Opinion 94-29
(December 1994)

You have asked for guidance concerning an issue involving the possible unauthorized practice of law. According to your inquiry, a real estate organization has had a standard lease-purchase form (the "form") prepared by its attorney. The form contains blanks into which the names of the parties, purchase amounts, due dates, etc., will be inserted by the non-lawyer sales agents who are involved in the negotiation of the transaction. The organization's attorney will review the finalized forms, but not necessarily before those forms are presented to the respective parties for execution.

You have inquired whether the sales agents' role in the process of preparing the forms could constitute the unauthorized practice of law.

The Committee considered your inquiry at its December 12, 1994 meeting. The Committee's charge requires it to focus its analysis upon questions of professional conduct of inquiring attorneys, and non-lawyers. Therefore, our chief concern was whether the real estate
company's supervising counsel was at risk of violating the Rules of Professional Conduct ("Rules") under the scenario you described. The Committee concluded that, under the facts as your inquiry presents them, and assuming the sales agents do nothing more than the "fill in the blanks" activity as you have described it, these activities do not constitute the unauthorized practice of law by the sales agents. Therefore, the supervising attorney is not in violation of the applicable rules.

Practicing law without admission to the bar is a third degree misdemeanor under 42. Pa.C.S.A. ยง2524. Rule 5.5(a) prohibits an attorney from assisting a non-lawyer in the unauthorized practice of law. As stated by the comment to Rule 5.5, state law governs what is and is not the unauthorized practice of law.

Construing Pennsylvania law, the United States Bankruptcy Court for the Western District of Pennsylvania recently held that the focus in determining whether a non-lawyer's action constitutes practicing law is on whether the task performed requires the exercise of legal judgment. In re Harris, 152 B.R. 440 (Bkr. W.D.Pa. 1993). In Harris, the court determined that an activity is the practice of law if this undertaking involves legal knowledge, training, skill, and ability beyond what the average layperson possesses. There, a typing service that completed bankruptcy forms for a fee routinely gave customers advice on how to fill out the form, how to classify claims (i.e., secured or unsecured), whether the customer was a party to an executory contract, and other conclusions that traditionally require legal knowledge and training. The activities were found to be the unauthorized practice of law. However, the Harris court explained that the typing service's mere administrative activities, such as typing up forms using information given to it by customers or others, was not the unauthorized practice of law. See also Wilkinson v. United Parcel Service, 158 Pa. Super. 22, 43 A.2d 408 (1945) (completion of forms to make worker's compensation claim not necessarily the practice of law); Blair v. Motor Carriers Service Bureau, 40 D. & C. 13 (Com. P1. 1941) (layperson may prepare tariff forms for a motor carrier without engaging in prohibited practice of law).


As the above cases suggest, so long as the sales agents do not give advice or draw conclusions based upon the customer's information, and limit their activity to placing the data in the provided spaces on the forms, there will be no unauthorized practice of law which would constitute a violation of Section 2524, or expose a supervising attorney to disciplinary enforcement for violation of Rule 5.5.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.