Vol. 39 No. 8
By Mary Dunnewold
Mary Dunnewold is a legal writing instructor at Hamline University School of Law.
At your family Thanksgiving dinner, that first bite of turkey is just about to enter your mouth when Uncle Charlie turns to you and says, “I think my business partner has gone crazy. I’m sure she’s stealing money from the company. Your parents are paying big bucks to put you through law school—so help me out here. Can I sue her?”
Or, your neighbor appears at your door one night, clutching a stack of papers. He says, “My divorce is supposed to be final this week. Because you’re in law school, could you take a look at these divorce papers my ex sent me and tell me if they’re okay? I can’t afford a lawyer.”
What’s a law student to do?
Every jurisdiction has laws prohibiting the unauthorized practice of law (UPL), essentially restricting the practice of law to lawyers licensed by the state. If you are a law student, you are in the same category as anyone else who has not passed the bar and been admitted to practice. You are not a lawyer, despite the knowledge you are accumulating in school. Consequently, you should avoid giving legal advice.
The Governing Rules. While states uniformly have laws prohibiting UPL, not all jurisdictions agree on a definition of “practicing law.” In 2003, an ABA Task Force on the Model Definition of the Practice of Law recommended that each state adopt its own definition, based on the premise that “the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.” From this starting point, states have generally defined the “practice of law” as including the following activities: giving advice about legal rights or responsibilities, preparing legal documents, representing another in court (or the equivalent), and negotiating legal rights or obligations on behalf of another. Many state UPL statutes also prohibit nonlawyers from “holding themselves out as competent” to give legal advice.
Most jurisdictions also have rules governing student practice, allowing students to provide assistance to licensed lawyers and to appear in court in limited circumstances. For instance, Illinois Supreme Court Rule 711 allows a “supervised senior law student” to advise clients, appear in court (with some qualifications), and prepare legal documents, as long as the client consents. The key to authorized student practice, however, is the word “supervised.” So while the rule permits working in a law school clinic taught by a licensed lawyer, it does not authorize doling out advice around the dinner table.
Basic Professionalism Requirements. While most UPL statutes actually prohibit the practice of law by nonlawyers for compensation, the prudent law student will avoid both representing herself as competent to give legal advice and actually giving legal advice, even without compensation, for several reasons. First, law students are not in fact fully formed lawyers yet, and they risk hurting people by giving bad advice. As pointed out by Ursula Furi-Perry, a student ethics expert and author of Your First Year as a Lawyer Revealed, “Bars don’t look favorably on this conduct. The issue is that a person may rely on your word and do something that affects his or her legal rights. Then you’ll be in hot water.” Indeed, most UPL statutes endeavor to protect the public from bad legal advice and incompetent representation. Law students should recognize their own limitations and respect the principle behind UPL statutes.
Second, ABA Model Rule of Professional Conduct 1.1 states that “a lawyer shall provide competent representation to a client.” While the Rules of Professional Conduct technically apply only to licensed lawyers, law students should strive to act within the Rules from the moment they enter law school. Thus, students should avoid the risk of acting incompetently by giving incorrect legal advice, whether or not they are being paid for it.
Solutions. According to Judith Rush, chair of the Minnesota Board of Lawyers Professional Responsibility, the key to handling requests for legal advice lies in having a standard answer ready before the situation arises. While at some points in law school, you may feel swamped by esoteric legal doctrine, Rush suggests “you probably don’t want to say, ‘they don’t teach us anything practical in law school, so don’t ask me.’” This response is not particularly professional and would reflect badly on both you and your law school. Rush also advises that you should avoid any answer that begins with “I am not a lawyer, but . . .” Prefacing legal advice with “I am not a lawyer, but . . .”, a phrase so commonly used on the Internet that it has its own Wikipedia entry and acronym (IANAL), does not in fact relieve you of the responsibility to act in a competent and professional way.
Instead, be truthful and direct, and be ready to explain. For instance, you might say, “I am technically not a lawyer, so I’m not allowed to give legal advice. Besides, I wouldn’t want to mislead you with incorrect information. You may want to consult a licensed attorney.” You may even want to interject some mild humor to temper your response. For instance you could say, “Sorry, I can’t help you with that. I am not a lawyer yet. I may be able to help you in a few years, but you probably don’t want to wait that long.” Another option would be “I can only give legal advice when I’m supervised by a licensed attorney. Since Professor X wasn’t invited today, I can’t really help you.” But even a simple “Sorry, I’m off duty right now” will probably work.
If you are inclined to be helpful, you can study up on lawyer referral networks in your jurisdiction and be prepared to offer contact information if the requestor is seriously asking for assistance. For the neighbor who needs help with his divorce, you might also want to know the eligibility requirements for legal aid in your area and know how to contact legal aid offices.
Having standard responses to requests for legal advice will also prepare you for similar issues that arise once you are admitted to practice. Most lawyers in practice today are not competent in all areas of practice. For instance, the family law attorney is probably not competent to give advice on a complex corporate merger and acquisition, just as the merger and acquisitions lawyer probably knows nothing about child custody. Thus, as a practicing attorney, you need to be prepared to say, “I don’t practice in that area, but I can refer you to Ms. Y, who does.” When asked the inevitable legal question at a social gathering, you also need to be ready with “Here’s my card. Why don’t you call my assistant and make an appointment on Monday so I can really give your problem my full attention.”
You should also be aware that giving legal advice in informal situations raises other issues, even once you are a licensed lawyer. Most states prohibit anyone who is not licensed to practice by that state from practicing law within the state. Thus, if you live in and are licensed only in New Jersey, but you are visiting Florida, where your cousin buys you dinner in exchange for advice about his divorce, you may violate Florida’s UPL statute. And unless you know the difference between Florida’s divorce laws and New Jersey’s, you may also violate the requirement of Rule 1.1 of the Rules of Professional Conduct that you act competently.
For More Information. If you are interested in reading up on the Student Practice Rules in your jurisdiction, visit the Georgetown Law Library Clinical Research Guide on Student Practice Rules. This site sets out the Student Practice Rules for every federal district and all 50 states. If you are interested in seeing your state’s definition of the practice of law, visit the ABA Center for Professional Responsibility. In any case, be cautious about giving legal advice while you’re still a student. Sometimes the best professional practice is to decline to help or to refer to a licensed lawyer who is fully competent to help.