Estate Planning Law – Why A Lawyer?
This a reblog of a post from my website of 2013 but bears repeating.
I subscribe to a number of ‟listservs” for trust and estate lawyers that serve as a forum for email discussion about a variety of estate planning and probate topics. Just today a comment was posted about Will and Trust drafting services provided “online” by a variety of different companies that are not law firms or lawyers. This morning’s comment motivated me to write about the unauthorized practice of law in Colorado and the risks to the public in having important legal documents prepared by persons who are not lawyers.
The Colorado Supreme Court has defined the “practice of law” as “act[ing] in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting [another] in connection with these rights and duties.” Dissecting this definition, we see that there are many critical aspects to the practice of law and the attorney-client relationship that is established in the process.
First and foremost a lawyer serves in a representative, ‟fiduciary” or trust capacity in which the client’s interests are of paramount importance. When a lawyer enters the practice of law in Colorado, she takes an oath to uphold the law and to follow the standards of ethics established by the Colorado Supreme Court. Generally speaking, only licensed attorneys in good standing with the Colorado Supreme Court are allowed to practice law in Colorado. Qualifications for a Colorado law license include graduation from an accredited law school, passage of an extensive bar examination, and determinations of character and fitness by the Colorado State Board of Law Examiners.
The guiding principal of the lawyer’s fiduciary, representative capacity is to protect, enforce and defend legal rights, interests and legal duties of individuals and entities. Inherent in the practice of law is not only knowledge of the law, but the ability to counsel, advise and assist a client regarding his or her rights and duties within the confines of the law. A lawyer’s skill involves applying the correct legal rules and principles to a client’s specific and unique circumstances. Someone who is not trained in the law is not capable of making recommendations as to proper courses of action and is not capable of preparing documents that can affect a person’s legal rights or duties.
Thus, a non-lawyer generally cannot:
1) Provide legal advice to another person;
2) Select legal documents on behalf of another person;
3) Draft legal documents on behalf of another person;
4) Interpret the law as it may apply to another person’s situation;
5) Represent another person in any legal transaction or matter;
6) Prepare another person’s case for trial.
When a non-lawyer purports to give legal advice, the potential for financial and non-economic harm to the public is significant. The primary purpose for regulating the practice of law is to protect the public from harm that may result from the activities of dishonest, unethical and incompetent providers of legal services, and to ensure that certain ethical duties to the client, the courts and the public are adhered to (these duties include loyalty, competence, diligence and candor).
You might ask just what kind of financial (or estate planning) advice from a non-lawyer, including an accountant or a “certified senior advisor,” constitutes the unauthorized practice of law? Here is the response of the Colorado Supreme Court to this question: ‟Although this list is not exhaustive, the creation and sale of trust documents by non-lawyers, including accountants and certified senior advisors, constitutes the unauthorized practice of law. Similarly, preparing a will for another person constitutes the unauthorized practice of law.”
Moreover, paralegals (and legal assistants) cannot practice law in Colorado. Thus, a paralegal cannot provide direct legal services to a consumer. A paralegal can only act under the direction and supervision of a licensed attorney and that attorney is ultimately responsible to the client. Paralegals cannot advertise or otherwise hold themselves out to the general public as being able to provide paralegal services to anyone but a licensed attorney.
For the same reasons that you wouldn’t trust a college graduate who took some biology and chemistry classes to perform a joint replacement surgical procedure for you, you shouldn’t trust a non-lawyer to give you legal advice about something as important as your estate planning legal matters. The Colorado Supreme Court will not permit an unlicensed person to commit acts that are unethical, likely to injure a legal client, or that prejudice the administration of justice.
Folks who resort to online services for their estate planning legal needs and any other type of legal representation proceed at their own peril. Since January 1, 2000, the Colorado Supreme Court has publicly ordered certain individuals and companies to refrain from engaging in acts of unauthorized practice of law. The Colorado Supreme Court website maintains a list of those individuals and companies who have been ordered to cease the unauthorized practice of law which is posted at the following location: http://www.coloradosupremecourt.com/Regulation/UPL_Injuction_Listing.htm. For more information about the Colorado Supreme Court regulation of Colorado licensed lawyers and the unauthorized practice of law, visit: http://www.coloradosupremecourt.com.
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