12

John Smith is a US citizen who is ordinarily a resident of California who is not and never has been admitted to the bar in any jurisdiction. He is travelling in the UK, and gives legal advice on British law over the Internet to Jane Doe, another US citizen, who is in California.

Under the Legal Services Act 2007, giving legal advice is not a reserved activity and thus no crime is committed by Smith in the UK.

In California, however, practicing law without a license is an offence under sections 6125-6133 of the California Business and Professions Code. The relevant statute states:

No person shall practice law in California unless the person is an active member of the State Bar.

Smith is not physically in California. However, does giving advice over the Internet to a person in California amount to being punishable under this statute? Furthermore, do any of the following variations, or combinations thereof, substantially change the answer?

  • Smith gives legal advice on California law, not British law.
    • As a variation on this, Smith gives legal advice on California law to Doe, who is in Nevada, not California.
  • Smith is a US citizen who is ordinarily a resident of Massachusetts, and has never been to California.
  • Smith uses a different method of communication (e.g. a phone).

I suggest California as a jurisdiction for purely arbitrary reasons; if a different state is easier to answer for (or is unusual compared to the rest of the US), that would also be interesting to know.

4

It's a gray area. You won't know for certain until a case is tried by a court.

Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority.

Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you.

The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action.

  • 1
    While this may be useful practical advice (which I disagree with as this argument can be extended to practically any activity, on the grounds that it might vaguely touch on some part of some regulated industry), it doesn't answer my question at all; I am interested in case law or other statutes that might show whether or not Smith is likely to have committed a crime as a matter of law. – Samuel Front Jul 27 '15 at 21:49
  • 1
    @SamuelFront: I edited to make the answer easier to distinguish. I think your concern is driven by the fact that it leaves your hypothetical open to interpretation. Which it is, whether you like it or not. Agree or disagree. Part of the problem with interpretation is that you have asked a question about a regulation, not a statute. Regulations are written in the executive branch, not the legislature; and have some gray area in their interpretation. And, yes, this argument can be extended to "practically any [regulated] activity." But that's no reason to disagree. Is it? – Mowzer Jul 27 '15 at 22:27
  • such regulation may actually create scarcity of legal advices. that's something that legal lawyers often take advantage off. – user4951 Feb 1 '16 at 4:12
2

You have suggested an arbitrary jurisdiction, but jurisdiction determines the answer to this question. As formulated, your question depends on the interpretation of the phrase practice law in California in section 6125, as applied by the regulators and courts of California. Since you said that you are interested in case law in a comment on another answer, you should read the decision of the Supreme Court of California in Birbrower v. Superior Court, 949 P.2d 1 (Cal. 1998), which explained the term 'practice law in California' as follows:

Although the Act did not define the term "practice law," case law explained it as "the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure" ... Merchants included in its definition legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation ...

In addition to not defining the term "practice law," the Act also did not define the meaning of "in California." In today's legal practice, questions often arise concerning whether the phrase refers to the nature of the legal services, or restricts the Act's application to those out-of-state attorneys who are physically present in the state ...

In our view, the practice of law "in California" entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law "in California." The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.

Our definition does not necessarily depend on or require the unlicensed lawyer's physical presence in the state. Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law "in California" whenever that person practices California law anywhere, or "virtually" enters the state by telephone, fax, e-mail, or satellite. (citations omitted)

So, the concept of 'practising law in California' is a bit too complex to apply to your hypothetical example. It is far from clear that Smith is engaging in legal practice (which is not to say that he clearly isn't). Much more information about the relationship between Smith and Doe is needed, particularly if it is a commercial relationship.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.