Public Benefits and the Unauthorized Practice of Law

These days, more and more so-called “experts” are springing up to assist seniors with their estate planning. Many of them claim they can prepare your estate plan, offering a wide range of advice to solve all of your problems. Some of them claim they can get you on Medicaid, or VA benefits, or protect your assets. Unfortunately, many of these so-called experts hold credentials earned in weekend courses, followed by open-book examinations and their knowledge is quite “limited.” Frequently these individuals and businesses are selling “products” since they really don’t know enough to plan holistically. Frequently they are slick salesmen focused on a commission and they cause more harm than good. The credentials they hold are window dressing designed to make it look like they know what they’re doing when they’re really (at best) a one-trick pony; they don’t have the training to really evaluate your situation and provide meaningful advice tailored to meet your needs. So what does the law say about this?

Georgia law defines the “practice of law” and prohibits non-lawyers from engaging in it. Georgia statutes (O.C.G.A. § 15-19-50) define the practice of law as:

  1. Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;
  2. Conveyancing;
  3. The preparation of legal instruments of all kinds whereby a legal right is secured;
  4. The rendering of opinions as to the validity or invalidity of titles to real or personal property;
  5. The giving of any legal advice; and
  6. Any action taken for others in any matter connected with the law.

Georgia statutes (O.C.G.A. § 15-19-51) then go on to provide that it is unlawful for any person other than a duly licensed attorney at law:

  1. To practice or appear as an attorney at law for any person other than himself in any court of this state or before any judicial body;
  2. To make it a business to practice as an attorney at law for any person other than himself in any of such courts;
  3. To hold himself out to the public or otherwise to any person as being entitled to practice law;
  4. To render or furnish legal services or advice;
  5. To furnish attorneys or counsel;
  6. To render legal services of any kind in actions or proceedings of any nature;
  7. To assume or use or advertise the title of “lawyer,” “attorney,” “attorney at law,” or equivalent terms in any language in such manner as to convey the impression that he is entitled to practice law or is entitled to furnish legal advice, services, or counsel; or
  8. To advertise that either alone or together with, by, or through any person, whether a duly and regularly admitted attorney at law or not, he has, owns, conducts, or maintains an office for the practice of law or for furnishing legal advice, services, or counsel.

It is also illegal for any corporation, voluntary association, or company to do or perform any of the acts recited above. Any of the acts described above are misdemeanors, which means they are criminal.

In 2005, the Georgia Supreme Court considered a case where a business claimed to provide advice to debtors. The business was explained as one where searches were made of courthouse records and where the business learned of a pending debt collection. The company would then contact the debtor and offer its “non-attorney” services. Those services included assessing the debtor’s situation, contacting the creditor’s attorney, attempting to negotiate a settlement. “Under the specific facts of this case, the company is required to exercise legal judgment to assess the validity and value of a creditor’s claim, evaluate procedural and evidentiary issues which may affect the outcome of the litigation, and advise clients as to their legal rights and obligations with regard to the debt and reasonableness of a settlement offer. Thus, under O.C.G.A. 15-19-50, the company and non-lawyer representing the company are engaging in the unauthorized practice of law.” In re UPL Advisory Opinion 2003-1, decided 11/21/2005.

The facts of the above case and those in a typical “estate planning” for public benefits consultation are remarkably similar. In public benefits cases, individuals are very concerned about their potential liability for health care debt, now and in the future. Routinely, salesmen indicate they are familiar with the law and offer to “assess” a potential customer’s situation. They then offer to provide advice concerning how to qualify for benefits. Sometimes they do this alone and other times they claim there is an attorney affiliated with their office. So, what does the State Bar of Georgia say about so-called estate planners who “have a lawyer” to “do the paperwork.” A formal advisory opinion from the State Bar makes it clear that it is improper for lawyers to lend their name so non-lawyers can provide legal opinions. See Formal Advisory Opinion No. 00-2. That opinion states: “a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer creates a reasonable appearance to others that the lawyer has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own.” Further, where an attorney prepares documents for signature in front of a nonlawyer, the attorney is likely assisting the nonlawyer in creating the appearance that the nonlawyer is qualified to render legal advice. “A lawyer permitting a nonlawyer to do this would be in violation of Standards of Conduct 24, 4, and 5.”

An individual can suffer serious harm when a non-lawyer provides legal advice. In just one example, CBS reported the story of Mary Lynch, a “spry Pennsylvania grandmother.” An estate planning group sold her a kit to prepare a living trust. According to the news report, it was a trap used to find out what senior citizens owned. “And once they do that, they can target, like let’s say, your mom and hard-pressure sell, to buy this annuity and earn a 10-percent commission.” Even when there is no allegation of intentional wrong-doing, inappropriate advice given by individuals and companies with inadequate training and experience can cost you tens of thousands of dollars.

If someone who is not an attorney offers you legal advice, you can do something about it. You can call the State Bar of Georgia’s hotline for the Unauthorized Practice of Law. That number is (404) 527-8743. You can get more information about the Unauthorized Practice of Law at:
Georgia UPL Rules and Statutes

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