Cal. Prac. Guide Prof. Resp. Ch.

1-D
California Practice Guide: Professional Responsibility
Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)
Chapter 1. Law As A Profession
D. Unauthorized Practice Of Law

4. [1:181] Activities Constituting Practice of Law: The following are examples of activities held to constitute
the practice of law:
a. [1:182] Holding self out as attorney: It is the unauthorized practice of law (and a misdemeanor) for a person who
is not an active member of the State Bar (or otherwise authorized to practice law in California by statute or court
rules) to hold himself or herself out as an attorney or entitled to practice law. [See Bus. & Prof.C. 6126(a);
Bluestein v. State Bar (1974) 13 C3d 162, 175, 118 CR 175, 183, fn. 13]
b. [1:183] Appearing on behalf of another in adjudicative proceedings: The practice of law has been repeatedly
defined as doing and performing services on behalf of another in a court of justice in any matter pending therein
throughout its various stages and in conformity with adopted rules of procedure. [See Birbrower, Montalbano,
Condon & Frank, P.C. v. Sup.Ct. (ESQ Business Services, Inc.) (1998) 17 C4th 119, 128, 70 CR2d 304, 308; People
ex rel. Lawyers Institute of San Diego v. Merchants Protective Corp. (1922) 189 C 531, 535, 209 P 363, 365; Baron
v. City of Los Angeles (1970) 2 C3d 535, 542, 86 CR 673, 677]
(1) [1:184] Depositions: Even though a deposition is conducted outside of court, it is considered a court
proceeding. Thus, appearing at a deposition on behalf of another constitutes the practice of law. [Ex Parte McCue
(1930) 211 C 57, 68, 293 P 47, 52]
(a) [1:185] Comparesitting in to assist lawyer: A nonlawyer (e.g., paralegal) who accompanies a State Bar
member to a deposition to provide assistance, under the direct supervision of the lawyer, and who takes no part
in the deposition proceedings (e.g., asking questions or interposing objections) is not engaged in the practice of
law.
(2) [1:186] Administrative proceedings: Appearing on behalf of another in administrative proceedings may
constitute the practice of law: (T)he character of the act, and not the place where it is performed, is the decisive
element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of
law, even if conducted before an administrative board or commission. [Baron v. City of Los Angeles, supra, 2 C3d
at 543, 86 CR at 678; Benninghoff v. Sup.Ct. (State Bar) (2006) 136 CA4th 61, 6869, 38 CR3d 759, 763764
resigned attorney who represented parties in state administrative proceedings engaged in unauthorized practice of
law by analyzing agency disciplinary guidelines, advising clients on how to defend disciplinary charges,
responding to discovery requests, preparing hearing books and declarations, and examining witnesses at hearings]
(a) [1:186.1] Comparestatutory authorization: Certain statutes permit parties to be represented by
nonlawyers in administrative proceedings. See 1:173.6.
[1:186.2] Out-of-state Attorney not licensed in California but admitted to practice before federal courts in
California could not appear (and be compensated) as an attorney in state administrative proceedings. The fact
that the administrative proceedings involved federal law was irrelevant. [Z.A. v. San Bruno Park School Dist.
(9th Cir. 1999) 165 F3d 1273, 12741276]

However, because the statute governing the administrative proceedings permitted appearances by nonlawyer
advisors, Attorney could act as a nonlawyer advisor (but could not recover attorney fees for services rendered;
see discussion at 1:157.5). [Z.A. v. San Bruno Park School Dist., supra, 165 F3d at 12751276; see also
Longval v. Workers Comp. Appeals Board (1996) 51 CA4th 792, 803, 59 CR2d 463, 469out-of-state
attorney not licensed in Calif. could not recover fees for appearing before Workers Compensation Appeals
Board where statute prohibited fee recovery for nonlawyer appearances]
[1:186.3] Reserved.
(b) [1:186.4] Comparepractice before federal agencies: State law cannot regulate or interfere with the
practice of law before federal administrative agencies. [Benninghoff v. Sup.Ct. (State Bar), supra, 136 CA4th at
74, 38 CR3d at 768769attorney licensed in California who resigned during pending disciplinary proceedings
and thus was not entitled to represent parties in state administrative proceedings, was not precluded from
representing federal prisoners seeking prison transfers before U.S. Dept. of Justice]
However, federal law relevant to the practice of law before a federal agency may adopt or incorporate state law
standards and requirements regarding such practice. [Augustine v. Department of Veterans Affairs (Fed. Cir.
2005) 429 F3d 1334, 13401341; see also 1:20]
(3) [1:186.5] Appearing in pleadings: Appearing on behalf of another in the caption of pleadings filed with
the court may constitute the unauthorized practice of law where the filer is not licensed to practice or otherwise
authorized to appear before the court. [See Gentis v. Safeguard Business Systems, Inc. (1998) 60 CA4th 1294,
1308, 71 CR2d 122, 130denying petition for rehearing where attorney not licensed in Calif. was listed in caption
as representing petitioner]
(4) [1:186.6] Compareout-of-state attorney assisting California lawyer in federal court: See 1:180.15.
[1:187] Reserved.
(5) [1:188] Effect of power of attorney: See 1:158 ff.
[1:189194] Reserved.
c. [1:195] Giving legal advice: Giving legal advice and counsel constitutes practicing law, whether or not a case is
pending in any court. [See People ex rel. Lawyers Institute of San Diego v. Merchants Protective Corp. (1922) 189
C 531, 535, 209 P 363, 365]
(1) Application
[1:195.1] By traveling to California to give advice to Client about strategies for resolving a contract dispute
governed by California law, participating in settlement negotiations and assisting in the initiation of arbitration
proceedings related thereto, New York lawyers engaged in the (unauthorized) practice of law in California.
[Birbrower, Montalbano, Condon & Frank, P.C. v. Sup.Ct. (ESQ Business Services, Inc.) (1998) 17 C4th 119,
131, 133134, 70 CR2d 304, 310312]
[1:196] Giving advice regarding the law of a foreign country constitutes the practice of law: Whether a person
gives advice as to (local) law, Federal law, the law of a sister State, or the law of a foreign country, he is giving
legal advice (and thus practicing law within the meaning of Bus. & Prof.C. 6125). [Bluestein v. State Bar
(1974) 13 C3d 162, 174, 118 CR 175, 182 (parentheses in original; internal quotes omitted)]
[1:197] A real estate broker who was not involved in the sale of certain property charged the buyer and seller a
fee for advice as to the type of document to use in securing a loan on the property and for preparing the
document. (The parties were inexperienced in such matters and did not request any particular instrument securing
the loan.) By giving the advice, the broker engaged in the unauthorized practice of law. [People v. Sipper (1943)
61 CA2d Supp. 844, 846847, 142 P2d 960, 962 (overruled on other grounds in Murgia v. Mun.Ct. (1975) 15
C3d 286, 301, 124 CR 204, 214, fn. 11)]
[1:198] An eviction service provider (for landlords seeking to evict tenants) furnished forms for his clients
use and encouraged clients to discuss their specific cases with him. In personal interviews, he provided
information and advice on the clients specific legal problems in evicting tenants (e.g., advising one client that it

was unlawful to turn off the utilities at the rental). The eviction service provider was practicing law: Given
the aura of expertise created by the business practices of (eviction services provider), such advice would
undoubtedly be relied upon by its clients, perhaps to their serious detriment. [People v. Landlords Professional
Services (1989) 215 CA3d 1599, 1609, 264 CR 548, 553 (parentheses added)]
[1:199] A tax accountant was held to be practicing law in advising a client in preparing applications for
carryback adjustments and refund of taxes because strictly legal issues were involved. [Agran v. Shapiro (1954)
127 CA2d Supp. 807, 818819, 273 P2d 619, 626]
(2) [1:200] Comparetax advice: Advice on the tax consequences of a particular transaction may be within the
functions of either an accountant or lawyer because tax law involves both fields.
However, when the issues involve interpretation of law (tax law or general law) or uncertainties as to the
application of law to a particular transaction, the services of a lawyer are required. [Agran v. Shapiro, supra, 127
CA2d Supp. at 819, 273 P2d at 626]
(a) [1:201] IRS recognition not determinative: Federal regulations provide that accountants as well as
attorneys may represent taxpayers in dealings with the Internal Revenue Service. But those regulations do not
determine what constitutes the practice of law; that is a question of state law. [Agran v. Shapiro, supra, 127
CA2d Supp. at 821826, 273 P2d at 628631]
(3) [1:202] Comparefriends giving legal opinions: The argument that giving legal advice is so broad that it
could apply to friends offering opinions on legal matters has been rejected: Our research has found no case in
which one friend was either enjoined from giving legal advice to a friend or prosecuted for the giving of such
advice ... [People v. Landlords Professional Services (1989) 215 CA3d 1599, 1609, 264 CR 548, 554]
d. [1:203] Preparing legal instruments: The preparation of legal instruments and contracts by which legal rights
may be secured, whether or not a case is pending in court, constitutes the practice of law. [People ex rel. Lawyers
Institute of San Diego v. Merchants Protective Corp. (1922) 189 C 531, 535, 209 P 363, 365]
This includes the drawing of agreements, the organization of corporations and preparing papers connected therewith,
and the drafting of legal documents of all kinds, including wills and trusts. [Smallberg v. State Bar (1931) 212 C 113,
119120, 297 P 916, 919; see also Geibel v. State Bar (1938) 11 C2d 412, 422423, 79 P2d 1073, 1078unlicensed
persons drafted benevolent trusts for a fee]
(1) [1:204] Compareacting as scrivener: However, merely filling in blanks on a form selected by the parties or
acting as a scrivener in recording the parties agreement does not constitute the practice of law (see 1:222).
(2) [1:204.1] Compareacting as legal document assistant: Provided statutory registration requirements are
met, nonlawyers may act as legal document assistants. See discussion at 1:227 ff.
(3) [1:204.2] Compareacting as immigration consultant: Subject to carefully prescribed regulations, federal
and state laws permit certain nonlawyers to prepare and file documents for aliens in connection with immigration
matters. See discussion at 1:233.5 ff.
(4) [1:204.3] Compareacting as bankruptcy petition preparer: Under specified circumstances, federal law
also allows nonlawyers, acting in a purely clerical capacity, to prepare a debtors bankruptcy documents for filing.
See 1:234 ff.
e. [1:205] Negotiating and settling claims on behalf of others: Negotiating and settling claims on behalf of others
may amount to the practice of law. [See Howe v. State Bar (1931) 212 C 222, 228229, 298 P 25, 2627persons
licensed as insurance adjusters not authorized to practice law]
(1) [1:206] Personal injury claims: Interviewing injured persons with a view to getting them to sign agreements
authorizing a nonlawyer to control the conduct of whatever negotiations or litigation may ensue, including the right
to settle their claims, constitutes the practice of law. [See Smallberg v. State Bar (1931) 212 C 113, 119120, 297 P
916, 919attorney abetted practice of law by unlicensed persons]
(2) [1:207] Liability insurer settling claim against its insured: Liability insurance policies typically authorize

(and obligate) the insurer to settle or defend claims or suits against the insured for damages covered by the
policy. This does not, however, entitle the insurer to practice law. Where settlement or defense requires a lawyers
services, the insurer must engage the services of competent counsel. [See Merritt v. Reserve Ins. Co. (1973) 34
CA3d 858, 880881, 110 CR 511, 526]
(3) [1:208] Negotiating IRS settlement on behalf of another: Negotiations with the IRS to settle tax liabilities of
another involve the practice of law where the negotiations involve difficult or doubtful legal issues. [Agran v.
Shapiro (1954) 127 CA2d Supp. 807, 812813, 273 P2d 619, 622623]
[1:209] An accountant who spent four days reviewing over 100 cases and cited numerous cases to IRS agent on
a difficult legal issue (carryback of operating losses) was held to be practicing law. [Agran v. Shapiro, supra, 127
CA2d Supp. at 813814, 273 P2d at 623624]
[1:210] But an accountant whose negotiations with the IRS focused strictly on a factual issue (the availability
of reserves), and who neither read nor cited cases to the IRS, was not practicing law. [Zelkin v. Caruso Discount
Corp. (1960) 186 CA2d 802, 806, 9 CR 220, 224]
(4) [1:211] Negotiating with opposing counsel for continuance while under suspension: A suspended attorneys
engaging in negotiations with opposing counsel concerning settlement of a marriage dissolution action and
agreeing that the case be continued to a later date, constitutes the practice of law. [Morgan v. State Bar (1990) 51
C3d 598, 604, 274 CR 8, 10]
(5) Bankruptcy cases
(a) [1:212] Negotiating reaffirmation agreements: The negotiation of a reaffirmation agreement with a debtor
by a law school graduate not licensed in California constitutes the unauthorized practice of law. [In re Carlos
(BC CD CA 1998) 227 BR 535, 539]
Moreover, a law firm that knowingly uses a nonlawyer employee to negotiate reaffirmation agreements with
debtors aids and abets the unauthorized practice of law. [In re Carlos, supra, 227 BR at 539540]
(b) [1:212.1] Preparing bankruptcy petitions: Soliciting financial information from debtors, advising them to
file bankruptcy petitions and assisting them in preparing bankruptcy schedules constitutes the practice of law. [In
re Glad (9th Cir. BAP 1989) 98 BR 976, 978; In re Agyekum (9th Cir. BAP 1998) 225 BR 695, 702]
Compare: Nonlawyer bankruptcy petition preparers may be compensated for preparing bankruptcy petitions
for filing. However, those services are limited to clerical work (essentially, typing). [See 11 USC 110; and
further discussion at 1:234 ff.]
f. [1:213] Serving as private arbitrator, mediator or other dispute resolution neutral: The State Bar takes the
position that acting as a private arbitrator, mediator, referee or other dispute resolution neutral constitutes the practice
of law and hence may not be performed by an inactive State Bar member. This is based on the presumption that
these activities call upon a member to give legal advice or counsel or examine the law or pass upon the legal effect on
[sic] any act, document or law. [See Application for Transfer to Inactive Membership Status, available at
http://calbar.ca. gov/LinkClick.aspx?fileticket=Y3uzheHB8w & tabid= 1476; and State Bar Rule 2.30(B)]
(1) [1:213.1] Compareserving as dispute resolution neutral for court or governmental agency: See
1:222.1.
[1:214] Reserved.
5. [1:215] Activities Not Constituting Practice of Law: The following are examples of activities held not to
constitute the practice of law: