Unauthorized Practice of Law by US Attorneys

Unauthorized Practice of Law by US Attorneys

With so many “attorneys” offering their services, one must wonder which ones are working and operating legally and which are not.

Obviously your safest bet as a consumer for issues in Mexico and Mexican law is to hire an attorney who has their studies here in Mexico and their professional cedula which can be verified online as well as has membership in a bar association with membership standards and requirements and mandatory continuing education.  

What about attorneys from the US who are not Mexican attorneys and practice in Mexico?
Let´s look at this from another perspective and see how a US State, such as California applies their unauthorized practice of law statute and what is the opinion of the State Bar with regards to people calling themselves attorneys working in jurisdictions where they are not licensed to practice.  How would a Mexican attorney be viewed working in the US?  By looking at US standards we can see how these local attorneys should be acting and which rules and procedures they should adhere to.

“Giving advice regarding the law of a foreign country constitutes the practice of law. A person who gives advice as to local law, federal law, the law of a sister state, or the law of a foreign country, is GIVING LEGAL ADVICE!” (The lawyer from Mexico therefore is practicing law. Bus. & Prof.C. §6125; Bluestein v. State Bar (1974) 13 Cal.3d 162, 174. Aiding the conduct is a violation of CRPC 1-300(A) by the supervising attorney.)

The lawyer from Mexico should be advised to never, either orally or in writing, give advice to clients until admitted,”

In California there are penalties for the unauthorized practice of law as well as the attorneys that help them who can  be charged with aiding and abetting the unauthorized practice of law in violation of rule 1-300(A), Rules of Professional Conduct (CRPC). They’d also be condemning innocent associates and out-of-state lawyers to potential admission delay or denial for engaging in the unauthorized practice of law in violation of Business and Professions Code §6125.”

“Or for holding out that they were entitled to practice law in California in violation of §6126(a),” “Section 6126(a) also provides potential criminal exposure for violating these statutes:
“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.”

I understand that in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 128-129, the California Supreme Court held that an attorney, not physically present in California, can virtually be ‘in California’ by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer or other modern technological means,”
“Birbrower observed that there is no statutory exception to §6125 which allows out-of-state attorneys to practice law in California as long as they associate local counsel in good standing with the State Bar, except by pro hac vice admission.” (Id., at p. 126, fn. 3; Cal.Rls. Ct. 9.40.)

“Negotiating and settling claims on behalf of others may amount to the practice of law. If a law firm is retained for a matter that includes the negotiation of a contract or other agreement on behalf of a client, this conduct constitutes the practice of law. Therefore, an attorney may not delegate such functions to a non-attorney.” (In re Carlos (Bkrtcy.C.D.Cal. 1998) 227 B.R. 535, 538-539.)
There is no statutory exception to §6125 which allows out-of-state attorneys to practice law in California as long as they associate local counsel in good standing with the State Bar, except by pro hac vice admission.” (Id., at p. 126, fn. 3; Cal.Rls. Ct. 9.40.)

“Under California law, the practice of law includes the preparation of contracts and other documents that secure legal rights, whether the matter is pending in court or not. Preparation of stipulations and releases constitutes the practice of law. (In re Garcia (9th Cir.BAP 2005) 335 B.R. 717, 728.) Without your direct review and authorization of the documents, you are aiding the unauthorized practice of law (CRPC 1-300(A) and your non-admitted associate is engaging in the unauthorized practice of law. (Bus. & Prof. §6125.)”

“The courts have observed that a document’s complexity is not dispositive as to whether their drafting is properly within the sphere of legal services, since the preparation of any legal document that secures legal rights is considered practicing law,”

So an attorney would be safest to not to give advice or consultations for issues outside their state or jurisdiction where they are licensed, so a Nebraska attorney should stick to Nebraska law and not try Mexican law nor Nevada law.  

Some good steps would be
First, any designation of the non-admitted associate in business cards, letterhead, Web sites, announcements or any other written designations should indicate that the associate is not admitted to practice in Mexico. This will ensure that the firm does not hold the person out as entitled to practice law in violation of the law.

Second, if the associates meet with clients, in person or by telephone, the clients should be told that the associate is not admitted and is not entitled to practice law yet. This, too, will clarify for clients that the person is not a lawyer and not entitled to practice law.

There are laws in Mexico, I am trying to make an analogy, supposedly US attorneys are bound by their home states professional rules which are similar to California and which they may violate. Here in Mexico they have the same law




ARTICULO 170. SE IMPONDRAN DE UN MES A TRES AÑOS DE PRISION Y MULTA DE CIEN A TRESCIENTOS DIAS DE SALARIO MINIMO:

I. AL QUE, SIN SER SERVIDOR PUBLICO, SE ATRIBUYA ESE CARACTER E INTENTE EJERCER ALGUNA DE LAS FUNCIONES CORRESPONDIENTES;

II. AL QUE, SIN TENER TITULO PROFESIONAL O AUTORIZACION PARA EJERCER ALGUNA PROFESION REGLAMENTADA, EXPEDIDOS POR AUTORIDAD Y ORGANISMOS LEGALMENTE CAPACITADOS PARA ELLO, CONFORME A LAS DISPOSICIONES REGLAMENTARIAS DEL ARTICULO 5o. DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, INCURRA EN CUALQUIERA DE LOS CASOS SIGUIENTES:

A). SE ATRIBUYA EL CARACTER DE PROFESIONISTA;

B). REALICE ACTOS PROPIOS DE UNA ACTIVIDAD PROFESIONAL;

C). OFREZCA PUBLICAMENTE SUS SERVICIOS COMO PROFESIONISTA; Y

D). USE UN TITULO O AUTORIZACION PARA EJERCER ALGUNA ACTIVIDAD PROFESIONAL, SIN TENER DERECHO A ELLO; Y