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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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