5.04. Criminal Restriction on Unauthorized Practice of Law

Most states make it a crime to engage in the unauthorized practice of law.  For example, Mississippi Code Ann. § 73-3-55, makes it a misdemeanor to “engage in the practice of law” without being “licensed according to law.”  The statute then goes on to define what is included as the crime of unlicensed practice of law:

Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instated in any court in this state, or given any counsel or advice therein, or who shall write or dictate by any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title to real estate other than his own or in which he may own an interest, shall be held to be engaged in the practice of law. This section shall not, however, prevent title or abstract of title guaranty companies incorporated under the laws of this state from making abstract or certifying titles to real estate where it acts through some person as agent, authorized under the laws of the State of Mississippi to practice law; nor shall this section prevent any abstract company chartered under the laws of the State of Mississippi with a paid up capital of fifty thousand dollars ($50,000.00) or more from making or certifying to abstracts of title to real estate through the president, secretary or other principal officer of such company.

A couple of things to note about this criminal statute. First, there is not one conviction under this statute on Westlaw (although it has been cited in civil cases brought to enjoin the unauthorized practice of law).  Of course that could be because defendants were convicted and chose not to appeal.  More likely, however, this criminal activity is not a priority for prosecutors.  While rare, prosecution can happen.  In 2018, Natalie Robinson, a woman from Calhoun, Louisiana, was charged with a felony count of practicing law without a license.[1]  She posted her availability on Facebook under items for sale.  Here is some of what she posted:

• “Divorces $350 Calhoun, La.”
• “I provide a clerical service to help in many areas.  Divorce, child custody, power of attorney, living will, quitdeed, termination of parental rights, contracts, eviction notice, rental agreements and more.  Please message me for more information.”
• “I am not an attorney.  I offer legal document preparation to the public at your specific direction.”
• “I have been assisting clients since 2010.  I have references upon request.”

The article reports that three clients complained about the services (or lack of services) that Robinson provided. 

Second, notice now the Mississippi criminal statute attempts to define the “practice of law.”  Certainly, the legislature has the authority to define what constitutes practice for purposes of the criminal conduct.  However, as discussed below, it is the judiciary that has the ultimate responsibility for determining who is admitted to practice, who is disbarred, and what it means to practice law.  Legislative interference in this area raises separation of powers concerns.

[1] Ashley Mott, “Calhoun Woman Accused of Practicing Law Without License,” News Star (Aug. 29, 2018).  A special thanks to Ms. Abbey Barton (’19) for bringing this article to my attention.