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HHDCV-10-6008194 SUSAN BYSIEWICZ VS. NANCY DiNARDO, et al

SUPERIOR COURT HARTFORD J.D. April 18, 2010 AMICUS BRIEF OF MARK DUBOIS

INTRODUCTION At the request of the Court, Sheldon, J., the undersigned, Mark Dubois, submits this brief to aid this tribunal on the issues in this case concerning the definition of the practice of law. Pursuant to Practice Book 2-34A(b)(8), Disicplinary Counsel is charged with the investigation and prosecution of cases involving Statutes 51-88, the “unauthorized practice of law” regime. In the nearly six and a half years that the office of Disicplinary Counsel has been in existence, we have had occasion to inquire into whether conduct complained of has been the practice of law on numerous occasions. We have opened over 300 formal files on a variety of cases ranging from out-of-state law firms representing Connecticut residents through use of the Internet, the provision of legal and related services by non-lawyers (insurance agents, paralegals, advocates), “authorized” practice of law by non-lawyers, the creation and implementation of Practice Book Sections 2-44A and 2-15A and amendments to Rule 5.5 of the Rules of Professional Conduct as a part of the “multijurisdictional practice of law” initiative and a


host of other activities. The following is presented merely as an aid to the Court, and is not the official position of the Office of Disciplinary Counsel or of the Judicial Branch. With all of the above as prologue, it would appear that the present case does not present new or unique issues of law. Settled law would suggest that the operation of a constitutional office of a coequal branch of government is not the practice of law subject to regulation by the Judicial Branch. However, it is similarly well settled, both by law and practice that a non-legal enterprise, be it a government office, a corporation or a church may have an internal legal function, ministering to its own institutional legal needs. Lawyers laboring in that area certainly are practicing law. As to whether the plaintiff in the present case engaged in the practice of law and, if so, in a quantum sufficient to satisfy the qualifying statute are a mixed questions of law and fact left to the Court, and one as to which the undersigned is agnostic. FACTS The plaintiff is the Secretary of the State of the State of Connecticut. 1 Her office exists by virtue of Section 23 of Article Fourth of the Constitution of the State of Connecticut. In accordance with Article Fourth of the Constitution, the Secretary of the State is a member of the Executive Branch of government. The Executive Branch is a “separate magistracy� from either legislative or judicial departments. Constitution, Article At trial, witnesses referred to the plaintiff as Secretary of State. Hillary Clinton is Secretary of State. Susan Bysiewicz is Secretary of the State. 1

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Second. In addition to her Constitutional duties as keeper of records, the Secretary has statutory duties as the Commissioner of Elections, which duties are found generally in Title 9 of the statutes, including advising local officials on election matters, preparation of informational materials and the management of election matters. Statutes 9-3; 9-4; 923k; 9-23m; 9-139a; 9-139b; 9-150a(h) and others. The plaintiff has announced her intention to seek nomination to the position of Attorney General from the Democratic Party. Plaintiff alleges that a question has arisen as to whether she meets a statutory requirement of 10 years of “active practice at the bar of this state” as required by Statutes 3-124. She is and has been a member in good standing of the Connecticut bar since 1986. As the undersigned understands it, plaintiff claims that her performance of some of the duties of Secretary of the State established in Statutes 9-3 and 9-4, especially in providing legal information to the public, acting as a public advocate on voting and other political issues and appearing and testifying at the legislature all qualify as practicing law. She also claims that working with and supervising lawyers in her office is the practice of law. The plaintiff’s office has an internal legal unit. 2 Attorney Leslie Marra was described by the plaintiff as “general counsel” of the office, and the department is staffed by attorneys admitted to practice law in Connecticut. The external legal affairs of the office, such as the enforcement of election laws, prosecution and defense of court 2

My word, not the plaintiff’s or that of her office.

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proceedings and negotiation of contracts are provided by the Attorney General. When that happens, the Secretary and her office are the “client” of the Attorney General. Within the legal unit, lawyers consider the institution to be their client, and understand that they are bound by the Rules of Professional Conduct (RPC), including duties of loyalty, confidentiality and freedom from conflicts. Attorneys from the legal unit, as well as election officers, and the Secretary herself, provide information to the public on matters dealing with the election laws. This is done on a non-partisan basis, without concern as to the possibly conflicting legal or political interests of the callers or parties. No formal record is kept of such information-giving activities, though occasionally memos may be placed in files. These files are usually organized by issue and not by client. Callers or other recipients of information are given neither engagement (RPC 1.5(b) or “disengagement” (RPC 1.16) letters. External communications of the office, including responses to calls and letters of advice are considered public. LAW AND ANALYSIS THE HISTORY OF DEFINING AND REGULATING THE PRACTICE OF LAW The development of a professional identity and canons of conduct by lawyers, and restricting the practice of law as these concepts are understood today was a creature of the late 19th Century. See generally, James M. Altman, Considering the A.B.A.’s 1908 Canons of Ethics, 71 Fordham Law Review 6 (2003). To any student of the history of law as a profession in the United States, the fact that Statutes 3-124

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attempts to impose qualifications on the State’s chief legal officer comes as no surprise. It is, in many ways, a creature of its time. However, the concept of limiting bar admission, and of judges examining candidates to the bar to determine whether they were of a “good and virtuous” nature, “of good fame, learned and sworn to their duty” actually harkens back to the early 15th Century in the passage of 4 Henry IV, Chapter 18 in 1402. Gardner v. Conway, 234 Minn. 468, 477-79 (1951). Justifications for limiting the practice of law to the professional lawyers include the specialized nature of the work, the need in insure a minimum level of both competence and moral character, and the creation of a remedy forum for clients. “The practice of law is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special qualifications as to learning in the law and to be of good moral character.” State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 233-34 (1958); see also Deborah L. Rhode, Access to Justice, 79-102 (2004); Deborah J. Cantrell, The Obligation of Legal Aid Lawyers to Champion Practice by Non-lawyers, 73 Fordham L.R. 883, (2004) and sources cited therein; Quinton Johnstone, Connecticut Unauthorized Practice Laws and Some Options for Their Reform, 36 Conn. L.R. 303 (2004). Concomitant with the development of an organized professional bar was the development of unauthorized practice enforcement. In 1933, the American Bar Association appointed its first unauthorized practice of law committee. Robert J. Reis,

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The Unauthorized Practice of Law in Texas, 60 Tex. B. J. 37 (1997). That very same year, Statutes 51-88 was broadened to cover not just court practice but everything generally understood to be the practice of law. CBT, 145 Conn. at 233-34 citing to Grievance Committee v. Payne, 128 Conn. 325, 330 (1941). The power to define the practice of law and regulate those who engage in it is vested solely in our Judicial Branch. CBT, 145 Conn at 232. Whether, as argued by Professor Johnstone, such an enterprise serves an important public protection purpose, or as argued by Professor Cantrell, serves to restrict access to legal services in favor of protecting lawyers’ turf, the fact remains that every state has an authorized practice of law statutory regime.

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Regardless of the bars’ and courts’ efforts at restricting the practice of law to lawyers, non-lawyers commonly and frequently engage in law-related conduct in two ways—in the allowed or permitted practice of law by lay persons and when engaged in conduct that, though appearing to involve or implicate law and legal matters, is not deemed to be the practice of law. In advancing both of their respective arguments, plaintiff and the defendant Republican Party have relied upon P.B. 2-44A. This rule represents an attempt to codify the existing definitions of the practice of law. ORIGINS OF PRACTICE BOOK 2-44A

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See appendix A, 50 state survey of UPL regulations prepared by Marc Miller. Mr. Miller is presently a TAC at the Hartford Superior Court.

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When the undersigned was appointed Disciplinary Counsel in 2003, it was soon discovered that enforcement of unauthorized practice cases was going to be difficult if the only rule available to educate the public on what was and was not the practice of law was a 50-year old common-law tautological construct providing essentially that the practice of law is what the practice of law is. Thus, as the undersigned was both on the Board of Governors of the Conn. Bar Association and on its unauthorized practice committee, the committee was asked to draft a definition. Attorney Carl Porto drafted the present rule, drawing from rules in Washington and Utah. After Chief Justice Sullivan retired from the Supreme Court, the Bar Association crafted a proposal to adopt amendments to Rule 5.5 of the Rules of Professional Conduct to implement what is commonly known as the multijurisdictional practice of law regime. This regime allows foreign lawyers to visit Connecticut to pursue legal matters beginning in their states on a temporary and occasional basis. The concept had been vigorously blocked at the Bar Association for many years by both the litigation and real property sections who feared losing business to foreign interlopers. The definition of law rule was used to codify the existing law on the practice of law and give them some assurance that the entire regulatory regime was not being abandoned with the adoption of the multijurisdictional practice rules. Along with the RPC 5.5 rule changes and the definition rule came Practice Book 2-15A, the Authorized House Counsel rule. For over 10 years general counsel from

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some of Connecticut’s biggest corporations, certain leaders of the Bar Association as well as the CBA corporate counsel section and WESFACAA, an association of Westchester County and Fairfield corporate attorneys, had been trying to get a house counsel rule passed. Members of the Supreme Court, including Chief Justice Sullivan, were adamant that the rule would never be adopted and the proposal lay dormant while our Disciplinary Counsel operated under a “don’t ask, don’t tell” program concerning the practice of law issues involving corporate counsel. During the presidency of Lou Pepe, the Bar Association was finally able to corral the needed support for the adoption of all three rules, described together as “the three legs of the stool.” The proposal went to the Rules Committee and was eventually adopted by the judges. P.B. 2-44A(a) represents an attempt at defining, in a non-exclusive manner 4, the then generally understood definition of the practice of law. Sections (b)(1) through (12) represented areas of allowed conduct, whether or not the conduct was the practice of law. Sections (c), (d) and (e) represented additional areas where it was recognized that law-related conduct may occur but where it was recognized that the conduct was not the practice of law--i.e. the work of paralegals, the giving of legal information to the public and the operations of government offices. Sections (d) and (e) are relevant to the discussion below. As argued herein, the provision of legal information to the public and “Any attempt to formulate a lasting, all encompassing definition of ‘practice of law’ is doomed to failure.” State Bar of Michigan v. Cramer, 249 N.W.2d 1, 7 (Mich.1976)). 4

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the external operations of government offices are not generally understood to be the practice of law. THE PRACTICE OF LAW BY NON-LAWYERS During argument on the defendant Republican Party’s motion to dismiss for failing to prove a prima facie case on April 15 th, this Court correctly posited that the resolution of this case may indeed revolve around whether the conduct described by Secretary Bysiewicz and found in Statutes 9-3 and 9-4, conduct that in the past has been engaged in both by lawyers and non-lawyers, is an example of the permitted practice of law by non-lawyers (and thus the practice of law when pursued by herself and others who are lawyers) or is not the practice of law. There is law illustrating both approaches to the question. Our Supreme Court in In Re Darlene C, 247 Conn. 1 (1998) illustrated the two different regulatory approaches which allow the practice of law by non-lawyers. In the majority opinion, the court held that the filing of neglect petitions by social workers in accordance with a statute permitting same to be the allowable practice of law by non-lawyers. In his concurrence, Justice Borden reached the same conclusion, but argued that it is permitted because it is not the practice of law. Similar dichotomies in approach can be found elsewhere. Professor Johnstone, at 36 Conn L.R. at 309-10, notes that most Connecticut state agencies allow non-lawyer representation: Most of the many Connecticut state executive agencies that hold hearings on

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contested matters have regulations as to who may appear before the agency… Typical of agency regulatory language as to who, other than agency personnel, may appear at agency hearings is that “[a] party or intervenor may appear in person or by an attorney or other representative.” Some regulations are more detailed. One even adds: “Nothing contained herein shall be construed to require any representative to be an attorney at law.” (Id.,internal footnotes omitted.) Similar provisions can be found in the federal system. For instance, see 35 U.S.C. § 2(b) and 37 C.F.R. § 11.6(b) (non-attorney admitted to patent bar may practice at U.S. P.T.O.); 8 C.F.R. § 292 and 1292 (permit non-lawyers who possess certain character requirement or who are affiliated with charitable institutions to appear in immigration matters, but restrict them from collecting fees to do so); 5 C.F.R. § 1201.31(b) (nonattorney may represent individual at Merit Systems Protection Board as long as designated representative is willing and available to serve); 11 U.S.C. 110 (non-lawyers may prepare bankruptcy petitions but may not give legal advice.) These are all instances of non-lawyers being allowed to do work traditionally understood to be the practice of law and which would be the practice of law if engaged in by lawyers. By contrast, CBT held that the conduct of the banks in question when giving information to the public about trust, estate and tax matters and engaging in fiduciary services was permissible, not because this was the permitted practice of law by lay persons but because it was not the practice of law. The court felt that when the banks engaged in these and similar activities, they did so not to render individual legal advice to specific individuals but to provide general information to the public (albeit on legal

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issues) and for the purpose of promoting their own institutional business goals and interests. Other states have also addressed this issue, often wrestling with the same problem of defining the conduct as lawyering or not. In Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio St. 3d 444, 857 N.E.2d 95 (2006) the Cleveland Bar Association sought to enjoin a 3rd party administrator from engaging in employer representation in industrial board and workers’ compensation cases. The Ohio Supreme Court, which had previously decided that such activity was the permitted practice of law by non-lawyers, decided the newer case on the basis that while the activity of the defendant’s employees involved skill and specialized knowledge of the legal system, unless and until the employees crossed the line from giving informational advice into giving specific legal advice, counsel and guidance on a particular case, that the conduct complained of would not be the practice of law. In Sobol v. Alarcon, 212 Ariz. 315 (2006), the Arizona Supreme Court upheld a claim of immunity where a person filed a disciplinary claim with the bar over the activities of a non-lawyer document preparer. The court noted that it had adopted a program permitting non-lawyer documentation preparation as long as the preparers did not offer legal advice. Thus, the conduct was permitted by lay persons, the bar had jurisdiction over the practice and disciplinary jurisdiction over the practitioners, and complaints concerning a licensed document preparer would be privileged. See also In re Supervised Estate of Curts, 905 N.E. 2d

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533 (Ind. App. 2009) (contrast between filling in information on forms prepared by lawyer where chance of error is low and giving of specific advice on legal rights and effects of instrument created); In Re Swisher, 285 Kan. 1084 (2008) (advice on specific form of bankruptcy relief would be best for a particular individual was specific individualized legal advice rather than simple information giving and unauthorized practice of law by suspended lawyer); Office of Disicplinary Counsel v. Palmer, 115 Ohio Misc. 2d 70 (Ohio Commissioners of Unauthorized Practice, 2001)(giving advice on law held not to be holding oneself out as an attorney in case involving website offering “free legal advice” operated by non-lawyer); Oregon State Bar v. Smith, 149 Or. App. 171, 182, (1997) (“The mere general dissemination of legal information by nonlawyers does not constitute the unauthorized practice of law.”); Trala v. Melmar Inds., Inc. 254 A. 2d 249 (Pa. Super. 1969) (court discusses contrast between gratuitous (and erroneous) legal information given by court clerk and legal advice obtained from reading a statute or a speaking to a lawyer.) One area where non-lawyer legal advice and information has become important lately is in providing legal services to underserved or poor communities through the use of public education programs and “unbundled legal services.” See for instance, Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 39 Fordham Urb. L.J. 37 (2010); John M. Greacen, Legal Information v. Legal Advice Developments During the Last Five Years,

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84 Judicature 198 (2001). Indeed, at a symposium on law and technology held on April 11, 2010, the Connecticut Bar Foundation announced that in response to a crisis in funding of the legal services community, it had developed a robust website offering legal information, “how to� videos, and fillable forms with detailed instructions in several languages. In discussions with the undersigned, it was determined that since such work by the foundation was the giving of legal information, but not of specific individualized legal advice in an attorney-client setting, no unauthorized practice or ethical issues were implicated. One important factor was that the information was freely offered to the general public, allowing both sides to a particular case to obtain the exact same information and help. Additionally, there was no expectation of privacy, and the information would be presented in a fashion that no attorney-client relationships could reasonably be understood to exist or be deemed to arise. Granted, many of the participants giving the legal information in this situation were lawyers and legal service organizations. However, the same analysis would apply to non-lawyers providing the similar information. Practice Book 2-44A probably makes it no longer necessary to tease apart the issue of whether particular conduct such as is being examined in this case is either the practice of law or not, because even if it is, sections (b) though (e) of the rule permit the conduct to occur. However, the present matter appears to require the Court to answer the question, if for the last time. As discussed below, it would appear that when the

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Secretary discharges her constitutional and statutory duties of office that this conduct is not the practice of law. Several arguments support this conclusion. First, on separation of powers grounds, binding authority would appear to prohibit the Judicial Branch from deeming the administration of a constitutional office and the exercise of statutory powers in the Executive Branch to be the practice of law. Second, while our courts have not addressed the issue, many states that have reach the conclusion that legislative advocacy is not the practice of law. Finally, as the Court noted during argument, form often follows function. In the context that information is given by the Office of Secretary of the State to the public, it does not appear that any participants believe that the Secretary or any of her staff are engaging in the practice of law. They are doing what exemplary public servants do—informing and empowering the public with information. Unless the giving of such advice is done in the context of an attorney interacting with a client, it does not appear to be the practice of law. THE SEPARATION OF POWERS ISSUE If Adams v. Rubinow, 157 Conn. 150 (1968) and its progeny stand for anything, it is that the “separate magistracy” provision of Article 2 of the Constitution would urge against this Court deeming the operations of an Executive Branch agency and the official actions and conduct of a Constitutional officer of the State (other than perhaps the Attorney General) as being the practice of law. See also Stolberg v. Caldwell, 175 Conn. 586, 598-99, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v.

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Davidson, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981) ; State v. Moynahan, 164 Conn. 560, 568, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); CBT, 145 Conn. at 231. “It is axiomatic that no branch of government organized under a constitution may exercise any power that is not explicitly bestowed by that constitution or that is not essential to the exercise thereof.” Kinsella v. Jaekle, 192 Conn. 704, 723 (1984). Of course, the Judical Branch has the power to regulate attorneys employed in other branches of government, but that power does not interfere with the ability of a branch of government to manage its own affairs without intrusion from another co-equal branch. Massameno v. Statewide Grievance Committee, 234 Conn. 539, 564 (1995). It is a basic principle of constitutional law that one branch of government cannot interfere with or encroach on either of the other departments. State v. Stoddard, 126 Conn. 623, 627 (1940). The plaintiff’s argument appears to be that when she speaks with constituents, when she advocates from her bully pulpit, and when she appears at the legislature to advance the interests of her office that she is practicing law. Thus, taken to its logical conclusion, the Judicial Branch would have the power to regulate her in all of these activities. 5 Further, to the extent that the Secretary’s statutory duties were the practice This is not to say that the plaintiff can never be practicing law when she pursues her constitutional and statutory duties. As discussed below, to the extent that the plaintiff visits her with her staff attorneys and works with them on legal issues she may well be practicing law. 5

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of law, attempts by the legislature to enact or modify statutory duties for her would represent the legislature managing and regulating the practice of law, and undoubtedly unwelcome. "No statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law." CBT, at 232, quoting from Opinion of the Justices, 279 Mass. 607, 611, 180 N.E. 725. While the lines between branches of government are not always bright, Hopson’s Appeal, 65 Conn. 140 (1894) (some functions may exist on the border between executive and judicial), and occasionally involve areas of coequal or concurrent authority such as they overlap, Massameno, 234 Conn at 568, a better solution to the present inquiry may be to leave each branch of government to its exclusive magistracy, and not mix them when there is no need to do so. Otherwise, the Judicial Branch and its officials, such as the undersigned, might be dragged into disputes involving what are essentially political questions or matters best left in other branches of government. 6 Consider, for example, the possibility of a citizen, believing that Secretary Bysiewicz, or a governor such as the late Thomas Meskill who was also a lawyer, had uttered an untruth while engaged in an official duty filing a grievance claiming that as an attorney engaged in the practice of law, the Secretary or the Governor were bound by the provisions of Rule 4.1 of the Rules of Professional Conduct, “(i)n the course of The Hartford Courant of April 18, 2010 reported an investigation of the plaintiff concerning the use of her office computer to track holiday cards. The undersigned hopes he does not get a grievance complaint to investigate over the same issue. 6

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representing a client a lawyer shall not knowingly…make a false statement of material fact…” Once can only imagine the outcry that would accompany any attempt by the Statewide Grievance Committee to prosecute a constitutional officer engaged in the duties of her office for statements made in her official capacity which others believe to be were false or misleading. Yet that would be the logical conclusion of the plaintiff’s argument in this regard. This Court can take judicial notice of the fact that many Executive Branch agencies give legal information to the public every day. When a citizen calls the Department of Agriculture inquiring about milk price supports for dairy farmers, or asks the Commissioner of Health about immunization requirements for school children, or the Department of Education about the minimum requisites for teaching high school, they are receiving the same sort of specific and detailed legal information that the Secretary and her staff (lawyers and non-lawyers alike) provide daily. Are they all practicing law? When the Board of Chiropractic Medicine, which includes both doctors and lay person but no lawyers, issues a declaratory ruling that doctors of chiropractic medicine do not need to warn patients of the risk of stroke, are they also practicing law? Certainly not. Indeed, if this Court were to hold that all of these and many other activities of government officials involving information-giving on legal issues were to be the practice of law, (but areas where lay person can also practice), the exceptions would soon swallow the rule and the outcry from the public against law and lawyers would soon be

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deafening. A better result would be reached by holding that when giving advice and information to the public, an Executive Branch official or Constitutional officer is engaged in the business of government and not the practice of law. LEGISLATIVE ACTIVITY BY CONSTITUTIONAL OFFICERS IS NOT THE PRACTICE OF LAW Rule of Professional Conduct 3.9 recognizes that a lawyer, when representing a client before a legislative body, is practicing law and imposes upon her the duties of candor, fairness and decorum found in Rules 3.3 through 3.5. However, it would be argued that, as above, when the plaintiff appears in her official capacity before legislative committees to advocate for or against some public enterprise or initiative she is not practicing law, but rather carrying out the duties of her office.

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As with the truth-telling example above, imagine a lawyer-legislator or a lawyerSecretary in the circumstance where tempers become heated during a legislative Many states do not consider legislative activity by lawyers to be the practice of law. Florida Ass’n. of Professional Lobbyists, et al v. Division of Legislative Information Services, 7 So. 3d 511 (Fla. 2009)(Fla. Supreme Court decides, on certified questions from 11th Circuit, that regulatory scheme involving management of lobbyists and lobbying not violative of state constitution on separation of powers grounds because lobbying is not the practice of law); Black v. Southwestern Conservation District, 74 P. 3d 462 (Colo. App. 2003)(contrast between lawyer as lobbyist and lawyer as lawyer discussed in the context of when documents and communications with lawyer are subject to claim of privilege); Pletz v. Secretary of State, 125 Mich. App. 335, 348 (1983)(lobbying law does not regulate lawyers because lobbying is not practice of law); Reilly v. Ozzard, 33 N.J. 529 (1960)(state senator not precluded from also serving as township attorney on basis of common-law prohibition against holding incompatible offices because legislative activity not the practice of law.) 7

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debate or committee hearing. Would that person be subject to a grievance because they were practicing law, while their non-lawyer opponent across the aisle was not so constrained? Would the Grievance Committee be expected to police issues of candor by legislators or political figures when carrying out their official duties simply because the person is also a lawyer? Or would it be simpler, cleaner and more constitutionally appropriate to leave each branch of government to its own separate magistracy, and mix them only on those rare occasions when an issue of clear concurrent jurisdiction presented itself? THE CONTEXT IN WHICH LEGAL SERVICES ARE OFFERED IS RELEVANT TO DETERMINING WHETHER THE CONDUCT IS THE PRACTICE OF LAW Context matters when determining whether law is being practiced. For example, Rule 1.13 of the Rules of Professional Conduct speaks to the special duties of a lawyer who has an organizational client, such as an Executive Branch agency. (See also discussion of special circumstances attendant upon organizational or public clients in “Scope” preamble section to Rules of Professional Conduct and Rule 1.11 dealing with special conflicts rules applicable to government lawyers.) What comes clearly out of the rules and commentary is that lawyers can and often do legal work in corporate, institutional and governmental settings where the institution, agency or public weal is the client. See for example, Practice Book 2-15A(b)(2) permitting house counsel to provide legal services to an “organization…that is not itself engaged in the practice of law or the rendering of legal services outside of such organization, whether for a fee or otherwise, and does not charge or collect a fee for the representation or

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advice other than to entities comprising such organization for the activities of the authorized house counsel”; Gray Panthers v. Schweiker, 716 F. 2d 23, 33 (D.C. Cir. 1983)(government lawyers’ duty is to the public, to seek justice, and not to win or lose a particular case or harm or advantage any party); Commentary to Rule of Professional Conduct 3.8: “(t)he prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

In such settings, the usual roles of attorney and client are sometimes adjusted to suit the circumstance, while preserving the underlying ethical issues

recognized,

advanced and protected by the rules. For instance, in cases involving claims of privilege relating to governmental legal affairs, a privilege has been recognized relating to “internal” agency discussions with a lawyer. See commentary to Rule 1.13 “The Entity as the Client”, “(w)hen one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6”; State ex rel. Thomas v. Schneider, 212 Ariz. 292, 297 (2006)(upholding

the privilege furthers a culture in which consultation

with lawyers by government officials is accepted as a normal, desirable, and even indispensable part of conducting public business); State v. DeAngelis, 116 S.W.3d 396 (2003)(recording of discussions by police official with municipal attorney privileged and not available for use against official in criminal prosecution); U.S. v. American Tel. & Tel. Co., 86 F.R.D. 603, 621 (D.C. 1979)(head of a department or bureau should personify the government in communicating with counsel for the department or agency,

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and in asking legal advice of the Justice Department for purposes of claims of privilege); contra, Lory A. Barnsdale, Attorney Client Privilege for the Government Entity, 97 Yale L.J. 1725 (1988) (arguing that attorney-client privilege in governmental setting is against public policy favoring open government.)

Yet confidentiality and privilege

may be lost if the actions of the lawyer for the

client are not the practice of law. For instance in Massachusetts School of Law at Andover, Inc., v. American Bar Assn., 895 F. Supp. 88, 91 (1995) a law school sought to prevent discovery of certain information in the possession of an accreditation consultant who also happened to be a lawyer, claiming attorney-client privilege. Viewing the facts and circumstances surrounding the provision of the services by the lawyer, the court held that the person in question was not acting as a lawyer when he set up a visit to the school by an ABA committee and later prepared a report. Rather than acting as an attorney, “(t)he

nature of [his] work, the way in which he referred to

himself, the way MSL characterized him, and his prior experience establish that when [he] organized the visiting attorney committee and drafted its report, he was providing business services and not legal counseling.” Similar results are reached in unauthorized practice cases where the lawyer has been held not to be practicing law, though engaged in some sort of assistance to a client or law-related activity. Matter of Chimko, 444 Mass. 743, 751 (2005) (use of “Esq.” letterhead by lawyer and preparation of paperwork not practicing law when notice and reaffirmation sent to bankruptcy court in another state); Brower v. Hill, 133 Vt, 599 (1975)(lawyer representing himself in real

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estate transaction and giving legal information in the context of sale negotiations is not practicing law in state where he is not licensed). Evidence in this case and common knowledge supports the concept that most agencies of government have in-house legal functions, and lawyers laboring in those environs are bound by and follow the ethical rules applicable to lawyers engaged in the representation of their client. However, it is equally evident that lawyers employed in such offices may also engage in non-lawyer activities, such as providing general information to the public or ministerial or management functions.

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Thus, when

considering whether a lawyer is engaged in the practice of law in an institutional, corporate or governmental setting, the context of the lawyer’s conduct is important. When the lawyer acts, is it in a setting where the parties understand that an attorneyclient relationship is being formed? Does the conduct involve giving specific, individualized legal advice to a “client”, or is the lawyer providing general information on the law? Do the parties expect that the discussions will be held and the services rendered in an environment where confidentiality, diligence, and freedom from conflicts

Often, lawyers will respond to disciplinary complaints with the plea: “I was not practicing law when…” This defense does not insulate them, it simply moves our analysis from the representational rules and duties to organizational or systemic duties, c.f. Rules 8.4(2) and (3) creating disciplinary consequences for criminal acts or dishonesty, fraud, deceit or misrepresentation. The undersigned recently participated in a panel discussion and spirited debate at a meeting of the Association of Professional Responsibility Lawyers in Chicago entitled “Nexus Perplexus.” My colleagues on the defense side continue to bemoan the lack of practice of law nexus needed for bar discipline involvement. 8

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will apply, or is it understood that whatever is said will be public and the same advice will be offered to all parties to a dispute? Is the lawyer an attorney who happens to practice law in a governmental or institutional environment, or a corporate employee who also happens to be a lawyer? THE TIPPING POINT Perhaps the answer to the question of when conduct becomes the practice of law can be found in the trial court decision of the CBT matter, found at 20 Conn. Supp. 248, 261-62 that “(s)ince to constitute the practice of law, the acts must be performed on behalf of another, the vital question for determination… is whether the acts performed by the banks…are performed for themselves, as incidental to their duties as fiduciaries, or, on the other hand, from their very nature are performed on behalf of others.” In that case, the court found that the conduct by the banks was to promote its own fiduciary business, and, thus, whether performed “through lay or lawyer”, CBT, 20 Conn. Supp. at 268, would not be the practice of law. So also here, when citizens and public officials call the Secretary of the State, they are provided important and detailed legal information, but not as clients of lawyers, but as citizens of a government. Thus, the operation of that office is not governed or controlled by the Judicial Branch as the practice of law. And so also, complaints about service would be dealt with in a political setting, and not by the filing of a grievance alleging that the Secretary or one of her lawyers had not been competent or diligent.

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A much different analysis would apply when the Secretary interacts with her staff attorneys. Whether she seeks their advice as a client of a lawyer (c.f. the personification of the office, American Tel. & Tel, 86 F.R.D. at 621) or as a colleague is not for the undersigned to comment on.

How these questions should be answered in the present

case is a matter for advocacy by the parties, and decision by the Court. However, it may well be that the answer to these questions resolves around whether the conduct in question is that of a political figure who also happens to be a lawyer, or a lawyer who also happens to be a constitutional officer of the state. CONCLUSION The undersigned appreciates this Court’s solicitation of a brief on these issues. Frankly, I am unhappy with this presentation, as it is necessarily cursory and conclusory because of time and resource constraints. With more time, a fuller exploration of the fascinating issues raised herein might have been accomplished, though sometimes, as with Occam’s Razor9, the simplest solution is the best. It is hoped, however, that the thoughts contained herein are of use to the Court and the parties.

9

Entia non sunt multiplicanda praeter necessitatem.

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By:_________________________________ Mark A. Dubois Juris No. 017039 100 Washington Street Hartford, Connecticut 06106 phone (860) 706-5055 fax (860) 706-5063 SERVICE CERTIFIED BY E-MAIL TO ALL COUNSEL OF RECORD.

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APPENDIX A 50 State Survey Unauthorized Practice of Law Statutes Alabama – Ala. Code 1975 § 34-3-1 If any person shall, without having become duly licensed to practice, or whose license to practice shall have expired either by disbarment, failure to pay his license fee within 30 days after the day it becomes due, or otherwise, practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of a misdemeanor and fined not to exceed $500.00, or be imprisoned for a period not to exceed six months, or both. Alaska – AK ST § 08.08.230 A person not an active member of the Alaska Bar and not licensed to practice law in Alaska who engages in the practice of law or holds out as entitled to engage in the practice of law as that term is defined in the Alaska Bar Rules, or an active member of the Alaska Bar who willfully employs such a person knowing that the person is engaging in the practice of law or holding out as entitled to so engage is guilty of a class A misdemeanor.

Arizona – 17A A.R.S. Sup.Ct.Rules, Rule 76 (b) Sanctions and Dispositions. 1.

Agreement to Cease And Desist. Respondent and unauthorized practice of law counsel may enter into a "Consent to Cease and Desist Agreement" prior to formal proceedings that states respondent agrees to cease and desist from engaging in acts found to be the unauthorized practice of law, to refund fees collected, to pay costs and expenses, and to make any other restitution.

2.

Cease and Desist Order. The superior court may enter an order for a respondent to

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immediately cease and desist from conduct that constitutes engaging in the unauthorized practice of law. After entry of a cease and desist order or judgment, and service thereof upon the respondent, respondent shall:

A. notify existing customers, opposing counsel or opposing parties, if not represented by counsel, of such sanctions: B. return to all customers in pending matters any documents or other property to which they are entitled, including their files; and C. cease use of any reference to titles or descriptions prohibited in the order or judgment on all advertising, business cards, and letterhead. 3. Injunction. The superior court, at any stage in an unauthorized practice of law proceeding, may enjoin a respondent from engaging in the unauthorized practice of law and order a respondent immediately to cease and desist such conduct. An injunction or order to cease and desist may be issued without proof of actual damages to any person.

4. Civil Contempt. The superior court may issue a civil contempt citation and determine if the respondent is guilty of contempt and, by order, prescribe the sanction, including assessment of costs, expenses, and reasonable attorney fees.

5. Restitution. In the event actual damages are shown, restitution may be ordered to any individual for money, property, or other items of value received and retained by a respondent.

6. Costs and expenses. Costs, expenses, and attorney's fees relating to the proceedings shall be assessed against every respondent upon whom another sanction is imposed. Assessment shall be included in the order or judgment.

Arkansas - A.C.A. ยง 16-22-501 (a) A person commits an offense if, with intent to obtain a direct economic benefit for himself or herself, the person: (1) contracts with any person to represent that person with regard to personal causes of action for property damages or personal injury; (2) advises any person as to the person's rights and the advisability of making claims for personal injuries or property damages;

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(3) advises any person as to whether or not to accept an offered sum of money in settlement of claims for personal injuries or property damages; (4) enters into any contract with another person to represent that person in personal injury or property damage matters on a contingent fee basis with an attempted assignment of a portion of the person's cause of action; (5) enters into any contract, except a contract of insurance, with a third person which purports to grant the exclusive right to select and retain legal counsel to represent the individual in any legal proceeding; or (6) contacts any person by telephone or in person for the purpose of soliciting business which is legal in nature, as set forth above. (b) This section does not apply to a person currently licensed to practice law in this state, another state, or a foreign country and in good standing with the State Bar of Arkansas and the state bar or licensing authority of any and all other states and foreign countries where licensed. (c) Except as provided by subsection (d) of this section, an offense under subsection (a) of this section is a Class A misdemeanor. (d) An offense under subsection (a) of this section is a Class D felony if it is shown on the trial of the offense that the defendant has previously been convicted under subsection (a) of this section. California – West's Ann.Cal.Bus. & Prof.Code § 6126 , West's Ann.Cal.Bus. & Prof.Code § 6126.5 (a) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction

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under this subdivision, the court shall state the reasons for its sentencing choice on the record. (b) Any person who has been involuntarily enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or county jail. However, any person who has been involuntarily enrolled as an inactive member of the State Bar pursuant to paragraph (1) of subdivision (e) of Section 6007 and who knowingly thereafter practices or attempts to practice law, or advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or county jail. (c) The willful failure of a member of the State Bar, or one who has resigned or been disbarred, to comply with an order of the Supreme Court to comply with Rule 955, constitutes a crime punishable by imprisonment in the state prison or county jail. (d) The penalties provided in this section are cumulative to each other and to any other remedies or penalties provided by law. ALSO (a) In addition to any remedies and penalties available in any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor, the court shall award relief in the enforcement action for any person who obtained services offered or provided in violation of Section 6125 or 6126 or who purchased any goods, services, or real or personal property in connection with services offered or provided in violation of Section 6125 or 6126 against the person who violated Section 6125 or 6126, or who sold goods, services, or property in connection with that violation. The court shall consider the following relief: (1) Actual damages.

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(2) Restitution of all amounts paid. (3) The amount of penalties and tax liabilities incurred in connection with the sale or transfer of assets to pay for any goods, services, or property. (4) Reasonable attorney's fees and costs expended to rectify errors made in the unlawful practice of law. (5) Prejudgment interest at the legal rate from the date of loss to the date of judgment. (6) Appropriate equitable relief, including the rescission of sales made in connection with a violation of law. (b) The relief awarded under paragraphs (1) to (6), inclusive, of subdivision (a) shall be distributed to, or on behalf of, the person for whom it was awarded or, if it is impracticable to do so, shall be distributed as may be directed by the court pursuant to its equitable powers. (c) The court shall also award the Attorney General, district attorney, or city attorney reasonable attorney's fees and costs and, in the court's discretion, exemplary damages as provided in Section 3294 of the Civil Code. (d) This section shall not be construed to create, abrogate, or otherwise affect claims, rights, or remedies, if any, that may be held by a person or entity other than those law enforcement agencies described in subdivision (a). The remedies provided in this section are cumulative to each other and to the remedies and penalties provided under other laws. Colorado – C.R.S.A. § 12-5-112

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Any person who, without having a license from the supreme court of this state so to do, advertises, represents, or holds himself out in any manner as an attorney, attorney-atlaw, or counselor-at-law or who appears in any court of record in this state to conduct a suit, action, proceeding, or cause for another person is guilty of contempt of the supreme court of this state and of the court in which said person appears and shall be punished therefore according to law. Nothing in this section shall prevent the special admission of counselors residing in other states, as provided in section 12-5-113. In Colorado, engaging in UPL is not a crime in and of itself. We do refer the more serious cases to the local district attorney office for criminal prosecution under our theft statutes or criminal impersonation statutes. We may also refer the matter to the state Attorney General for prosecution under our state consumer fraud statute. Our office (Colorado Supreme Court Office of Attorney Regulation Counsel) is primarily responsible for UPL prosecution under our state Supreme Court rules, C.R.C.P. 228 240.1. Go to: http://coloradosupremecourt.com/pdfs/Regulation/UPL%20Rules %202007.pdf to review our Colorado Supreme court rules that deal with UPL prosecution. We first seek an informal agreement per 232.5. If the respondent will not agree to no longer engage in UPL or if the conduct involves serious harm and the need for restitution , we proceed to injunctive proceedings per 234-237. If a respondent violates the order of injunction, then and only then do we proceed with contempt proceedings per 238-239. While the statute cited in your survey, 12-5-112, is still on the books, we do not proceed under the statute. Our definition of the practice of law, and how we handle UPL, is described in People v. Shell, 148 P.3d 162 (Colo. 2006). Connecticut Statutes 51-88 makes UPL a class B misdemeanor, $500 and 6 months. Delaware – 11 Del.C. § 1271 Injunction may be served, then…

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A person is guilty of criminal contempt when the person engages in any of the following conduct: (1) Disorderly, contemptuous or insolent behavior, committed during the sitting of a court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority; or (2) Breach of the peace, noise or other disturbance directly tending to interrupt a court's proceedings; or (3) Intentional disobedience or resistance to the process, injunction or other mandate of a court; or (4) Contumacious refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any proper interrogatory; or (5) Knowingly publishing a false or grossly inaccurate report of a court's proceedings; or (6) Intentional refusal to serve as a juror; or (7) Intentional and unexcused failure by a juror to attend a trial at which the person has been chosen to serve as a juror; or (8) Intentional failure to appear personally on the required date, having been released from custody, with or without bail, by court order or by other lawful authority, upon condition that the person will subsequently appear personally in connection with a criminal action or proceeding. Criminal contempt is a class A misdemeanor, except for violations of subdivision (1) of this section. A violation of subdivision (1) of this section shall be a class B misdemeanor. District of Columbia-Rule 49 D.C. Court of Appeals Rules Rule 49(e)(2): (2) Violations of the provisions of this Rule 49 shall be punishable by the Court of Appeals as contempt and/or subject to injunctive relief. The Court of Appeals holds the power to include within its remedy compensation to persons harmed by violation of this Rule or of an injunction entered under it. Also, Rule 49(d)(3)(E) permits Unauthorized Practice of Law Committee to refer cases to U.S. Attorney for prosecution under criminal laws.

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http://www.dcappeals.gov/dccourts/appeals/cupl/index.jsp has many reference materials and opinions. Florida – FL ST § 454.23 Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Georgia – GA ST § 15-19-56 a) Any person, corporation, or voluntary association violating Code Section 15-19-51, 15-19-53, 15-19-54, or 15-19-55 (unauthorized practice of law) shall be guilty of a misdemeanor. Hawaii – HI ST § 605-17 Any person violating sections 605-14 to 605-16 (unauthorized practice of law) shall be guilty of a misdemeanor.

Idaho – I.C. § 3-420 If any person shall, without having become duly admitted and licensed to practice law within this state or whose right or license to practice therein shall have terminated either by disbarment, suspension, failure to pay his license or otherwise, practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer within this state, he shall be guilty of an offense under this act, and on conviction thereof be fined not to exceed five hundred dollars ($500), or be imprisoned for a period of not to exceed six (6) months, or both, and if he shall have been admitted to practice law he shall in addition be subject to suspension under the proceedings provided by this act.

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Illinois – 705 ILCS 205/1 Any person practicing, charging or receiving fees for legal services or advertising or holding himself or herself out to provide legal services within this State, either directly or indirectly, without being licensed to practice as herein required, is guilty of contempt of court and shall be punished accordingly, upon complaint being filed in any Circuit Court of this State. Such proceedings shall be conducted in the Courts of the respective counties where the alleged contempt has been committed in the same manner as in cases of indirect contempt and with the right of review by the parties thereto. Indiana – IC 33-43-2-1 Sec. 1. A person who: (1) professes to be a practicing attorney; (2) conducts the trial of a case in a court in Indiana; or (3) engages in the business of a practicing lawyer; without first having been admitted as an attorney by the supreme court commits a Class B misdemeanor Iowa – I.C.A. § 602.10101 Looks like contempt of court issues only (footnotes) Kansas – K.S.A. § 7-103 no specific penalty Contempt of Court may be issued – State, ex rel., v. Hill, 223 K. 579, 573 P.2d 837 Kentucky – Kentucky Revised Statute 524.130 covers the unauthorized practice of law and classifies it as a Class B misdemeanor. Also, penalties may be issued by court in the form of fines, costs, and injunctions. Kentucky Bar Association v. Fox, 536 S.W. 2d 469 (1976)

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Louisiana – Sup. Ct. Rules, Rule 19, Lawyer Disciplinary Enforcement Rules Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions: (1) Disbarment by the court. In any order or judgment of the court in which a lawyer is disbarred, the court retains the discretion to permanently disbar the lawyer and permanently prohibit any such lawyer from being readmitted to the practice of law. (2) Suspension by the court for an appropriate fixed period of time not in excess of three years. (3) Probation imposed by the court not in excess of two years, or imposed by the board or counsel with the consent of the respondent not in excess of two years; provided, however, that probation may be renewed for an additional two year period by consent or after a hearing to determine if there is a continued need for supervision. If the respondent objects to the board or counsel's imposition of probation, the misconduct must either be made the subject of formal charges or a recommendation that probation be imposed must be filed with the court. The conditions of probation should be stated in writing. Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. (4) Reprimand by the court or the board. A reprimand shall be in writing and either imposed in person or served upon the respondent by certified mail. A reprimand imposed by the court or board shall be published in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law. (5) Admonition by the board imposed with the consent of the respondent and the approval of the chair of a hearing committee. An admonition cannot be imposed after formal charges have been issued. Admonitions shall be in writing and served upon the respondent. They constitute private discipline since they are imposed before the filing of formal charges. Only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should an admonition be imposed. A summary of the conduct for which an admonition was imposed may be published in a bar publication for the education of the profession, but the lawyer shall not be identified. An admonition may be used in subsequent proceedings in which the respondent has been found guilty of misconduct as evidence of prior misconduct bearing upon the issue of the sanction to be imposed in the subsequent proceeding. (6) Upon order of the court or the board, or upon stipulation, restitution to persons financially injured.

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(7) Limitation by the court on the nature or extent of the respondent's future practice. (8) Repealed effective May 28, 1998. (9) Diversion imposed in accordance with Section 11(H). Diversions may be offered before or after investigation by disciplinary counsel for minor breaches of the Rules of Professional Conduct and are not public record. Diversion is offered only in cases of minor misconduct, when there is little or no injury to the public, the legal system or the profession. A diversion may be used as evidence in subsequent proceedings in which the respondent has been found guilty of misconduct bearing upon the issue of sanction to be imposed in the subsequent proceeding.

Maine – 4 M.R.S.A. § 807 Violation. Any person who practices law in violation of these requirements is guilty of the unauthorized practice of law, which is a Class E crime. Maryland – MD Code, Business Occupations and Professions, § 10-407 Under Section 10-606 of the Business Occupations and Professions article of the Maryland Code a person who practices law without admission to the bar is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding one year in jail. Also, the Attorney General or Bar Counsel appointed under Maryland Rule 16- 712 may sue to enjoin an unauthorized person from practicing, attempting to practice, or offering to practice law. The remedies and procedures set forth in this subtitle are in addition to and not in substitution for other remedies and procedures that address the unauthorized practice of law.

Massachusetts – M.G.L.A. 221 § 41 Whoever has been so removed and continues thereafter to practice law or to receive any fee for his services as an attorney at law rendered after such removal, or who holds himself out, or who represents or advertises himself as an attorney or counselor at law, or whoever, not having been lawfully admitted to practice as an attorney at law, represents himself to be an attorney or counselor at law, or to be lawfully qualified to practice in the courts of the commonwealth, by means

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of a sign, business card, letter head or otherwise, or holds himself out or represents or advertises himself as having authority or power in behalf of persons who have claims for damages to procure settlements of such claims for damages either to person or property, or whoever, not being an attorney at law, solicits or procures from any such person or his representative, either for himself or another, the management or control of any such claim, or authority to adjust or bring suit to recover for the same, or solicits for himself or another from a person accused of crime or his representative the right to defend the accused person, shall be punished for a first offence by a fine of not more than one hundred dollars or by imprisonment for not more than six months, and for a subsequent offence by a fine of not more than five hundred dollars or by imprisonment for not more than one year.

Michigan – M.C.L.A. 600.916 Sec. 916. (1) A person shall not practice law or engage in the law business, shall not in any manner whatsoever lead others to believe that he or she is authorized to practice law or to engage in the law business, and shall not in any manner whatsoever represent or designate himself or herself as an attorney and counselor, attorney at law, or lawyer, unless the person is regularly licensed and authorized to practice law in this state. A person who violates this section is guilty of contempt of the supreme court and of the circuit court of the county in which the violation occurred, and upon conviction is punishable as provided by law. This section does not apply to a person who is duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter. 600.916 Unauthorized practice of law. Sec. 916. (1) A person shall not practice law or engage in the law business, shall not in any manner whatsoever lead others to believe that he or she is authorized to practice law or to engage in the law business, and shall not in any manner whatsoever represent or designate himself or herself as an attorney and counselor, attorney at law, or lawyer, unless the person is regularly licensed and authorized to practice law in this state. A person who violates this section is guilty of contempt of the supreme court and of the circuit court of the county in which the violation occurred, and upon conviction is punishable as provided by law. This section does not apply to a person who is duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter.

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(2) A domestic violence victim advocate's assistance that is provided in accordance with section 2950c does not violate this section.

450.681 Practice of law by corporations and voluntary associations prohibited; exceptions; penalty. Sec. 1. It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney-at-law for any person other than itself in any court in this state or before any judicial body, or to make it a business to practice as an attorney-at-law, for any person other than itself, in any of said courts or to hold itself out to the public as being entitled to practice law, or render or furnish legal services or advice, or to furnish attorneys or counsel or to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume, use or advertise the title of lawyer or attorney, attorney-atlaw, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law, or to furnish legal advice, services or counsel, or to advertise that either alone or together with or by or through any person whether a duly and regularly admitted attorney-at-law, or not, it has, owns, conducts or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation or voluntary association to solicit itself or by or through its officers, agents or employees any claim or demand for the purpose of bringing an action thereon or of representing as attorney-at-law, or for furnishing legal advice, services or counsel to a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding which has been or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil remedy. Any corporation or voluntary association violating the provisions of this section, and every officer, trustee, director, agent or employee of such corporation or voluntary association who directly or indirectly engages in any of the acts herein prohibited or assists such corporation or voluntary association to do Minnesota – M.S.A. § 481.02

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Subd. 8. Penalty; injunction.

(a) Any person or corporation, or officer or employee thereof, violating any of the foregoing provisions shall be guilty of a misdemeanor; and, upon conviction thereof, shall be punished as by statute provided for the punishment of misdemeanors. It shall be the duty of the respective county attorneys in this state to prosecute violations of this section, and the district courts of this state shall have sole original jurisdiction of any such offense under this section.

(b) A county attorney or the attorney general may, in the name of the state of Minnesota, or in the name of the State Board of Law Examiners, proceed by injunction suit against any violator of any of the provisions above set forth to enjoin the doing of any act or acts violating any of said provisions. (c) In addition to the penalties and remedies provided in paragraphs (a) and (b), the public and private penalties and remedies in section 8.31 apply to violations of this section.

Mississippi – Miss. Code Ann. § 73-3-55 It shall be unlawful for any person to engage in the practice of law in this state who has not been licensed according to law. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished in accordance with the provisions of section 97-23-43. Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advice therein, or who shall write or dictate any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title or real estate other than his own or in which he may own an interest, shall be held to be engaged in the practice of law. This section shall not, however, prevent title or abstract of title guaranty companies incorporated under the laws of this state from making abstract or certifying titles to real estate where it acts through some person as agent, authorized under the laws of the State of Mississippi to practice law; nor shall this section prevent any abstract company chartered under the laws of the State of Mississippi with a paid up capital of fifty thousand dollars ($50,000.00) or more from making or certifying to abstracts of title to real estate through the president, secretary or other principal officer of such company.

Missouri – V.A.M.S. 484.020 Any person, association, partnership, limited liability company or corporation who shall violate the foregoing prohibition of this section (unauthorized practice of law) shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine not

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exceeding one hundred dollars and costs of prosecution and shall be subject to be sued for treble the amount which shall have been paid him or it for any service rendered in violation hereof by the person, firm, association, partnership, limited liability company or corporation paying the same within two years from the date the same shall have been paid and if within said time such person, firm, association, partnership, limited liability company or corporation shall neglect and fail to sue for or recover such treble amount, then the state of Missouri shall have the right to and shall sue for such treble amount and recover the same and upon the recovery thereof such treble amount shall be paid into the treasury of the state of Missouri. Montana – M.C.A. 37-61-210 If any person practices law in any court, except a justice's court or a city court, without having received a license as attorney and counselor, he is guilty of a contempt of court.

Nebraska – Neb. Rev. Stat. § 7-101 Except as provided in section 7-101.01, no person shall practice as an attorney or counselor at law, or commence, conduct or defend any action or proceeding to which he is not a party, either by using or subscribing his own name, or the name of any other person, or by drawing pleadings or other papers to be signed and filed by a party, in any court of record of this state, unless he has been previously admitted to the bar by order of the Supreme Court of this state. No such paper shall be received or filed in any action or proceeding unless the same bears the endorsement of some admitted attorney, or is drawn, signed, and presented by a party to the action or proceeding. It is hereby made the duty of the judges of such courts to enforce this prohibition. Any person who shall violate any of the provisions of this section shall be guilty of a Class III misdemeanor, but this section shall not apply to persons admitted to the bar under preexisting laws. Nevada – N.R.S. 7.285 1. A person shall not practice law in this state if the person:

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(a) Is not an active member of the State Bar of Nevada or otherwise authorized to practice law in this state pursuant to the rules of the supreme court; or (b) Is suspended or has been disbarred from membership in the State Bar of Nevada pursuant to the rules of the supreme court. 2. A person who violates any provision of subsection 1 is guilty of: (a) For a first offense within the immediately preceding 7 years, a misdemeanor. (b) For a second offense within the immediately preceding 7 years, a gross misdemeanor. (c) For a third and any subsequent offense within the immediately preceding 7 years, a category E felony and shall be punished as provided in NRS 193.130. 3. The State Bar of Nevada may bring a civil action to secure an injunction and any other appropriate relief against a person who violates this section.

New Hampshire – N.H. Rev. Stat. § 311:7-a Upon the attorney general's own information or upon complaint of any person, including any judge or any organized bar association in this state, the attorney general may maintain an action for injunctive relief in the supreme or superior court against any person who renders, offers to render, or holds himself or herself out as rendering any service which constitutes the unauthorized practice of the law. Any organized bar association in this state may intervene in the action, at any stage of the proceeding, for good cause shown. New Jersey – N.J.S.A. 2C: 21-22

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a. A person is guilty of a disorderly persons offense if the person knowingly engages in the unauthorized practice of law. b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and: (1) Creates or reinforces a false impression that the person is licensed to engage in the practice of law; or (2) Derives a benefit; or (3) In fact causes injury to another. New Mexico – N.M.S.A. 1978, § 36-2-28 If any person shall, without having become duly licensed to practice, or whose licenses to practice shall have expired either by disbarment, failure to pay his license fee or otherwise, practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of an offense under this act, and on conviction thereof be fined not to exceed five hundred dollars, or be imprisoned, for a period not to exceed six months, or both. New York – McKinney’s Judiciary Law § 485 Any person violating the provisions of

sections four hundred seventy-eight (unlawful practice of law), four hundred seventy-nine, four hundred eighty, four hundred eighty-one, four hundred eighty-two, four hundred eighty-three or four hundred eighty-four, shall be guilty of a misdemeanor.

North Carolina – N.C.G.S.A. § 84-8 Any person, corporation, or association of persons violating the provisions of G.S. 84-4 (unauthorized practice of law) to 84-8 shall be guilty of a Class 1 misdemeanor. Provided, that

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G.S. 84-4 to 84-8 shall not apply to any law school or law schools conducting a legal clinic and receiving as their clientage only those persons unable financially to compensate for legal advice or services rendered.

North Dakota – NDCC, 27-11-01 Except as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned, nor may a person be qualified to serve on a court of record unless that person has: 1. Secured from the supreme court a certificate of admission to the bar of this state; and 2. Secured an annual license therefore from the state board of law examiners. Any person who violates this section is guilty of a class A misdemeanor. Ohio – R.C. § 4705.99 Whoever violates division (A)(1) or (2) of section 4705.07 of the Revised Code

is guilty

of a misdemeanor of the first degree.

Oklahoma – LCvR 83.6 Unauthorized Practice. Any person who before admission to the bar of this Court or who during disbarment or suspension exercises any of the privileges bestowed upon members of this bar, or who pretends to be entitled to such privileges, or who otherwise engages in the

unauthorized practice of law before the Court, shall be guilty of contempt of this Court and shall be subject to punishment therefor and shall be subject to any other discipline which the Court may impose. Oregon – O.R.S. § 9.990 1) Any person who violates ORS 9.160 (unauthorized practice of law) shall be fined not more than $500 or imprisoned in the county jail for a period not to exceed six months, or both.

Pennsylvania – 42 Pa.C.S.A. § 2524

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Except as provided in subsection (b), any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at law, counselor, or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with 15 Pa.C.S. Ch. 29 (relating to professional corporations), commits a misdemeanor of the third degree upon a first violation. A second or subsequent violation of this subsection constitutes a misdemeanor of the first degree. Rhode Island – Gen. Laws 1956, § 11-27-14 Any person violating any of the provisions of this chapter shall, upon a first conviction, be imprisoned for a term not exceeding one year, or fined not exceeding five hundred dollars ($500), or both. Any firm, corporation, or other entity violating any of the provisions of this chapter shall, upon a first conviction, be fined not exceeding five hundred dollars ($500). Every person having been convicted of a subsequent offense involving the unauthorized practice of law in this state or in any other jurisdiction shall, for each offense, be imprisoned for a term not exceeding five (5) years, or be fined not exceeding five thousand dollars ($5,000), or both. Every firm, corporation, or other entity having been convicted of a subsequent offense involving the unauthorized practice of law in this state or in any other jurisdiction shall, for each offense, be fined not exceeding five thousand dollars ($5,000). South Carolina – Code 1976 § 40-5-310 No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both. South Dakota – SDCL § 16-16-1 No person, except as provided in § 16-18-2, may practice as an attorney and counselor at law in any court of record within this state, either by using or subscribing his or her own name or the name of any other person, without having previously obtained a license for that purpose from the Supreme Court of this state and having become an active member in good standing of the State Bar of South Dakota. A violation of this section is a Class 1 misdemeanor.

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In South Dakota, a Class I misdemeanor is punishable by one year in jail and $2,000 fine. Tennessee – T.C.A. § 23-3-103 a) No person shall engage in the practice of law or do law business, or both, as defined in § 23-3-101, unless the person has been duly licensed, and while the person's license is in full force and effect, nor shall any association or corporation engage in the practice of the law or do law business, or both. However, nonresident attorneys associated with attorneys in this state in any case pending in Tennessee who do not practice regularly in this state shall be allowed, as a matter of courtesy, to appear in the case in which they may be thus employed without procuring a license, if properly authorized in accordance with applicable rules of court, and when introduced to the court by a member in good standing of the Tennessee bar, if all the courts of the resident state of the nonresident attorney grant a similar courtesy to attorneys licensed in this state.

(b) Any person who violates the prohibition in subsection (a) commits a Class A misdemeanor. Texas – V.T.C.A., Government Code § 81.104 The unauthorized practice of law committee shall: (1) keep the supreme court and the state bar informed with respect to: (A) the unauthorized practice of law by lay persons and lay agencies and the participation of attorneys in that unauthorized practice of law; and (B) methods for the prevention of the unauthorized practice of law; and (2) seek the elimination of the unauthorized practice of law by appropriate actions and methods, including the filing of suits in the name of the committee. Utah – UT Bar Rules for Integr. & Mgmt. Rule 14-111 Such practice, or assumption to act or holding out, by any such unlicensed or disbarred or suspended person shall not constitute a crime, but this prohibition against the practice of law by any such person shall be enforced by such civil action or proceedings, including writ, contempt or injunctive proceedings, as may be necessary and appropriate, which action or which proceedings shall be instituted by the Bar after

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approval by the Board. Vermont – Vermont Rules of Professional Conduct, Rule 5.5, Rule 8.5 No criminal prohibition or defined sanctions A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law

a) Disciplinary Authority.

A lawyer admitted to practice in Vermont is subject to the disciplinary authority of Vermont, regardless of where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both Vermont and another jurisdiction where the lawyer is admitted for the same conduct.

Virginia – Va. Code Ann. § 54.1-3904 Any person who practices law without being authorized or licensed shall be guilty of a Class 1 misdemeanor. A collection agency may refer debts to an attorney for collection with the creditor's approval of the referral and the fee arrangement and shall not be deemed to be engaged in the unauthorized practice of law. An attorney is permitted by the creditor's authorization to enter into such representation agreements. Washington – West's RCWA 2.48.180 Unlawful practice of law is a crime. A single violation of this section is a gross misdemeanor. (b) Each subsequent violation of this section, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to chapter 9A.20 RCW. West Virginia – W. Va. Code, § 30-2-4

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It shall be unlawful for any natural person to practice or appear as an attorney-at-law for another in a court of record in this state, or to make it a business to solicit employment for an attorney, or to furnish an attorney or counsel to render legal services, or to hold himself out to the public as being entitled to practice law, or in any other manner to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law, or in any manner to advertise that he, either alone or together with other persons, has, owns, conducts or maintains a law office, without first having been duly and regularly licensed and admitted to practice law in a court of record of this state, and without having subscribed and taken the oath required by the next preceding section. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars; but this penalty shall not be incurred by any attorney who institutes suits in the circuit courts after obtaining a license, if he shall qualify at the first term thereafter of a circuit court of any county of the circuit in which he resides. Wisconsin – W.S.A. 757.30 1) Every person, who without having first obtained a license to practice law as an attorney of a court of record in this state, as provided by law, practices law within the meaning of sub. (2), or purports to be licensed to practice law as an attorney within the meaning of sub. (3), shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt. Wyoming – W.S.1977 § 33-5-117 It shall be unlawful, and punishable as contempt of court, for any person not a member of the Wyoming state bar to hold himself out or advertise by whatsoever means as an attorney or counselor-at-law.

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amicus brief