The mix of a recent thread where I asked what prevented people from writing their own prescriptions and some TV shows like Better Call Saul and Suits have made me wonder:
How likely is it that 1) someone who hasn’t passed the Bar/gotten a law degree or 2) a lawyer who was disbarred or let his license lapse could still practice law and not get caught?
I’ve never been asked to prove I was a lawyer. I just said I was while wearing a suit and that seemed good enough. Not from potential employers, potential clients, court employees or other lawyers. The only time I needed to show I had attended law school was when some potential employers asked for a college transcript for an entry level position.
Some disbarred lawyers couldn’t get away with it; Mike Nifong or Jack Thompson are so infamous that they would be recognized quickly enough.
Some areas of the law would be best avoided: High profile cases or some work like real estate deeds where mistakes tend to be pretty black & white and you’re likely to get some complaint for a missed detail at some point.
Surely there have been conmen or formerly licensed lawyers who tried it. We might only know of the ones who got caught.
I can give you one high-profile guy that got caught. How he got caught, I don’t know. How the Air Force didn’t require proof of recertification, I don’t know.
That’d be the only way to track it through–regular review of credentials. If there’s no similar process on the civilian side, then unless someone actively raises the question, it might be pretty darn unlikely.
I was half expecting a “NEED ANSWER FAST!” in the subject line.
I’d suspect that the chances of being caught would be a bit lower for people practicing outside courts (e.g. giving advice, drawing up contracts, writing wills) than for people who are purporting to represent people before a court.
That makes me wonder - if I hire an attorney and bring him to court with me for a case, does he have to somehow positively prove his lawyerness to the court before we can start, or would a question of his attorneyability only come into play if someone made an objection during trial? Does he go to a side office to show his shiny Lawyer Card? If he forgot his, do we get an automatic continuance or would I be forced to represent myself?
There was a “lawyer” in Seattle a few years back, who never passed the bar. As a result of him getting caught, they started requiring that we put our bar number on all pleadings. If you’re not a litigator, I don’t expect you’d get caught too easily. However, most states (maybe all) have on line bar directories where you can quickly find out if someone is a licensed. So, to get away with it, you’d have not never give someone a reason to check.
I have caught an unlicensed practitioner. I rang the office where they keep the register of practitioners to double-check the address of their practice and, lo, they weren’t on the register. Grief ensued for the practitioner concerned.
And, while a lot will depend on the specifics of the regulatory regime in each jurisdiction, I would have thought this kind of thing wouldn’t be unusual. The register of practitioners is a useful point of reference for things like addresses, details of specialist qualifications, etc. And I suspect a good number of the commercial directories are drawing their data from the register. So, if you’re on the register, that will create anomalies that, sooner or later, may attract somebody’s notice.
My state’s online directory is how I found out that the attorney who had drawn up my in-laws’ trust was no longer eligible to practice law (resigned with charges pending) and his law office partner, a relative, had been suspended for shenanigans with client’s money. I found this out after MIL had died and FIL had begun to have dementia along with depression. I got him another trust attorney as quickly as I could, and a good thing too.
My FIL could never accept that he could not talk to the old attorney any more (the old attorney had screwed things up and all communication was handled by the new attorney), no matter how many times I explained that old attorney was not allowed to practice law anymore.
The usual problem is not someone without the necessary certifications, or who has lost the certifications, holding himself out to be a lawyer, but rather the old insurance claims adjuster who decides he knows as much as any of those high toned attorneys and starts ambulance chasing on his own on the representation that he can get the mark more money at less cost than any legitimate lawyer. He usually gets away with it until some adjuster on the other side realizes who is coaching the claimant and locks up forcing the mark to either fish or cut bait, that is, take what ever settlement the insurance company is willing to give or actually go of and hire a real lawyer. As a practical matter there isn’t much that can be done to these rouge insurance adjusters. In many states practice without a license is a minor crime but few prosecutors are willing to pursue an unauthorized practice charge unless the guy is making a real nuisance of himself or crosses the wrong people. The wrong people is usually a judge.
So. . . (and sorry for the slight hijack follks). . . not discussing ‘pro se’ representation, where you represent yourself, but couldn’t one act as an attorney for a relative or business associate? Aren’t there some states that allow non-law degree holding people to speak in a court and “practice”. . . IIRC the term was ‘Country-Trained’ Lawyers (those that read and understood enough of the procedures to the judge’s satisfaction that they could proceed).
There are a few states that still allow what’s called “reading law” or “reading to the bar”, where the state will let you take the bar if, instead of graduating from law school, you apprentice yourself to a lawyer and meet the other requirements. It isn’t common, though. Here’s Virginia’s rules for it:
Kind of off the topic, but I represented a friend in a dispute with her landlord in front of the San Francisco Rent Board. They have provisions for non-attorneys to do this, so it wasn’t a matter of “getting caught.” We won.
Tipler, the pro se litigant is a big pain and a waste of time simply because most of the time he has no knowledge or understanding of what is going on and is armed only with a grievance (which my be legitimate) or/and a sense of entitlement and often has a badly overinflated idea of his capabilities and intelligence. While any one has the right to decline representation and speak for himself, it seldom works out well for the unrepresented.
I don’t know of any court where a claim of a special relationship with a party will allow an unlicensed partner, spouse, parent or what-have-you to play lawyer.
I do know of one case where a gentleman’s son claimed the right to speek for his father because the father had signed a power of attorney naming the son as the father’s attorney-in-fact. After the he was disabused of that idea the father decided to go on unrepresented. The result was that what should have been a half day probate hearing went on for two days.
There is a tendency on the part of too many pro se litigants to confuse trial advocacy and insult comedy.
It depends on what’s at stake. In small claims court, e.g., lawyers usually aren’t even allowed. In other minor matters, does it really work out “better” for the would-be pro se litigant to spend more money hiring an attorney than can possibly be won?
Many administrative tribunals (such as the rent board above mentioned, but also social security appeals, some tax appeals, etc.) have provisions for non-attorneys simply because the cases are often too small to attract attorneys. For example, in my state people turned down for food stamps have the right to an administrative hearing. They may hire an attorney, or they may represent themselves or have a family member or friend help them out. If they are seeking food stamps, they don’t have much money to start with.
Actually at least in Qld and the Federal courts there is no routine check that I’m aware of. You could put on a suit and turn up in court and announce yourself as “Bogus, initial V, solicitor, of Bogus and Shonky lawyers, Your Honour” and you will be taken at your word.
One way or another you will probably be found out, but not through any regular systematic check.
I don’t practice in NSW but I’ve been in their courts and haven’t seen any systematic checking there either. Don’t know about other states.
Guys, makes sense, thank you! Sounds like the majority of the cases/courts I had in mind were small claims or administrative. . . probably not Probate courts or other divisions of County/Superior Courts.
Interesting to know that one can study for the bar exam, and be licensed in places like Virginia. Takes apprenticeship though. . . which probably ain’t cheap neither.
Florida now requires all court documents to be filed online, and you can only get an account if you’re a member of The Florida Bar in good standing. So there’s that. In theory you could continue practicing after a suspension or disbarment because the portal has to be manually checked against the bar rolls.
You can also look up any bar member quite easily. It’s one of the first things I do when I have a case with an unfamiliar opposing attorney (if for no other reason than to make sure the attorney’s contact information is correctly entered into my firm’s system.) I’ve spotted a few who were not in good standing, but usually I let them know before moving to disqualify (mostly it’s because they forgot to pay their bar dues rather than because of a pending disciplinary action.)
Most of the time when people are caught for unauthorized practice of law it’s because their own clients turn them in (or file bar complaints which result in the bar noticing there is nobody licensed under that name.) UPL is a third degree felony here.
We are required to be registered with the relevant provincial law society. Details of all practicing attorneys are maintained on the relevant website, accessible to any member of the public.
Most fake attorneys are caught when a disgruntled client files a complaint (and this will happen eventually) and the law society discovers there is no attorney with that name.
It’s also an offence to practice law without a valid fidelity fund certificate, which protects the public against misappropriation of trust funds in certain circumstances. This may happen if a practitioner does not renew the certificate or if one is refused due to failure to submit the annual audit of the trust account.