Avoiding the Unauthorized Practice of Law William (Bill) Dolan, Esq. Dolan Law LLC 484-508-8582...

Avoiding the Unauthorized Practice of Law

William (Bill) Dolan, Esq.Dolan Law LLC484-508-8582 (office)302-547-3903 (direct)888-547-4414 (fax)[email protected]

Avoiding the Unauthorized Practice of Law1. Introduction

2. Defining the Practice of Law

3. Public Policy Considerations with Respect to the Practice of Law

4. UPL General Examples

5. UPL Accountant/CPA Examples


Avoiding the Unauthorized Practice of Law1. Introduction

a) Corporate and Real Estate Lawyerb) Member of the Pennsylvania UPL Committeec) Goals of this Presentation


Avoiding the Unauthorized Practice of Law2. Defining the Practice of Law

The Supreme Court of Pennsylvania:

“An attempt to formulate a precise definition of the unauthorized practice of law would be more likely to invite criticism than to achieve clarity.”


Avoiding the Unauthorized Practice of Law2. Defining the Practice of Law

The Supreme Court of Pennsylvania:

“[t]hrough patient years of study, [a lawyer] has acquired an understanding of the law and obtained a license to engage in its practice, [and] he applies his knowledge in three principal domains of professional activity:

1. He instructs and advises clients in regard to the law, so that they may properly pursue their affairs and be informed as to their rights and obligations.

2. He prepares for clients documents requiring familiarity with legal principals beyond the ken of the ordinary layman – for example, wills and such contracts as are not of a routine nature.

3. He appears for clients before public tribunals to whom is committed the function of determining rights of life, liberty and property . . . .”


Avoiding the Unauthorized Practice of Law3. Public Policy Considerations with Respect to the Practice of Law

a) Primary goal of restricting the practice of law:

The protection of the public from incompetent, unethical, or irresponsible representation.

Manual Concerning the Unauthorized Practice of Law, Fifth Edition, PBA UPLC:“Lawyers’ training is regulated, their intellectual and moral qualifications are investigated, and their responsibility can be readily enforced by the court, whose officer they are.”


Avoiding the Unauthorized Practice of Law3. Public Policy Considerations with Respect to the Practice of Law

b) How is the practice of law regulated.i. Section 2524 of Title 42 of the Pennsylvania code renders UPL a crime.

A. First offense, third degree misdemeanor.B. Second or subsequent offense, first degree misdemeanor.

ii. Violation of Unfair Trade Practices and Consumer Protection Law.iii. Pennsylvania Bar Association, Unauthorized Practice of Law Committee

A. UPL Committee Independent ActionsB. District AttorneyC. Attorney GeneralD. Professional Agencies

iv. LWPR 8.3 Reporting Misconduct


Avoiding the Unauthorized Practice of Law LWPR Rule 8.3 Reporting Misconduct

Maintaining The Integrity Of The ProfessionRule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.


3. Public Policy Considerations with Respect to the Practice of Lawa) Rule 1.4: Communicationb) Rule 1.6: Confidentiality of Informationc) Rule 1.7: Conflict of Interest: Current Clientsd) Rule 5.4: Professional Independence of a Lawyere) Rule 7.4: Communication of Fields of Practice and Specializationf) Rule 7.5: Firm Names and Letterheads



Avoiding the Unauthorized Practice of Law4. UPL General Examples

a) Legal document preparation:i. Some specific examples are:

A. Power of attorney forms.B. Immigration paperwork (with a narrow exception).C. Separation/marriage termination agreements.D. Will and trusts.E. Articles of incorporation, organization, and merger.F. Operating agreement and bylaws.


Avoiding the Unauthorized Practice of Law4. UPL General Examples

b) Public Representation of Clients:i. Appearing before zoning boards and governing bodies of municipalities in connection with land

use applications. ii. Appearing with a debtor at his or her 341 meeting of creditors. iii. Representation of corporations by non-attorney officers in a court proceeding. iv. Representing a client at a real estate settlement. v. Administrative and court appearances generally.





a) Tax Appeals

i. Counseling, preparation and filing of real estate tax assessment appeal forms, and appearance before a county board of assessment.

A. Power-of-attorney does not cloak a layperson with the power to act as an attorney-at-law.

b) Probatei. Preparation and filing of petitions for probate and other documents relating to a decedent’s

estate with the Register of Wills and the Clerk of the Orphans Court and otherwise assisting personal representatives with the administration of decedent’s estates.

A. Preparing an inheritance tax return without the advice and direction of counsel for the personal representative.




c) Associations

i. Forming associations (including but not limited to corporations, partnerships, limited liability companies, business trusts, and limited liability partnerships.

ii. Advertising such formations.

iii. Advising on the type of entity beyond tax and accounting issues. “Tax and accounting issues comprise only a small portion of the total overall analysis

required to determine the type of organization that is best suited for the particular client under the particular set of circumstances.

iv. Issues surrounding association formations.

Avoiding the Unauthorized Practice of Lawiv. Issues surrounding association formations.

A. Piercing the Corporate Veil


Avoiding the Unauthorized Practice of Lawiv. Issues surrounding association formations.

B. Breach of Fiduciary Duties1. Who owes fiduciary duties and to whom, generally?

a. A fiduciary duty exists in “a situation where one person reposes special trust in and reliance on the judgment of another or where a special duty exists on the part of one person to protect the interests of another.”

1) Officers to the company and to shareholders.2) Directors to the company and to shareholders3) Controlling shareholder to minority shareholders.4) Partners of a partnership to other partners.5) Members of an LLC to the company and other members. 6) Manager of an LLC to the company and the members.

2. What duties are owed?a. Duty of Care

1) Duty of Good Faithb. Duty of Loyalty


iv. Issues surrounding association formations.B. Breach of Fiduciary Duties

William (Bill) Dolan, Esq.Dolan Law LLC484-508-8582 (office)302-547-3903 (direct)888-547-4414 (fax)[email protected] the Unauthorized Practice of Law

iv. Issues surrounding association formations.C. Hypothetical Situation

Jon and Bev decide to make a movie.


A potential investor says he’s in if the business is taxed as a partnership. They call their accountant for advice on setting up the business. Their accountant gives them the following advice:

1) LLCs have a flexible a) taxation structure and can be taxed as a partnership or a corporation; andb) ownership structure;

2) LLCs afford the parties wide latitude in setting out the rights and obligations of the parties; and3) LLCs provide liability protection for the business owner like a shareholder in a corporation.

UPL


Jon and Bev love the LLC idea, so the accountant forms the entity (Picture LLC) and has the corporate kit sent directly to Jon and Bev, who upon receipt immediately place it on Jon’s bookshelf with his other corporate documents.

UPL

Corporate Formalities – PCV Factor.

Jon and Bev need more money, so they decide to start pitching potential investors for capital.

Securities Violations – Fraud – PCV Factor.


Jon and Bev find that the movie business is tougher than they thought, so they want to generate some cash flow, so they can make some money for their time and effort. Luckily, they have a friend at Budweiser, who convinces the head of marketing to make a $100,000 product placement deal with Picture LLC to have Budweiser beer in the movie. Ecstatic, Jon uses his $50,000 to put a deposit down on a new car. Bev puts a big dent into her husband’s gambling debts with her half.

Duty of Loyalty – Breach of Fiduciary Duty.


While doing her grocery shopping at Target, Bev learns that her Target card is maxed out. Unshaken by the embarrassment of her card denial, Bev pulls out her Picture LLC Master Card and completes her purchase with confidence.

Co-Mingling Assets and Liabilities – PCV Factor.

With insufficient capital to complete the film due to some unpredicted expenses, Jon and Bev decide to trim the production budget. By allowing Picture LLC to self-insure, they save twenty thousand dollars in overhead while preserving the creative integrity of the picture. On top of the world, Jon and Bev spring for an all expenses paid trip for them and their families to go to Caesars’ in Atlantic City, on Picture LLC.

Undercapitalization – PCV Factor.

Co-Mingling Assets and Liabilities – PCV Factor.


Bob, the second assistant director tripped on some loose wires that, contrary to custom, were not affixed to the floor. Sadly, Bob landed on several glass bottles of Budweiser, which tore up his hands and will prevent him from ever playing professional badminton. With no other option, Bob sues Picture LLC for negligence. Unfortunately, Bev’s husband went on a bender while they were in Atlantic City and disappeared for three days with Picture LLC’s debit card, leaving the bank account drained. So, Picture LLC has no money (or insurance coverage) to compensate Bob.

Undercapitalization – PCV Factor

Negligence – No Assets – Fraud – PCV Factor.


Since the Atlantic City trip left Picture LLC with no money to pay for food service, Jon asks Pizza Brother’s, Inc., the business he uses to cater his other company’s events, to bring a food cart to the set. Pizza Brother’s, Inc. requests payment in advance in accordance with its normal business practices for a new customer. Jon tells the sales person that “it’s all one and the same. It’s all under me.”

Identity Confusion – PCV Factor

Holding Out – Personal Guaranty or Guaranty by Other Company – General Liability by

Contract.


Avoiding the Unauthorized Practice of Law William (Bill) Dolan, Esq. Dolan Law LLC 484-508-8582...

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