Ethics Opinon 1983-12

I
QUESTION PRESENTED

Does advice and assistance rendered in the selection, preparation and filing of various forms in a dissolution of marriage or legal separation matter by a non-lawyer "divorce center" constitute the unauthorized practice of law? May an attorney associate with such an entity to provide legal services?

II
SUMMARY

While it is difficult to define with specificity the exact nature of what will constitute the practice of law, rendering advice or assistance in the selection, preparation and filing of dissolution documents does fall within the definition set forth in California Business and Professions Code section 6125 and therefore constitutes the unauthorized practice of law. The Rules of Professional Conduct, rules 3-101, 3-102 and 3-103 prohibit a member of the State Bar from aiding in the unauthorized practice of law or from forming a partnership with a person not licensed to practice law.

III
DISCUSSION

California Business and Professions Code section 6125 states:

"No person shall practice law in this state unless he is an active member of the State Bar."

Unlawful practice of law by a person who is not an active member of the State Bar is a misdemeanor. See California Business and Professions Code section 6126. The question of what constitutes the practice of law is often difficult to ascertain. The ABA Model Code of Professional Responsibility, Canon 3, Ethical Consideration 3-5, states in part:

"Functionally, the practice of law relates to the rendition of legal services for others that call (sic) for the professional judgment of a lawyer."

The California courts have adopted the following definition:

"As the term is generally understood, the practice of law is the doing and performing of services in a court of justice in any matter pending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be pending in a court. Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542." (emphasis added)

See also Opinion 1983-7, San Diego County Bar Association; Baron v. City of Los Angeles (1970) 2 Cal.3d 535, and Farnham v. State Bar (1976) 17 Cal.3d 605.

The focus of our discussion is on the giving of legal advice and the preparation of legal instruments which secure legal rights in a dissolution matter. In a further attempt to more closely define what activities constitute the practice of law, the California courts have determined that "the resolution of legal questions for another by advice and action is practicing law if difficult or doubtful legal questions are involved which to safeguard the public, reasonably demand the application of a trained legal mind." Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543.

In this context, the California courts have specifically addressed the issue of preparation of legal instruments. "In a larger sense, the practice of law includes legal advice and counsel and the mere preparation of legal instruments." Farnham v. State Bar (1976) 17 Cal.2d 605, 612. Based on this authority, a divorce center preparing and filing the necessary paperwork in dissolution or separation proceedings would fall under this definition and would be engaged in the unauthorized practice of law.

The Colorado courts have upheld an injunction prohibiting several "divorce agencies" engaged in "do-it-yourself" divorce business from preparing for third persons pleadings or other written instruments relating to a dissolution of marriage other than in a manner performed by a scrivener or public stenographer. Colorado Bar Association v. Miles (1976) 192 Colo. 294 [557 P.2d 1202]. The Colorado court held that the defendants were properly enjoined from holding themselves out as being able or available to provide to third persons assistance in obtaining a dissolution, annulment or severence of any marriage. (Id., at p. 1202).

Finally, it should be noted that agencies or centers assisting in the selection, preparation and filing of legal papers cannot become authorized to perform such services merely by associating with an attorney. Rule 3-101(A) of the California Rules of Professional Conduct states:

"A member of the State Bar shall not aid any person, association or corporation in the unauthorized practice of law."

Rule 3-102(A) states:

"A member of the State Bar shall not directly or indirectly share legal fees except with a person licensed to practice law . . ." (with stated exceptions)

Rule 3-103 states:

"A member of the State Bar shall not form a partnership with a person not licensed to practice law if any of the activities of the partnership consist of the practice of law."

An attorney may not aid a lay person or a non-lawyer entity in the unauthorized practice of law and would be prohibited from associating with a non-lawyer divorce center which is engaged in such unauthorized practice of law. This opinion does not, of course, prohibit the use of properly supervised paralegals by an attorney in dissolution matters.

This opinion is advisory only. It is not binding on the State Bar, the Board of Governors, its agents or employees.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.