5.06. Judicial Definitions of Unauthorized Practice of Law

One thing to keep in mind is that the definition of the practice of law is ultimately determined by the judiciary.  This is a separation of powers issue.  The ethics rules do not try to define what is the practice of law (although as noted above Rule 5.5 does exclude some things from the definition).  The Comment to Rule 5.5 makes this explicit: “The definition of the practice of law is established by law and varies from one jurisdiction to another.” Therefore, while the ethics rules (1) make engaging in the unauthorized practice of law unethical and (2) exempt certain activities from the practice of law, to find a definition of the practice of law, you must look to court cases.  The same is true of the statutory definition.  While a state legislature can pass a law stating what the legislative body believes is included in the practice of law, ultimately it is up to the courts to say what crosses the line into unauthorized practice.