This outline considers the meaning of the term "practice of law," and its implications for mediation by non-lawyers, particularly when litigants or potential litigants appear pro se. It then offers some practical suggestions regarding measures which might be taken by a non-lawyer mediator to minimize the risk of allegations of the unauthorized practice of law.
Definition under V.T.C.A., Government Code Sec. 81.101
(a) In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
(b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law.
Authority to practice law under V.T.C.A., Government Code Sec. 81.101
(a) Except as provided by Subsection (b), a person may not practice law in this state unless the person is a member of the state bar.
(b) The supreme court may promulgate rules prescribing the procedure for limited practice of law by:
(1) attorneys licensed in another jurisdiction;
(2) bona fide law students; and
(3) unlicensed graduate students who are attending or have attended a law school approved by the supreme court.
Why is this the rule?
In Magaha v. Holmes, 886 S.W.2d 447 (Ct. App, Houston 1st, 1994), the court describes the reason for the rule as follows:
"Strong public policy considerations support our disallowance of Elissa Magaha's representation of the relator: The controlling purpose of all laws, rules, and decisions forbidding unlicensed persons to practice law is to protect the public against persons inexperienced and unlearned in legal matters from attempting to perform legal services. The objective is to protect the public against injury from acts or services, professional in nature, deemed by both the legislature and the courts to be the practice of law, done or performed by those not deemed by law to be qualified to perform them. Brown v. Unauthorized Practice of Law Comm., 742 S.W.2d 34, 41-42 [**3] (Tex. App.-Dallas 1987, writ denied) (citations omitted) (considering Tex. Rev. Civ. Stat. Ann. art. 320a-1, 19(a) (Vernon Supp. 1987), since repealed, whose subject matter is now addressed in section 81.101). The legislature's mandate against laymen practicing law is in the interest of the public welfare; it is for the public's benefit and protection."
Brown v. Unauthorized Practice Of Law Committee, 742 S.W.2d 34 (Ct. App, Dallas, 1987)
"The record reflects the following undisputed facts. Ron Brown conducted a business in which he entered contracts with individuals to represent them in resolving their personal injury and/or property damage claims on a contingent fee basis. Prior to April 1986, Brown used a form contract that provided that Brown, as agent, was authorized to effect a settlement or compromise of the client's claim, subject to client approval, or to assist the client in retaining legal counsel. The contract further provided that if legal counsel was not obtained, Brown would get one-third of the amount paid to settle his client's claim, but he would receive forty percent of any amount received after obtaining counsel to file suit and he would pay the attorney's fee from his portion. Brown also reserved the right to select legal counsel."
Fadia v. Unauthorized Practice Of Law Committee, 830 S.W.2d 162, (Ct. App, Dallas, 1992)
Vijay Fadia owns and operates County Homestead Service Agency in Torrance, California. He publishes a will manual entitled "You and Your Will: A Do-It- Yourself Manual" that he distributes in several states, including Texas. Fadia is not a licensed attorney in any state and has not attended law school. Fadia admits that no Texas attorney has reviewed or updated the book. He sold approximately 200 manuals in Texas for $24.95 each.
Fadia's will manual contains information on how to prepare a will. The manual covers topics such as executors, legal guardians, holographic wills, joint wills, simultaneous death provisions, incontestability clauses, specific bequests, community property, and pourover wills. The will manual also includes "fill-in-the-blank forms" for specific situations and several documents he calls "statutory" will forms from other states. ***
"The selling of legal advice is the practice of law. Fadia sold his advice for $24.95. Cf. Cortez, 692 S.W.2d at 50. The State Bar has not only the right but also the obligation to prevent legal advice clothed in the robes of simplicity from adversely affecting the estates of the unsuspecting public. Because a nonlawyer cannot and should not give advice to any other person on the drafting and executing of wills, we conclude that Fadia's publication and distribution of his will manual constitutes the practice of law."
Rattikin Title Company v. Grievance Committee Of The State Bar Of Texas, 272 S.W.2d 948, (Civ. App., Fort Worth, 1954)
"...where title company prepared legal instruments for persons and corporations other than itself and its principal in transactions whereby it neither had nor acquired any interest in the subject matter of the transaction, and also gave advice or made statements to persons other than its principal and its employees as to purpose and effect of legal instruments in transactions to which neither title company for its principal was a party, title company was engaged in the illegal practice of law and such activity would be restrained by temporary injunction.
"In the present instance, such interrelated activity by intermingled personnel resulted, as disclosed by the record, in the Rattikin Title Company (though its employees) performing acts which constituted the practice of law, to-wit: preparing legal instruments for persons and corporations other than itself and its principal in transactions whereby it neither had nor acquired any interest in the subject matter of the transaction,-and also resulted in it (through its employees) giving advice or making statements to persons other than its principal and its employees as to the purpose and effect of legal instruments in transactions to which neither the Title Company nor its principal was a party. These very acts on the part of the Title Company's employees constituted the unauthorized and illegal practice of law by the Title Company, and the trial court properly enjoined their continuance. "
Representation of other parties to transaction does not cure the unauthorized practice of law (the ÒadjusterÓ in the Brown case was at times dealing with lawyers in settling the claims of his clients.
Use of publications does not cure, if in fact advice.
Lawyers performing the work for non-lawyer entities providing the services does not cure.
Although technically I suggest that the involvement of lawyers in mediation does nothing to improve the situation, where the parties are represented there is practical protection in that the policy underlying the prohibition is being well served. Thus mediation by non-lawyers where all parties are represented by counsel is probably a safe harbor.
Where any party appears pro se, it is very difficult to avoid reliance by the party on the mediator's understanding of the important issues in the dispute at hand. Thus the policy considerations for the prohibition on unauthorized practice apply fully. Some protection may be afforded by a written agreement stating that the mediator will not provide legal advice, but labels are not controlling. All documentary evidence of the process should be prepared only by the parties, and the parties should the define the issues to be resolved. Parties should be advised in writing to obtain legal counsel.
Finally, again in service of the policy, if not the letter of the prohibition, association of an attorney co-mediator will afford some protection.