Unauthorized Practice of Law
The unauthorized practice of law is when a person who is not a licensed attorney in Texas provides legal advice or representation. This may be unlawful, with the exception of actions such as providing legal documents with a clear disclaimer. Only licensed attorneys may practice law in Texas.
What is the unauthorized practice of law?
The unauthorized practice of law is the “practice of law” by a person—typically a nonlawyer—who has not been licensed or admitted to practice law in Texas.
What acts are considered the “practice of law”?
In Texas, the practice of law is defined as:
- 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.
- 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
This can include preparing a will, contract, or another instrument (legal document). Texas Government Code 81.101(a). The practice of law also includes all advice to clients, all actions taken for clients in matters connected with the law, and a course of conduct that encourages litigation and the prosecution of claims.
Courts can consider whether other actions fit under a “practice of law” definition. Judges will carefully determine the facts involved and the legal effect of actions taken to make their decision. Texas Government Code 81.101(b).
Section 83.001(a) of the Texas Government Code does not allow a person to “charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed of trust, mortgage, and transfer or release of lien. This law does not apply to licensed attorneys, real estate brokers or salesmen, and mineral property lease transactions.
What acts are not considered the “practice of law”?
Texas Government Code 81.101(c) says that 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 Texas Government Code Chapter 83, and does not affect the applicability or enforceability of that chapter.
Remember, the Texas Supreme Court has held that, along with statutory definitions above, the courts ultimately decide what is considered the “practice of law."
Who can practice law in Texas?
Only licensed attorneys in good standing with the State Bar of Texas and other persons with special permission from the Texas Supreme Court may practice law in Texas. Texas Government Code 81.102(a).
What happens if someone engages in the unauthorized practice of law?
It is a felony crime in Texas to falsely claim to be a lawyer. Unless they are a licensed attorney, Section 38.122 of the Texas Penal Code prohibits a person from holding out that they are a lawyer, intending to obtain an economic benefit.
Texas law generally prohibits a person who is not an attorney from representing a client in a personal injury or property damage matter and punishes a violation as a misdemeanor. Texas Penal Code 38.123.
My family member is incarcerated. Can I participate in a lawsuit on their behalf?
No. Only a lawyer can represent the incarcerated person. Additionally, the only person who can appear in court on behalf of an incarcerated individual is a lawyer.
It is always best to contact the legal aid organizations in the incarcerated person’s area or hire a private attorney to represent them in court. You can use our Legal Help Directory tool to search for a lawyer referral service or free legal aid program in their area.
Read more about Rights of Texas Inmates in Family Law Matters.
If I help a friend or family member fill out divorce forms, can I get in trouble?
You can help someone fill out their divorce forms as long as you directly insert what they tell you to write down. You cannot give legal advice or make suggestions. This is true even if you know what they are asking you to write down is wrong.
This may be necessary if someone is unable to read or write or if they have a physical disability that prevents them from filling out the forms themselves.
If you decide to help a friend or family member this way, you should not charge or economically benefit from assisting.
If someone needs help with HOW to fill out forms or WHAT to include, then they should talk to an attorney.
If you have doubts about helping, then say you cannot help. The best thing you can do is recommend to your friend or family member to seek legal advice from an experienced lawyer.
I know a paralegal. Can they give me legal advice?
No. Only attorneys can give legal advice.
Paralegals, legal assistants , and notary publics are all nonlawyers. They cannot prepare documents on your behalf. Paralegals and other legal staff in a law office may be able to assist with legal work, but it must be under the supervision of a licensed attorney. This means the attorney instructed them to do the work and the attorney is responsible for the final work product.
This can be confusing for any Texan with ties to Mexico. This is because in Mexico, a public notary or “notario público” is an attorney who can provide legal advice in that country. Remember, only a Texas-licensed lawyer can give legal advice in Texas.
Prepaid legal service plans or legal document services should not be used as a substitute for the advice of an attorney. Usually, these service providers cannot provide legal advice and can only provide self-help services at your specific direction.
What happens if a nonlawyer gives me legal advice?
If a nonlawyer engaged in the unauthorized practice of law, you may have received bad advice and information. This may result in mistakes in your paperwork, your case being denied, the judge not granting your divorce, or your case becoming a mess.
The nonlawyer who participated in the unauthorized practice of law could face criminal charges.
Where can I report the unauthorized practice of law in Texas?
The Unauthorized Practice of Law Committee is in charge of preventing, investigating, and prosecuting the unauthorized practice of law in Texas. The committee is appointed by the Texas Supreme Court.
To report the unauthorized practice of law, visit the Unauthorized Practice of Law Committee's online complaint form.
Any interested attorney, group of attorneys or any local bar association also may file a lawsuit to stop the unauthorized practice of law.
Can a nonlawyer represent me before a federal agency?
Some federal administrative agencies do allow nonlawyers to represent an individual. For example, Social Security Administration will allow non-attorney representatives of claimants.
You must check with the specific agency to determine whether nonlawyer practice is authorized.
Do you have to be a lawyer to represent someone in justice court?
Justice courts, which are the courts where evictions and small claims cases are heard, can be an exception to the rule. Someone who is not an attorney can act on another individual's behalf in an eviction case. Property managers or other authorized agents can represent a company in eviction cases. And a corporation can be represented by its non-attorney employees, owners, officers, or partners.
What Texas court opinions discuss unauthorized practice of law?
Read these Texas cases that discuss the practice of law:
- Unauthorized Practice Committee v. Cortez: The courts decide whether an activity is the practice of law; selecting and preparing immigration forms constitutes the practice of law.
- Crain v. Unauthorized Practice of Law Committee: Preparing and filing mechanic's lien affidavits constitutes the practice of law.
- Green v. Unauthorized Practice of Law Committee: Preparing and sending demand letters on personal injury and property damage claims and negotiating and settling the claims with insurance companies constitutes the practice of law.
- Fadia v. Unauthorized Practice of Law Committee: Selling will forms and manuals constitutes the practice of law.
- Brown v. Unauthorized Practice of Law Committee: Contracting to represent persons with regard to personal injury and property damage claims constitutes the practice of law.
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