Today we will cover the unauthorized practice of law.

1. Today we will cover the unauthorized practice of law.

2. Unauthorized practice of law, also known as UPL, is a crucial part of the protection of our legal system and the understanding of how the law is administered. This topic deserves attention so boundaries in the legal profession can be clearly understood. The problem is defining what exactly the practice of law is. Think about how you would define the "practice of law"? Without defining it makes defining the unauthorized practice very difficult.

3. The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "the preparation of legal instruments of all kinds, and in general all advice to clients and all action taken for them in matters connected with the law." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987).

4. On the other hand, the practice of law is defined by Section 81.101 of the Texas Government Code as: (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. 

5. (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.  c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.

6. The ‘practice of law’ is defined in decisions of the Oregon Supreme Court and generally includes, among other things: •appearing on behalf of others in Oregon courts and administrative proceedings; •drafting or selecting legal documents for another when informed or trained discretion must be exercised to meet the person’s individual needs; • advising someone of his or her legal rights in a particular situation; • having a law office in Oregon regardless of where clients are located; • acting as an immigration consultant unless authorized by federal law to do so; and • holding oneself out as a lawyer. It is not necessary that money change hands in order for conduct to be the practice of law.

7. Although it depends on the specific facts of each situation, some of the commonly occurring activities that generally are not considered the practice of law in Oregon include: • individual litigants who represent only themselves; • representation of others in justice courts; • out-of-state lawyers or collection agencies who send demand letters into Oregon, without more; • properly licensed lawyers who limit their practice exclusively to certain areas of federal law, such as patent law; • activities of licensed professionals whose actions are within the scope of their licenses; for instance, real estate professionals, title insurance companies, certified public accountants and other licensed tax professionals; • sale of generic do-it-yourself legal publications without any further personalized assistance in preparation of documents or court papers; and • internet discussions groups without further personalized assistance in preparation of documents or court papers.

8. In the American Bar Association Model Rules of Professional Conduct, it states, "A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction or assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." In other words you can be an attorney and still be guilty of the unauthorized practice of law. What this definition indicates is that attorneys may not practice law where they are not licensed to do so and they may not assist another person in UPL. So for an attorney licensed in only one state, she/he may not practice law in another without appropriate licensure. As for assisting another person with UPL, this would include helping a legal assistant work outside the boundaries of their legal responsibilities as a non-lawyer professional.

9. UPL does not include lawyers being able to educate other non-lawyer about the law where it is necessary. This is quite different than giving legal counsel which would be more legal advice rather than legal education. This enables lawyers to publish and lecture beyond the areas in which they are licensed to practice in. Attorneys can do things to help prevent UPL from occurring, especially within their own practice. Mostly this involves proper supervision of non-lawyer employees. When an attorney delegates responsibility to a legal assistant, great care must be taken that this legal professional knows what the boundaries are. Selection of clients and cases are also valid. Lawyers are the only ones who may represent a client in court proceedings for they are the ones with the knowledge and skill necessary to provide competence to a client.

10. The client is also protected by ethical rules which bind the attorney-client privilege as well as confidentiality and other conflicts of interest. The only person other than an attorney who can appear as representation is someone who represents themselves in court. Representation outside of the court such as in administrative proceedings may have a different result. Attorneys must also be present during depositions which are interviews that can be used in court proceedings. Information obtained from depositions can be crucial to a case. Pleadings cannot be signed by anyone other than an attorney also, who is licensed to practice before the particular court. A pleading is considered a written appearance in court that only an attorney can employ.

11. Attorneys are also the only ones who can give legal advice to clients. Great care must be taken by legal assistants that the information they give to clients does not constitute UPL. The line is very fine and it must not be overstepped or the supervising attorney could lose her license. However note that a paralegal or legal assistant can relay information from the attorney with the attorney’s permission. Prevention is the key to avoiding UPL. If there is any doubt in the mind of someone not authorized to practice law, then questions should be asked to clarify and avoid any serious consequences. If a question remains the best thing to do is not to do it.

12. Except where a person is representing his or her own cause, practicing law without a license is strictly prohibited by state law. In South Carolina, Section 40-5-310 states that practicing law without a license is a felony, with a penalty of up to five years in prison and/or five a thousand dollar fine. As you can see the penalty and punishment is substantial in many states. Punishment does vary in the states. The biggest problem in determining whether someone is engaged in the unauthorized practice of law is determining whether his or her conduct is actually the "practice of law." It is up to the Court to decide whether someone is engaged in the practice of law.

13. Additionally, as I stated before whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002). Examples:Inmates. The Supreme Court ruled that it was the unauthorized practice of law for a state prison inmate to help other inmates prepare applications for post-conviction relief, even though he was not paid and never appeared in court on the other inmates' behalf. South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).

14. On the other hand, the Ohio Supreme Court announced that the Court dismissed a case that would have answered the question of whether a jailhouse lawyer named Prince Charles Cotton Sr. engaged in the unauthorized practice of law by assisting his fellow inmates by conducting legal research, preparing pleadings and giving legal advice. In Disciplinary Counsel vs. Cotton, Case No. 2004-1130, the Ohio Supreme Court declined to hear the case on the basis that inmates have a right to reasonable access to the courts, and the prison system at issue did not provide an alternative to the services Mr. Cotton was providing. The court was careful to state that it would have reached a different result had Mr. Cotton been engaging in the same activities outside of the prison, where the foregoing principles would not apply.

15. Real Estate Closings. Preparation of deeds, mortgages and other legal instruments related to transfers of real estate falls within the practice of law. Additionally, the Supreme Court ruled that "real estate and mortgage loan closings should be conducted only under the supervision of attorneys, who have the ability to furnish their clients legal advice should the need arise . . . ." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987); Doe v. Condon, 568 S.E.2d 356 (S.C. 2002). 3rd Party Insurance Adjusting. Public insurance adjustment does not necessarily constitute the practice of law, and is regulated by SC Code section 38-48-70. Insurance adjustment is limited to include: (a) estimations of property damage and repair costs, (b) inventory of loss, (c) delivering claim to insurance company, and (d) negotiating with insurance company relating to property-damage valuations.

16. Insurance adjustment on the other hand violates restrictions on unauthorized practice of law when conduct includes: (a) advising clients of their rights under an insurance policy, (b) advising on whether to accept settlement offers, (c) becoming involved in coverage dispute between the client and the insurance company, and (d) advertising that adjuster offers services that require legal skill. Linder v. Ins. Claims Consultants, Inc., 560 S.E.2d 612 (S.C. 2002). Unsupervised paralegal. A disbarred attorney prepared and filed a deed for a small fee. Though he argued that he was merely acting as a paralegal, his conduct constituted the practice of law. Paralegals do not engage in the practice of law as long as their work is of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable a licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort." Matter of Easler, 272 S.E.2d 32 (S.C. 1980).

17. Estate planning seminar. A paralegal wanted to conduct unsupervised "wills and trusts" seminars for the public. Because the paralegal planned to advise potential clients of their need for particular estate planning devices, such advice requires professional judgment by a licensed attorney. Doe v. Condon, 532 S.E.2d 879 (S.C. 2000). Paralegal advertising. A paralegal advertised, "If your civil rights have been violated, call me." It was illegal for the paralegal (not a licensed attorney) to solicit the cause of another person. At the time of the case, it was legal for a non-lawyer to defend the cause of another after receiving permission by the court. Now, it is illegal for an unlicensed person to represent anyone other than himself or herself. South Carolina v. Robinson, 468 S.E.2d 190 (S.C. 1996).

18. Pro bono paralegal. A certified paralegal offered voluntary services for persons in need of assistance with housing and landlord-tenant issues. The paralegal prepared and filed a complaint (lawsuit) in federal court relating to unlawful eviction. He also prepared pleadings filed in state circuit court alleging unlawful termination of public assistance benefits. The fact that the paralegal was not paid was irrelevant. The Supreme Court ruled that his actions amounted to the practice of law, which includes "the preparation of pleadings and the management of court proceedings." The Hous. Auth. Of the City of Charleston v. Key, 572 S.E.2d 284 (S.C. 2002). Corporations. Though someone may represent himself or herself pro se, this exception applies only to individuals. A non-lawyer (officer, agent or employee) can only represent a corporation in civil magistrate's court. Some state may allow it in small claims court. Because a corporation is an artificial entity created by law, it cannot represent itself. A corporation must be represented by a licensed attorney in circuit and appellate courts. Renaissance Enterprises, Inc. v. Summit Teleservices, Inc., 515 S.E.2d 257 (S.C. 1999).

19. A non-lawyer insurance representative/employee appeared before a State commissioner. Though an individual can appear on behalf of him or herself, a corporation cannot appear or act in person, and cannot practice law. The Court reasoned that, "[i]f a corporation could appear in court through a layman upon the theory that it was appearing for itself, it could employ any person, not learned in the law, to present it in any or all judicial proceedings." State ex rel. Daniel v. Wells, 5 S.E.2d 181 (S.C. 1939). Legal document computer programs. A business woman used a computer program to generate legal documents for other persons to be filed in family court. The Supreme Court found this activity amounted to the unauthorized practice of law when it involves "the giving of advice, consultation, explanation or recommendations on matters of law," and "instructing other individuals in the manner in which to prepare and execute such documents." South Carolina v. Despain, 460 S.E.2d 576 (S.C. 1995).

20. Bay County Bar Association v. Finance System, Inc.—Where a corporation and an individual, who was not licensed as an attorney, in operating collection agencies, took assignments of claims from their customers and brought suits on the assigned claims, in which the customers retained an interest, the corporation and individual were engaging in the unauthorized practice of law. Detroit Bar Association v. Union Guardian Trust Co.—The statute authorizing trust companies to act as agents or attorneys in management of estates and serve as trustees, empowers them to perform ordinary and incidental services relative to trusts assumed by them for statutory fees only, without violating the UPL statute. Dressel v. Ameribank—Preparing the legal documents for a banking or mortgage transaction the lender is involved in and charging the customer a fee for the documents does not constitute the unauthorized practice of law.

21. Dubuc v. Michigan Board of Law Examiners (Cite 342 F.3d 610)—Michigan Bar as a state agency is entitled to immunity under the 11th Amendment. Executive Director of the SBM is not entitled to 11th Amendment immunity. Absolute immunity provisions of the Michigan Supreme Court Rules Concerning the State Bar of Michigan do not immunize Executive Director of the SBM from suit in federal court alleging federal constitutional violations. Ginger v. Cohn (Cite 426 F.2d 1385)—After disbarment attorney had no standing to continue to represent bankrupt corporation. In re Ernest J. Desilets (Cite 291 F.3d 925)—A lawyer not licensed to practice in Michigan may practice bankruptcy law generally in Michigan if properly admitted to practice before the federal court of the state. In the Matter of Bright (171 B.R. 799)—U.S. District court case regarding UPL and non-lawyer bankruptcy petition preparer. Ingham County Bar Association v. Walter Neller Company—Title insurance companies have no authority to engage in activities “incidental” to their business, whether or not they charge for the service.

22. Office of Disciplinary Counsel v. Frank J. Marcone lawyer not admitted to state in which court sits. Peters Production, Inc. v. Desnick Broadcasting Company—Recognizing that a corporation is a legal entity separate from its officers, shareholders, or other constituents, Michigan law does not allow a non-lawyer officer or shareholder of a corporation to appear in court proceedings on behalf of the corporation. Shenkman v. Bragman—The filing of a wrongful death action by a Personal Representative of a deceased estate in pro per (without an attorney) constitutes the unauthorized practice of law.

23. State Bar of Michigan v. Cramer—Not only court appearances, but also out-of-court conduct may be prohibited pursuant to unauthorized practice of laws and rules. Some South Carolina Exceptions. In addition to pro se (self representation) representation and representation of a corporation before a magistrate's court, the Supreme Court has provided for several exceptions allowing a non-lawyer to engage in legal proceedings. State agencies may permit non-lawyers to appear and represent clients before it. Certified public accountants (CPAs) maintain a special status before the court. It is not the unauthorized practice of law for a CPA to represent clients before an agency or Probate Court if it is within his or her professional expertise and qualifications. Lastly, an arresting police officer does not engage in the unauthorized practice of law when he or she prosecutes traffic offenses in magistrate's court or a municipal court. In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 422 S.E.2d 123 (S.C. 1992).

24. Some Florida Exceptions: Limited Appearance in Florida: Attorneys licensed in another state may represent someone in a court proceeding in Florida with the court's permission and in arbitration proceedings in Florida. Certain requirements must be met in order to appear and copies of the motion or verified statement must be filed with The Florida Bar. Formal Advisory Opinions: Rule 10-9.1 of the Rules Regulating The Florida Bar allows the Standing Committee on Unlicensed Practice of Law to issue proposed formal advisory opinions concerning activities which may constitute the unlicensed practice of law. Authorized House Counsel: Authorized House Counsel (AHC) are attorneys certified by The Supreme Court of Florida to perform limited legal services while working for a business organization. Foreign Legal Consultant: The Florida Bar's Foreign Legal Consultancy Rule allows a foreign attorney to advise clients on the laws of the country under which the attorney is admitted to practice.

25. Some Texas Information What does the Unauthorized Practice of Law Committee do? The UPLC is charged with eliminating the UPL and reporting to the Texas Supreme Court and the State Bar of Texas about its actions and UPL in Texas by non-lawyers and the activities of lawyers to aid UPL.  The UPLC delegates the investigation of UPL complaints to investigators who are members of local subcommittees appointed by the UPLC.  The UPLC meets at least twice a year to receive reports from its regional and district chairpersons and votes whether to authorize civil court lawsuits to enjoin the unauthorized practice of law.  If suit is authorized, the suit is prosecuted for the UPLC by volunteer attorneys.  The UPLC cannot give advisory opinions about whether a certain activity is UPL.

26. Are the records of the UPLC open to the public? The UPLC is considered a "judicial agency" and is therefore not subject to open records statutes. Some Oregon Information The practice of law in Oregon is regulated by the legislature and the courts. With some exceptions, only lawyers who are admitted to the Oregon State Bar (OSB) may practice law in Oregon. The Oregon State Bar Act says that a person may not practice law or hold oneself out as qualified to practice law unless that person is an active member of the Oregon State Bar. The OSB is responsible for investigating allegations of the unlawful practice of law. Generally, enforcement of prohibitions on the unlawful practice of law is complaint driven, that is, the bar relies on the public to provide information about individuals practicing law without a license. The bar receives complaints from judges, injured consumers, lawyers and other state bar associations.

27. Complaints are forwarded to the Unlawful Practice of Law (UPL) Committee of the OSB. This committee consists of about sixteen lawyers and four public members, all volunteers appointed by the OSB Board of Governors. Each complaint is assigned to a member of the committee for investigation. The investigator contacts the complaining party and the person being accused of practicing law without a license, and makes other investigation as the facts warrant. The investigator then prepares a report, which is considered by the entire committee at its monthly public meetings. Except in the most complicated cases, the time from initial complaint to consideration by the UPL committee is about six months.

28. The UPL committee has authority to: •dismiss a complaint; • send a notice letter, warning that the accused’s activities could be considered the unlawful practice of law; • issue an admonition with the consent of the accused; • enter into a cease and desist agreement with the accused; or, • recommend to the OSB Board of Governors that the OSB file a lawsuit against the accused to prevent him from continuing to practice law without authorization.

29. Michigan - When a person or company says or does something on behalf of another person that involves legal discretion or making a decision about legal matters, that is the practice of law. It is the unauthorized practice of law for a person to exercise legal discretion on behalf of another person, or practice law for another person, when they are not legally authorized to do so. Pennsylvania § 2524. Penalty for unauthorized practice of law. (a) General rule.--Except as provided in subsection (b), any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at law, counselor, or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with 15 Pa.C.S. Ch. 29 (relating to professional corporations), commits a misdemeanor of the third degree upon a first violation. A second or subsequent violation of this subsection constitutes a misdemeanor of the first degree.

30. Nebraska Section 7-101- Unauthorized practice of law; penalty. Except as provided in section 7-101.01, no person shall practice as an attorney or counselor at law, or commence, conduct or defend any action or proceeding to which he is not a party, either by using or subscribing his own name, or the name of any other person, or by drawing pleadings or other papers to be signed and filed by a party, in any court of record of this state, unless he has been previously admitted to the bar by order of the Supreme Court of this state. No such paper shall be received or filed in any action or proceeding unless the same bears the endorsement of some admitted attorney, or is drawn, signed, and presented by a party to the action or proceeding. It is hereby made the duty of the judges of such courts to enforce this prohibition. Any person who shall violate any of the provisions of this section shall be guilty of a Class III misdemeanor, but this section shall not apply to persons admitted to the bar under preexisting laws.

31. The Supreme Court of Ohio dismissed a complaint alleging that Charles Cotton, a.k.a. Prince Charles Cotten, a prisoner at the London Correctional Institution who regularly advises and assists fellow prisoners on appeals and other legal matters, has engaged in the unauthorized practice of law. The Court's 4-3 majority decision was authored by Justice Maureen O'Connor. The case involved a complaint filed by the Supreme Court Board on the Unauthorized Practice of Law against Cotton, who has been in prison for more than 20 years serving a term of 22 years to life for counts of aggravated murder, felonious assault and murder. The board found that, while incarcerated at the London Correctional Institution (LoCI) between 1993 and 2005, Cotton had conducted legal research, offered legal advice and prepared and signed legal documents on behalf of many other inmates, and that these actions constituted the unauthorized practice of law because Cotton is not and has never been licensed as an attorney.

32. The Court originally heard oral arguments in the case in 2005. Rather than issuing a decision on the merits at that time, the Court remanded the case to the board for further consideration and directed the board to make findings regarding whether inmates in Ohio correctional facilities generally and at LoCI in particular currently have access to sufficient resources to assist them in preparing effective petitions for post-conviction relief. The board conducted additional fact-finding, and submitted a new report to the Court stating that the LoCI provides inmates with adequate access to library resources including law books and sample legal forms and pleadings, and with personal assistance from four inmate ‘law clerks.' Based on those findings, the board recommended that the Court issue an order prohibiting Cotton from engaging in any further provision of legal advice or legal services to others inmates.

33. Writing for the majority in today's decision, Justice O'Connor cited the U.S. Supreme Court's 1969 decision in Johnson v. Avery, which held that prison inmates deprived of their freedom have a fundamental right of access to resources necessary to pursue post-conviction relief through the courts, and that regulations barring non-lawyer inmates from providing legal advice and assistance to other inmates were not enforceable unless the resources provided by the prison system offered a “reasonable alternative” to the assistance provided by unlicensed “jailhouse lawyers” like Cotton. In reviewing the legal resources available to LoCI prisoners, Justice O'Connor noted that none of four inmate law clerks mentioned by the board had any formal legal education, and that up to 300 prisoners a day typically make use of the prison library, with 20 to 80 persons present at any one time attempting to access the available materials and get assistance from the clerks.

34. “The standard announced in Johnson requires that to be considered a ‘reasonable alternative' to jailhouse lawyers, the assistance provided by the state must accord an inmate with meaningful access to the justice system. ‘Meaningful access' requires more than just a law library and four law clerks that have little to no legal training,” wrote Justice O'Connor. ... “ The reliance on the presence of four clerks to support the conclusion that LoCI's system provides a reasonable alternative is defeated by the fact that LoCI has, as of June 2007, a prison population of 2,153 inmates. ... In order to be effective in assisting such a large clientele, these four clerks must demonstrate more efficiency and productivity than the clerks, paralegals, and office staff of the most high-powered law and governmental offices if they are able to provide meaningful assistance to these inmates in a six-hour timeframe.”

35. Rather than pursuing disciplinary orders against Cotton and other jailhouse lawyers, whom she noted are typically indigent individuals serving long prison sentences and therefore not deterred by sanctions of fines or jail, Justice O'Connor suggested that “the regulation of and enforcement of discipline for respondent's activities therefore, are best left in the hands of the proper prison authorities.” She also noted that courts have the authority to reject third-party documents submitted with the signature of a jailhouse lawyer rather than that of a licensed attorney or of the person on whose behalf a filing is made. “Today's decision is not so much an endorsement of respondent's ‘right' to be a jailhouse lawyer, but rather an acknowledgement of inmates' rights to meaningful access to the courts,” wrote Justice O'Connor. “Because LoCI's prison system does not provide a reasonable alternative to the actions of jailhouse lawyers, we reject the board's recommendations. The charge against respondent is dismissed.”

36. Justice O'Connor's opinion was joined by Justices Paul E. Pfeifer and Terrence O'Donnell. Justice Judith Ann Lanzinger concurred in judgment only. Writing separately, Justice Lanzinger stated that in her view the legal resources made available to LoCI prisoners are adequate to allow enforcement of restrictions against unauthorized law practice under Johnson v. Avery, but said she concurred with Justice O'Connor's conclusion that because of the unique legal needs and restrictions faced by prison inmates, oversight and regulation of legal assistance practices among prisoners is best administered by state corrections officials rather than through the Court's board on unauthorized practice. Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Robert R. Cupp dissented, with Justices Stratton and Cupp entering separate dissenting opinions.

37. Justice Stratton dissented on two grounds. First, she disputed that this case involved only a “prison regulation” issue. Justice Stratton wrote, “Our authority, and obligation, to regulate the practice of law does not stop at the prison door. We have the same duty to protect other inmates from incompetent and ineffective lawyering.” In addition, Justice Stratton disputed the majority's determination that the legal resources made available to LoCI inmates do not provide alternative means for prisoners to pursue post-conviction relief sufficient to justify enforcement of the Supreme Court's unauthorized practice rules against “jailhouse lawyers” like Cotton. Citing the findings of the unauthorized practice board in its report recommending enforcement action against Cotton, Justice Stratton enumerated multiple legal resources and types of assistance made available to LoCI inmates, including special assistance for prisoners with limited literacy skills, free “legal kits” provided to indigent inmates and an extensive variety of fill-in-the blanks legal forms for the specific types of post-conviction petitions most often sought by inmates.

38. Citing the U.S. Supreme Court's 1996 decision in Lewis v. Casey, decided 27 years after Johnson v. Avery, Justice Stratton wrote: “(T)he court in Lewis concluded that 'meaningful access' means only that inmates 'have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.‘ I believe that Lewis limits the scope of the alternative assistance required under Johnson, by holding that alternative assistance requires a state to provide inmates a reasonably adequate opportunity to file claims challenging their convictions or conditions of confinement, but does not require the state to provide inmates the effective equivalent of legal counsel.” Finding that the legal resources provided for LoCI inmates meet the requirements of Johnson and Lewis, Justice Stratton wrote that she would adopt the recommendation of the board and enjoin Cotton from future acts of unauthorized practice of law.

39. In a separate dissent joined by Chief Justice Moyer, Justice Cupp took particular note that the unauthorized practice board found that Cotton had prepared legal documents on behalf of others and had signed his name to those documents “as if he were acting as legal counsel for other inmates. I would adopt the board's recommendation to enjoin Cotton from engaging in the unauthorized practice of law in the future.” wrote Justice Cupp. “Additionally, I would encourage the officials of the Ohio Department of Rehabilitation and Correction to enforce their rules prohibiting inmates from acting or holding themselves out as attorneys on behalf of other inmates, to avoid the unauthorized practice of law within the prison system.”

40. California Perspective • There's a law on the books in California that prohibits the "unauthorized practice of law." Vague and ill-defined, it is little-known and rarely enforced. • Mershan Shaddy, a San Diego paralegal, learned that the law is still very much enforceable. Found guilty in a criminal case of practicing law without a license and sentenced to 49 days in jail.