand that you swore to the statements and representations in your application for admission.  Therefore, you should be careful and thorough in all of your explanations, including your employment.

Second, review your online information and profile, including how the law firm characterizes your position.  If you are listed as an “associate,” that designation must include the disclosures required by 7.5(b).  This also holds true for any other medium where your name and title appear.  It may be an awkward but necessary conversation with a supervising attorney or managing partner.  One way to start the discussion may be to bring a copy of this article along.  Remember, as the applicant, you are the one who is ultimately accountable for the title, especially if you are similarly listing yourself on a website over which you do have control, like your Linked In profile.

Third, don’t refer to yourself as a “lawyer” or append “Esq.” to your name until you have successfully passed the bar exam.  You can generally indicate that you hold a J.D. degree, but only if it is clear from the context that you are not attempting to hold yourself out as an attorney.  The use of J.D. is commonly interpreted to mean that the individual has earned that degree, not that they are holding themselves out as a licensed lawyer.  The concern is that the use of designations like Esq., “lawyer” or “attorney” may create a false perception that the person is providing legal services or acting in a capacity as a lawyer.

Finally, while I and the Attorney Admissions staff are available to help answer general questions, we cannot provide specific or legal advice.   If you receive a request for a sworn affidavit, or have detailed questions regarding character and fitness or the admissions process, seeking the advice of counsel experienced in these matters is something to consider.    

It is also good to remember that if a family member, friend, neighbor, etc. asks for your “legal advice” before you are licensed to practice, the right (and only) answer must be, “I’m sorry, I can’t help you right now.  I’ll let you know when I can.” 

For additional information regarding the Unauthorized Practice of Law in Colorado, please read “Understanding Unauthorized Practice of Law Issues” at our website.

Melissa M. Oakes is the Director of Character and Fitness with the Office of Attorney Admissions.

Alec Rothrock, Esq., and James Coyle, Regulation Counsel, contributed to this article.