Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
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.