By Jessica Park and Andrew Servais
The California State Bar recently seized the client files of Efferin Deans, a man with a 25-year history of impersonating attorneys and two prior convictions of identity theft.[1] On Oct. 27, 2021, a criminal complaint was filed in Los Angeles County naming Efferin Deans and twenty-two aliases that Deans utilized to impersonate a lawyer and appear on the record as a licensed attorney for family law and personal injury cases from January 2019 to September 2021 (See People v. Deans, Los Angeles County Superior Court,Case No: BA499952).
While Efferin Deans’ case provides an egregious example of the unauthorized practice of law, there are plenty of pitfalls that attorneys or attorneys who supervise others have encountered, particularly in circumstances involving out-of-state attorneys and paralegals. Attorneys and non-attorneys should, therefore, take heed of what constitutes the “practice of law.”
OUT OF STATE ATTORNEYS
Rule 5.5 of the California Rules of Professional Conduct states that a lawyer who is admitted to practice law in California shall not practice law in a jurisdiction where doing so would violate regulations in that jurisdiction; and similarly, lawyers who are not admitted in California shall not, except as authorized by rules or law, maintain a continuous presence in California or represent themselves as someone admitted to practice law in California.
The practice of law can become an issue for out-of-state attorneys who may try and perform services for California clients. California Business and Professions Code section 6125 does not define the “practice of law,” but case law has generally understood and defined it to mean “doing and performing services in a court of justice in any manner depending therein throughout its various stages and in conformity with the adopted rules of procedure,” although it extends to work out of court as well.[2] The “practice of law” can also be incidental to another occupation, such as when a tax accountant gives legal advice incidental to preparation of a tax return.[3]
Determining whether an out-of-state attorney has practiced law “in California” in violation of Business & Profession Code section 6125 depends on “whether the lawyer engaged in sufficient activities in the state, or creating a continuing relationship with the California client that included legal duties and obligations.”[4] The New York law firm in the case Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court violated Business and Professions Code section 6125 when it handled contractual negotiations governed by California law, filed an arbitration demand, and interviewed potential arbitrations in California for a California based client.
PERMITTED AND PROHIBITED ACTIVITIES OF PARALEGALS
Paralegals are integral to the practice of law, and are permitted to perform legal services (under the supervision of attorneys) like case planning, legal research, client interviews, drafting legal documents, and representing clients in administrative agency hearings if permitted by statute, rule, or regulation.[5] Paralegals may not be contracted or employed by a non-attorney to perform legal services, represent a client in court, or provide legal advice.[6]
Attorneys should keep in mind their duties under Rules of Professional Conduct 5.1 of making reasonable efforts to ensure that those they supervise are in compliance with the Rules of Professional Conduct and the State Bar Act. As outlined in Rule 5.3, this standard extends to supervision of nonlawyer personnel such as paralegals and law clerks, in that a lawyer must provide “appropriate instruction and supervision concerning all ethical aspects of their employment” and that measures should “take account of the fact that they might not have legal training.”[7]
ERA OF PARAPROFESSIONALS
Alas, folks like Efferin Deans could have been a bit more patient. California may become one of a few jurisdictions which permit “nonlawyer paraprofessionals” to provide legal advice or handle tasks that were only handled by attorneys previously. On Sept. 23, 2021, the State Bar’s Paraprofessional Program Working Group recommended the creation of a pilot paraprofessional licensing program that would also implicate its own rules of professional conduct and disciplinary measures for misconduct.[8] This is all part of an initiative to provide more access to civil legal services for those who may not be able to afford the rates of attorneys. According to this proposal, family law, housing, consumer debt, employment/income maintenance, and collateral criminal would be among the practice areas in which the paraprofessionals could work, according to the proposal. The paraprofessionals also would be able to have minority ownership interests in law firms.
California would not be the first to launch such a program, as several states, including Arizona and Washington, have such programs. Public comments and proposals can be submitted to the Working Group[9] and are due by January 12.
[1] Law 360, California State Bar Halts Phony LA Attorney with 22 Aliases, November 19, 2021, https://www.law360.com/pulse/articles/1442327/calif-state-bar-halts-phony-la-attorney-with-22-aliases.
[2] Birbrower, Montalbano, Condon & Frank, P.C. v. Sup. Ct. (1998) 17 Cal.4th 119, 128.
[3] Agran v. Shapiro (1954) 127 Cal.App.2d Supp. 807, 813.
[4] Birbrower, Montalbano, Condon & Frank, P.C. v. Sup. Ct. (1998) 17 Cal.4th 119, 128-29.
[5] California Business & Professions Code section 6450(a).
[6] California Business & Professions Code section 6450(b)(1)-(8).
[7] Comments for Rule 5.3, “Responsibilities Regarding Nonlawyer Assistants.”
[8] State Bar of California, California Paraprofessional Program Working Group, “Report and Recommendations,” https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/CPPWG-Report-to-BOT.pdf.
[9] State Bar of California, Paraprofessional Working Group, Public Comment Page, https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2022-Public-Comment/California-Paraprofessional-Program-Recommendations