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Agencies examine UPL

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Indiana Lawyer Focus


Long before he became Greenwood's police chief, attorney Joe Pitcher recalls sitting as a special judge in town court and facing an Unauthorized Practice of Law case that may be one of few like it in Indiana.

Sitting in the now-defunct New Whiteland Town Court at the request of the judge there, Pitcher handled a case where a man was representing a college-aged man arrested on an underage drinking charge. The man argued that he represented the teen in place of a parent, but wouldn't answer Pitcher's questions about whether he was licensed to practice.

The man was in his 60s, professional-looking, with a command of legal vernacular. But something wasn't right.

"He hadn't entered an appearance, and kept saying he was representing him in loco parentis - as a parent, which you can't do in a court of law," Pitcher said. "I kept asking him if he was a licensed lawyer and finally he said he could practice law in Indiana."

That turned out not to be the case, and the man was arrested for UPL. "He went to trial and represented himself pro se, and it was really quite a spectacle," Pitcher said. The man went to jail for about 60 days for the UPL.

Sadly, most UPL cases aren't that simple to recognize, attorneys say.

The lines defining UPL have blurred, and the amount of activity surrounding UPL has increased both nationally and statewide. The public has more knowledge of it as high-profile trust mill cases and legal form endorsements have become more prevalent. Combined with a struggling economy, an aging population that needs estate planning services, and overlaps in federal and state laws about authorized legal services, UPL has moved up on the priority list for the state's legal community.

For Indiana, that means the Indiana Supreme Court and the various agencies handling UPL have taken more of an interest in these types of issues, while attorneys and law firms have been forced to more carefully examine their business practices. Lawmakers have also begun exploring what can be changed by ramping up state law and criminal penalties for those engaging in UPL.

"There's a lot of charlatans selling pie in the sky and things they shouldn't be doing these days, and that's a matter of consumer protection," said State Rep. Ralph Foley, R-Martinsville, an attorney with Foley Foley & Peden. "Here in the valley, I've had people from less than modest means pay thousands of dollars for worthless documents folded in by non-lawyers, or even prepared by lawyers who never saw the client. This really hurts people."

At the urging of the Indiana State Bar Association's UPL Committee, Foley introduced House Bill 1315, which would have provided that UPL would be considered racketeering, a Class C felony subject to the state's Racketeering Influenced and Corrupt Organizations statute. UPL is currently a Class B misdemeanor.

Foley said he was disappointed his legislation didn't get a floor vote, and that he wants to reintroduce it due to the need to recoup expenses for prosecuting UPL.

The Indiana Supreme Court's Disciplinary Commission, the Attorney General, and ISBA, the three entities with authority to investigate and prosecute UPL actions, describe an uptick in UPL actions and investigations in recent years. Not necessarily because more UPL is happening, but because more resources have been devoted to recognizing this activity, they say.

"UPL has always been out there, but you don't hear much about this topic because when those who are doing it are approached, they typically stop doing it and it's not publicized," said Indianapolis attorney Kevin McGoff, who handles UPL cases and is currently involved in a high-profile trust mill case pending before the Indiana Supreme Court.

A hallmark case in the past two years has been an action brought by the ISBA against United Financial Services, accused of operating a trust mill and defrauding people for inadequate estate planning documents. That case is currently pending before the Supreme Court, and justices are determining how to handle unique issues about costs for the work done by the ISBA.

The ISBA and attorney general are also investigating a handful of other trust mill actions.

Outside of trust mills, the ISBA is also monitoring the availability of legal documents through sources like LegalZoom.com, and even some offered by Oprah Winfrey and Suze Orman. Some ISBA members have reported their clients have received estate planning and other documents with questionable legal advice.

"We recognize there's a First Amendment right to talk about these issues and exchange legal forms from books or Web sites, but when non-attorneys are giving advice about legal specifics, that's crossing the line," said Huntington attorney Wilford Hahn, chair of the ISBA's UPL Committee.

The ISBA committee works closely with the other two entities authorized to bring UPL actions, Hahn said, and they've all beefed up efforts in the past five years.

The Disciplinary Commission created a new position about two years ago to specifically handle UPL. The person who's held that job since July said she now devotes about 50 percent of her time to UPL. A large number of those cases involve mortgage foreclosure and debt settlement issues, she said.

"This presents some sticky issues, and you really have to do intense research into areas of law you wouldn't ordinarily look at," said Angie Ordway of the Disciplinary Commission.

Language barriers and increasing diversity are also issues that present more UPL situations, both Ordway and the AG's Office said. They point to the Indiana Supreme Court's decision in ISBA and Attorney General for the State of Indiana, relators v. Ludy Diaz, 838 N.E.2d 433 (2005), which dealt with "notario publicos." The AG's Consumer Protection Division has a concern with those issues, particularly those who hold themselves out as attorneys to perform immigration legal services, according to spokeswoman Molly Butters.

Those "notario" cases are particularly challenging because of language barriers, victims' reluctance to file complaints, and hesitancy to work with police because of the immigration status of victims, Butters said. Multiple investigations are ongoing, but the last UPL action from the AG's Office was the Diaz case filed in late 2003.

While the issues directly relate to non-attorneys delving into areas typically only allowed for lawyers and law firms, Indiana's legal community can still learn from what's been happening.

"If there's an ethical message to attorneys, it's the lesson that if you're going to be preparing any legal documents for a client, you'd better meet and talk with that person and don't prepare anything based on referrals," Hahn said. "Certain attorneys have received a small portion of what people have paid for trusts, when all they've done is rubberstamped a document and allowed their name to be attached. That's one thing we want them to be careful about."

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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