Most attorneys and judges have stories about a “courtroom surprise” — an issue that came up unexpectedly or an argument that was not anticipated. Attorneys are trained to think on their feet and handle these surprises when they arise. Judges are adept at handling unanticipated complications.
Unfortunately, one of these surprises could involve the unauthorized practice of law (UPL) by a non-attorney. This could include the drafting of pleadings by an individual who is not licensed to practice law or non-lawyers attempting to join hearings and present arguments on behalf of parties. Attorneys and judges are often at a loss about how to handle UPL in these situations. Luckily, there are ethics opinions, rules, and court decisions which provide a roadmap for just these occasions.
Michigan’s UPL statute prohibits unlicensed individuals from practicing law.1 However, the UPL statute does not define the practice of law and the Michigan courts have held that questions involving the practice of law must be decided by the courts on a case-by-case basis.2 “[A] person engages in the practice of law when he counsels or assists another in matters that require the use of legal discretion and profound legal knowledge.”3
If an attorney suspects that UPL is occurring, the attorney has an ethical obligation to report the suspected UPL conduct.4 If the suspected conduct is occurring in the courtroom or involves pleadings filed in court or an administrative matter, the attorney should bring the suspected UPL activity to the attention of the judge and report it to the State Bar of Michigan UPL Department. Circumstances which may trigger an attorney’s reporting obligation can include receiving pleadings which designate a non-attorney as a party representative, being contacted by a non-attorney attempting to negotiate on behalf of a party, or even becoming aware that a non-attorney has provided legal advice to a party.
If suspected UPL occurs in the courtroom, Ethics Opinion JI-26 provides a clear road map for judges. First, a judge should require that court personnel regularly check pleadings for signature and licensure to ensure that the person signing is a member of the State Bar. If the person signing the pleading cannot be identified as a member of the Bar, the pleading should be rejected unless the party is appearing pro se.5
If UPL concerns are raised by an attorney during a hearing or a judge becomes aware during the course of a proceeding that a representative of a party is not licensed to practice law, the judge must stop the proceeding and should place as much information as possible on the record and forward a transcript to the State Bar of Michigan UPL Department. This should include the names and addresses of all persons having relevant information about the incident. Copies of all relevant pleadings, documents, and correspondence relating to the matters should also be provided.6
In addition to stopping the proceedings and reporting the UPL to the State Bar, the judge also has other options to address UPL. In Mitan v. Farmington Square Condominium Association,7 the Michigan Court of Appeals cited approvingly the language of the Massachusetts Supreme Court:
[W]here a court learns that a person is engaged in the unauthorized practice of law, the court is obligated to take corrective action, regardless of whether the adverse party requests such action. A court has no discretion to tolerate the unauthorized practice of law, and may not allow a person to engage in the unauthorized practice of law simply because the adverse party does not object. A judge does have the discretion, however, to determine the appropriate remedy.8
In the Mitan case, which involved a non-attorney personal representative attempting to litigate claims on behalf of an estate, the Court of Appeals vacated a judgment and remanded the case with instructions to provide the estate a period of time, set at the court’s discretion, to file a response to a counterclaim. In addition, the court was to direct the estate’s personal representative to employ the services of a licensed attorney in defense of the counterclaim. If the personal representative attempted to file pleadings on behalf of the estate or proceed without counsel, the trial court was directed to reject any pleadings or motions so filed.9
As demonstrated by Mitan, the court has discretion with regard to addressing UPL. Some remedies that may be employed can include entering a contempt order to show cause and, if it is determined that UPL has occurred, sanctioning the individual appropriately.10 A judge may dismiss the action or strike the pleadings.11 If it is believed that a licensed attorney has assisted or permitted UPL to occur, the judge may refer the attorney to the appropriate disciplinary agency.12
The purpose of the UPL statute is to protect the public. Unlicensed individuals who attempt to provide legal services can cause significant harm and impair legal rights. Working together, lawyers and judges can help prevent and curtail UPL. For more information regarding UPL or to file a UPL complaint, visit michbar.org/professional/upl.