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Unauthorized Practice

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The performance of professional services, such as the rendering of medical treatment or legal assistance, by a person who is not licensed by the state to do so.

The unauthorized practice of a profession is prohibited by state laws. Violators of these laws are generally subject to criminal sanctions, but what constitutes unauthorized practice is constantly changing and is the subject of dispute. For example, persons opposed to laws that ban the unauthorized PRACTICE OF LAW argue that the legal profession uses these statutes to maintain a MONOPOLY over legal services, many of which can be performed by nonlawyers.

The professions have sought the enactment of unauthorized practice statutes in part to protect the public from persons who are not trained to give professional assistance and who may give substandard treatment. The elements of a profession include a rigorous course of training, the certification of competency by a professional society or state agency, state licensure, and an obligation to follow a code of ethics. Based on these elements, the professions and most state legislatures believe that the public interest is best served by restricting the performance of medical, legal, and other services to the members of their respective professions.

The unauthorized practice of law has become a matter of public debate. Nonlawyers can read laws, interpret laws, draft documents, and proceed in legal matters on their own behalf, but in most states they cannot draft documents for others, give specific legal advice, or appear in court for another person. Nevertheless, most states allow nonlawyers to sell legal forms and general instructions and offer typing services for completing legal documents. Those critical of lawyers contend that nonlawyers should be permitted to draft simple legal documents because they can provide their services at a considerably lower price than an attorney.

The existence of statutes prohibiting the unauthorized practice of law does not guarantee that those statutes will be enforced, an issue that is a concern to the legal profession. Enforcement is difficult both because proof of the unauthorized practice of law is difficult to obtain and because many prosecutors place a low priority on pursuing these violations.

In 1998, Nolo Press, a Berkeley, California, publisher of popular legal SELF-HELP books, found itself the target of the Texas Unauthorized Practice of Law (UPL) committee. This committee, a subcommittee of the Texas Supreme Court, claimed that Nolo's products put individuals at risk because consumers saw Nolo as a legitimate and "official" legal resource. Nolo contended that it was in no way representing itself as a substitute for actual legal advice. The company's goal was to provide legal information to consumers in plain English, thus allowing them to decide whether to seek further advice or handle their legal problems themselves. Nolo sued the UPL, claiming among other things, that the committee's attempt to bar Nolo publications was in violation of the FIRST AMENDMENT. Nolo was joined in the suit by the Texas Library Association and the American Association of Law Librarians. Numerous organizations criticized the UPL committee's action, including many Nolo customers. In June 1999, the Texas State Legislature passed HB 1507, which exempts self-help legal materials, such as Nolo's, from UPL prosecution as long as the materials contain disclaimers that they do not constitute actual legal advice. (Nolo's products had carried such disclaimers for many years). The case against Nolo was officially dropped on September 21, 1999.

A person who has been harmed by relying on the advice of someone not authorized to practice a profession may sue that person in a tort action for damages sustained.

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