Avoiding Unauthorized Practice of Law as a Worker Advocate
by Rachel van Geenhoven and Jora Trang
Worksafe is part of the Coalition of Low-Wage and Immigrant Worker Advocates (CLIWA), and we attended the recent annual retreat, which included many important discussions about the intersection between legal aid and worker advocacy. Unsurprisingly, the question of unauthorized practice of law came up, namely: what constitutes unauthorized practice of law?
The regulation against it is designed to prevent the unscrupulous and unauthorized from giving bad legal advice and taking people’s money. Unfortunately, employer groups sometimes wield it against advocates who are helping their workers fight exploitation.
The important distinction that non-legal advocates should keep in mind is the difference between providing “legal information” and providing “legal advice.” Here are some important things to keep in mind for non-legal advocates to avoid slipping into the unauthorized practice of law while helping workers.
Although there is no bright line rule about what defines the ”practice of law,” a survey of guidelines, laws, regulations, and caselaw reveals:
- Advertising or providing legal services
- Giving advice on legal rights
- Selecting or drafting legal documents
- Providing legal representation before an adjudicative body
- Negotiating legal rights for somebody else (i.e. settlement)
- Writing persuasive “demand” letters that apply the law to the facts
Here is what you CAN do when talking to workers about their legal situation and rights:
- Educate them about the facts of the laws and the legal process
- Explain laws, regulations, standards, and legal procedures
- Tell them how to bring an issue to court
- Give them info on a court or state agency self-help website
- Tell them their options and the steps to carry out an option
- Give them information about how past cases have gone
- Share citations or copies of caselaw, statutes, court rules, and ordinances
- Offer general referrals to other organizations
- Provide forms & instructions, and record info given by the person on the form
- Check their forms for completeness and point out non-legal problems and how to fix them
- Help them figure out deadlines
And here are some instances of things that may constitute unauthorized practice of law:
- Give them legal advice about the course of action they should take; guide or direct them
- Answer questions about whether they should/should not take a legal action
- Suggest or offer an opinion about what procedure or process to take, talk about what you would do, what’s a good idea vs. what’s a bad idea, how best to present an issue to a court/agency
- Suggest which option to pursue
- Predict how a judge/agency may decide
- Give an analysis or interpretation of laws, rules, regulations, or ordinances based on the specific facts of someone’s case
- Recommend specific attorneys (instead: send them to State Bar lawyer referral program)
- Draft the wording on the forms for them
- Point out legal problems and how to fix them legally
- Help someone figure out the timing involved in their issue such as the statute of limitations on filing a complaint
It does seem like a very fine line in some places–and one thing you can do to help protect yourself and your organization is to have them sign a legal disclaimer. Be sure to let folks know throughout your engagement with them that you are NOT a lawyer and none of what you say should be taken as legal advice.
