TBA Law Blog

Posted by: Cynthia Wyrick on Apr 1, 2014

Journal Issue Date: Apr 2014

Journal Name: April 2014 - Vol. 50, No. 4

While it has not been officially declared as one by Congress, and may not be the headline in your local newspaper, you should know that our profession is at war. Before you run for cover or head to your local recruiting office, I should mention that this war is being waged against a different type of “enemy” — one that does not want to engage us in battle directly but instead tries to elude detection.

While we as lawyers are the ones fighting the battle, protecting the legal profession is only our secondary goal. We are fighting this battle primarily to protect the public. The war of which I speak is being fought against those engaging in the unauthorized practice of law (UPL). Unfortunately, it is one that I am not sure we are winning at present.

You need only open your email inbox, turn on the television, or use the Internet to realize that we are facing a new breed of UPL issues. Everywhere you look there are advertisements for forms to allow consumers to do such things as start a business, prepare a will or get a divorce, to name a few. While the selling of a legal form in and of itself has been determined not to constitute the practice of law, many form providers are no longer stopping there. They are working with consumers to complete or customize these forms. It is there that the fine line is easily crossed, and many of these advertisers are indeed engaging in the practice of law by providing services that call for the “professional judgment of a lawyer.” While this unlawful conduct certainly has the potential to be harmful to lawyers’ practices across our state, the ones who suffer the most financially are innocent consumers who believe that they have been provided with legal advice and guidance at a bargain rate, when they have been provided nothing more than a cookie cut form that is just as likely to cause harm as to assist them with their legal matter. After all, how many of us have met with members of our communities who used a form kit to prepare their “will” only to learn from us that the document is invalid because it was not properly completed and/or executed.

While we are waging war against those engaging in UPL on this new front, we also continue to face more traditional UPL issues as well. Some notary publics continue to prey on the Spanish-speaking members of our communities, holding themselves out as “notarios,” a term which in some Spanish-speaking countries is used to describe a person who is especially well-trained int the law. We also continue to see some paralegals set up shop and offer their services as if they were licensed attorneys.

In order to wage war more effectively against those engaging in UPL, we must know what to do when we observe or learn about UPL issues. Tenn. Code Ann. § 23-3-101, et. seq. defines the unauthorized practice of law and provides guidance as to how the issue may be redressed. Our courts have also weighed in and made clear that when determining whether particular conduct constitutes the practice of law, the inquiry is very fact-specific. So, how should this knowledge inform the action that we take when we learn of activity that may constitute UPL?

First, you should gather all of the information that you possibly can about the situation. Try to obtain the following:

  1. the name of, and contact information for, the person or business at issue;
  2. the name of the person who was the specific contact for the consumer affected;
  3. where the consumer heard about the services offered;
  4. the questions the consumer was asked by the document preparer;
  5. whether the document preparer was the one who determined what form the consumer should purchase;
  6. whether the preparer customized the form(s) purchased in any way; and
  7. whether the preparer made any statements about their legal knowledge or ability or made any statements that led the consumer to believe that they were providing legal services.

Once you have gathered this information the question becomes where do we turn to try to stop the UPL activity and assist the consumer who has been victimized?

Engaging in UPL is actually a crime, so your first call might be to your local District Attorney’s Office. On the civil front, any judge who observes a UPL issue or has one brought to his or her attention can immediately enjoin the party who is engaging in UPL. The impacted consumer may also bring an action again the offender for treble damages. In those actions, courts have the authority to grant an award of attorney fees and investigation and suit expenses, among other relief. This is in addition to the treble damages award which is available. I must confess that I was not aware of the full range of remedies available to injured consumers.

You may also report these issues to the Tennessee Attorney General’s Office. The Attorney General’s Office has the authority to undertake civil prosecutions of UPL matters, and takes this responsibility very seriously. This route might be particularly helpful when you have some facts but not enough to pursue a claim on behalf of an injured party. While the Attorney General’s Office cannot comment on pending investigations, you never know when the information that you provide might be the key to allowing them to further an investigation already underway to the benefit of all concerned.

You will find an online complaint form and a wealth of other information about the issue of UPL at www.tn.gov/attorneygeneral/upl/upl.html. If it is your clients who has been injured by UPL, ask them for permission to provide their contact information to the Attorney General and prepare them for the fact that someone from the Attorney General’s Office may call to obtain further details relating to the complaint filed.

Given the explosion of UPL issues that we face, we can no longer afford to sit back and hope that our fellow attorneys or the Attorney General’s Office will address these issues for us and without our input and assistance.

Each of us has a responsibility to our profession, and an even greater responsibility to the public, to do all that we can to help win the war against the unauthorized practice of law. When we identify a UPL issue, we simply must take action. Let us not forget that “Together We Make a Difference!”

Cindy Wyrick TBA President CINDY WYRICK practices law with Ogle, Gass & Richardson PC in Sevierville.