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Ethically Speaking MDP or UPL?: SOS! by Charles Slanina, Esquire The line between Multi-Disciplinary Practice and
the Unauthorized Practice of Law can be fine to the point of being
invisible. The current patchwork of UPL decisions lags behind
the reality of modern practice. The admission of attorneys to practice and the exclusion
of unauthorized persons from practice lie within the exclusive
province of the Delaware Supreme Court. Delaware Optometric
Corp. v. Sherwood, Del. Supr., 128A. 2d 812 (1957). Legislation
authorizing the Supreme Court to establish and maintain standards
for the Bar are merely "legislative recognition of the inherent
powers of this Court." In Re Member of Bar, Del. Supr.,
257 A. 2d 382, 383 (1969). The power of the Court to regulate
the practice of law is plenary. In Re Clyne, Del. Supr.,
581 A. 2d 1118 (1990); In Re Infotechnology, Del. Supr.,
582 A. 2d 215 (1990). The Delaware Supreme Court adopted the following
definition of the practice of law in Delaware State Bar Ass’n
v. Alexander, Del. Supr., 386A. 2d 652, 661 (1978):
Since then the Court has ruled that
"[w]hile a natural person may represent himself or herself
in Court even though he or she may not be an attorney licensed to
practice, a corporation, being an artificial entity can only act
through its agents and, before a court, only through an agent
duly licensed to practice law." Transpolymer Industries,
Inc. v. Chapel Main Corp., Del. Supr., No. 284, 1990, Horsey,
J. (ORDER)
The Court subsequently found that a judgment obtained
by a realty company in an action for possession and back rent
was void because the representative of the corporation who was
present at the trial was not an attorney. Gibson v. North Delaware
Realty Co., Del. Supr., No. 95A-08-001-JOH (June 20, 1996). It is settled Delaware law that the Industrial Accident
Board that will not permit an individual who is not an attorney
to present claims on behalf of Claimants because such action constitutes
the unauthorized practice of law. Hall v. State, Del. Supr., No.
99A-08-007, Toliver, J. (March 10, 2000) More recently, the Court has determined that Federal
Legislation requiring "due process" hearings for children
with disabilities seeking specialized services from the public
schools, does not permit representation of families by non-attorneys.
The Court ruled that it was not bound by a letter from the General
Counsel of the United States Department of Education expressing
his opinion that such representation was allowed. Marilyn Arons and Ruth Watson claimed that they
possessed special knowledge and training with respect to problems
of children with disabilities and that those children could not
otherwise obtain representation. The Court was unpersuaded even
though the Individuals with Disabilities Education Act states
that a party to such a due process hearing†"shall be afforded
… the right to be accompanied and advised by counsel and
by individuals with special knowledge or training with respect
to the problems of children with disabilities". The parties
also claimed that Delaware is the sole state which precludes non-lawyer
representation under these circumstances. In Re: Arons,
Del. Supr., 756A, 2d 867 (2000). In theory, there is a federal preemption argument
where Congress permits agencies (immigration, social security,
etc.), to allow representation or assistance by non-attorneys.
However, when our Court says that their power to regulate the
practice of law in Delaware is "plenary", they obviously
mean it. Some additional guidance can be gained as to what
constitutes the Unauthorized Practice of Law (or by inference,
the practice of law) by the Court’s pronouncement when asked
for an advisory opinion by a suspended attorney. That attorney
was advised that he could work in a law firm as a paralegal or
law clerk but that any client contact was prohibited. Arguably,
this was a special case limited to the facts. As the Court stated,
"perception is often reality. It would be very difficult
the members of the public to understand (the attorney’s)
status if he were permitted such contacts" at pg. 25. I suggest
that a narrow reading of this opinion would allow non-attorneys
to do more than the suspended attorney was permitted. Where does all this leave us? Technically, any attorney
not admitted by pro hoc vice, who comes to Delaware to take or
defend a deposition is engaged in UPL. In representing a Delaware corporation, do you engage
in UPL by going to the corporate headquarters of that corporation
in New York to advise them of Delaware law? Should it make a difference
if the advice or information is given in person or by phone? The Office of Disciplinary Counsel has taken the
position that Pennsylvania attorneys who attempt to settle Personal
Injury actions in Delaware before suit is filed, are engaged in
UPL in Delaware. On the other hand, they have also taken the position
that a Delaware attorney who participates in a private arbitration
held in another state does not engage in UPL in that state. In
neither case was there a readily available means for a pro
hoc vice admission since the legal services were performed
before a Court was available to grant such an admission. All of these issues are compounded by the increasing
multi-state and even international nature of the practice of law.
The current regulation also fails to address the use of the internet
to obtain and dispense legal services. Absent a comprehensive pronouncement from our Court
on these issues (which will not, of course, not provide protection
outside of our borders) we must await the efforts of the ABA to
sort out these issues. "Ethically Speaking" is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association. Return to March 2002 Table of Contents.
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