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Is this considered UPL?

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tigger22472

Senior Member
What is the name of your state?Indiana

I am currently attending school to be a paralegal. I didn't begin courses until Oct. 4, 2004. Prior to that any 'legal' knowledge I had came mostly from here, enlightenment from friends and my own research on the internet.

Prior to starting school I drew up a motion and parenting plan for my husband to file in court to modify his divorce decree. Yes, I did most of the research for it. I would have to say 95% of the advice I've given him as far as how to present himself in court and what he needs to say is based on my 'knowledge' or common sense from before starting school. He did in fact have the parenting plan and motion looked over by a local attorney who told us that it looked good.

Court is on Nov. 8th. At what point, if any does UPL come into play and should we be concerned at all that the defendants attorney could use this?
 


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I AM ALWAYS LIABLE

Senior Member
tigger22472 said:
What is the name of your state?Indiana

I am currently attending school to be a paralegal. I didn't begin courses until Oct. 4, 2004. Prior to that any 'legal' knowledge I had came mostly from here, enlightenment from friends and my own research on the internet.

Prior to starting school I drew up a motion and parenting plan for my husband to file in court to modify his divorce decree. Yes, I did most of the research for it. I would have to say 95% of the advice I've given him as far as how to present himself in court and what he needs to say is based on my 'knowledge' or common sense from before starting school. He did in fact have the parenting plan and motion looked over by a local attorney who told us that it looked good.

Court is on Nov. 8th. At what point, if any does UPL come into play and should we be concerned at all that the defendants attorney could use this?
Click to expand...

My response:

First, you cannot "unlawfully practice law" when it comes to advising a spouse. "Advising" is what spouses do, in every area of life - - not just legal matters. This is what spouses do for each other, legally, because what one spouse does usually affects the other.

Second, any papers that YOU may have researched, and that YOU may have written, is NOT "UPL" because you're merely acting as a scrivener for your husband. It's your husband's signature that's going on the pleadings, and he's the one appearing for the hearing.

So, no. What you're doing for him isn't the UPL.

IAAL
 
T

tigger22472

Senior Member
Thank you very much. It seems when asking Professors these questions they directed me to read an article that didn't in any way shape or form answer my question. I now feel much much better, I'm sure my husband thanks you as well!!
 
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badapple40

Senior Member
I disagree with IIAL. You can clearly be held to be engaging in the unauthorized practice of law, even if it is your husband that ultimately signs the pleadings. In re Thrasher, 661 N.E.2d 546 (Indiana 1996). In fact, merely analysis of facts and law can and is considered to be the practice of law (I would suggest that it is arguable that non-lawyers who post advice to this forum based on the analysis of facts to law are engaging in the unauthorized practice of law on a daily basis). Simply the drafting of a contract that has blanks in it for someone to later fill in, or writing a demand letter on behalf of someone else is likely to be held the unauthorized practice of law.

A different question may exist in a marital relationship. My research reveals no situation where one spouse was found to be committing the unauthorized practice of law by helping another spouse. In fact, as has been noted, the spousal relationship is one that is protected and favored under the law.

Were the cat not already out of the bag, as the saying goes, on this one, I would say that calling your local bar association's ethics office for further guidance would be the way to go. Since the cat is out of the bag, I would personally keep this on the downlow as much as possible.
 
I

I AM ALWAYS LIABLE

Senior Member
badapple40 said:
I disagree with IIAL. You can clearly be held to be engaging in the unauthorized practice of law, even if it is your husband that ultimately signs the pleadings. In re Thrasher, 661 N.E.2d 546 (Indiana 1996). In fact, merely analysis of facts and law can and is considered to be the practice of law (I would suggest that it is arguable that non-lawyers who post advice to this forum based on the analysis of facts to law are engaging in the unauthorized practice of law on a daily basis). Simply the drafting of a contract that has blanks in it for someone to later fill in, or writing a demand letter on behalf of someone else is likely to be held the unauthorized practice of law.

A different question may exist in a marital relationship. My research reveals no situation where one spouse was found to be committing the unauthorized practice of law by helping another spouse. In fact, as has been noted, the spousal relationship is one that is protected and favored under the law.

Were the cat not already out of the bag, as the saying goes, on this one, I would say that calling your local bar association's ethics office for further guidance would be the way to go. Since the cat is out of the bag, I would personally keep this on the downlow as much as possible.
Click to expand...

My response:

First you disagree with me (it's spelled "IAAL", by the way) by citing a case that's completely off the mark from our writer's facts, and then you appear to agree with me when you say, "A different question may exist in a marital relationship. My research reveals no situation where one spouse was found to be committing the unauthorized practice of law by helping another spouse. In fact, as has been noted, the spousal relationship is one that is protected and favored under the law."

So, since "In the matter of Thrasher" doesn't apply (because in that case, the parties were unrelated by blood or marriage), are you agreeing or disagreeing? From your quoted statement, you must be agreeing with me.

IAAL
 
B

badapple40

Senior Member
IAAL,

I am saying I am not sure about the spousal relationship, and would call the bar association if it were me. I am not disagreeing with your analysis, but am not willing to put myself on the line as agreeing either.

"Second, any papers that YOU may have researched, and that YOU may have written, is NOT "UPL" because you're merely acting as a scrivener for your husband. It's your husband's signature that's going on the pleadings, and he's the one appearing for the hearing."

I disagree with that statement insofar as it has the implication that researching and writing documents for others. She researched, advised, and acted as more than the scrivener. In a non-spousal relationship, this would clearly be UPL. I didn't want to give anyone the impression that they are safe to research and draft pleadings for others without a license to practice law.

As I said before though, the spousal relationship throws me for a loop because there is no case law on point, not only in the jurisdiction in question, but nationwide, and the professional rules/governance for the bar rules don't cover the spousal situation.

Were I an appellate judge, I would concur in the judgment and concur in part. :D
 
R

ResIpsaLoquitur

Guest
A question . . .

The OP states that her husband "did in fact have the parenting plan and motion looked over by a local attorney who told us that it looked good." By agreeing to review these documents that the local attorney knew were prepared by a lay person and offering what would be considered an evaluation of their legal form and substance (it would be a stretch to claim that "it looked good" referred to the folder cover), hasn't the attorney extended his professional auspices to the preparer; thereby effectively assuming responsibility for the documents and tacitly accepting the wife as his scrivener? (Assuming, of course, that Indiana law routinely allows these types of documents to be prepared by lay employees subject to final approval by an attorney and that there are no mandatory educational or licensing requirements for lay persons working in this capacity that the wife did not possess.)
 
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