How do you define legal advice (for the purposes of prohibition of unqualified practice)?

Question

In many (perhaps most) jurisdictions there are prohibitions on unqualified persons providing legal services. The exact scope of the prohibitions many vary from jurisdiction to jurisdiction. Some jurisdictions may have a blanket prohibition on unqualified persons representing someone in court. Other jurisdictions may prohibit unqualified persons from representing for reward (but not prohibit free representation by unqualified persons). There may or may not be restrictions on what kinds of legal documents can be drafted by an unqualified person. My question is about legal advice. Are there any jurisdictions which prohibit unqualified persons from giving legal advice?

If there are any jurisdictions in which it is illegal for an unqualified person to give legal advice, how is "legal advice" defined in such jurisdictions for the purposes of the prohibition?

What prompts the question is that many ordinary activities could be considered to be the giving of legal advice. If your driving instructor tells you to stop at red lights because not stopping is against the law, on the face of it that is legal advice. But obviously any jurisdiction which prohibited unqualified legal advice would need to define "legal advice" in a way which did not catch such activities.

Note 1: Law SE does not offer legal advice and we all know broadly what is meant by legal advice in general - but I am not asking for a general definition. I am asking about a definition used in the law of any jurisdiction (if there are any) which prohibits the giving of legal advice in certain circumstances (e.g. by unqualified persons).

Note 2: I am aware that in England and Wales the giving of immigration advice by unqualified persons is subject to restrictions but that is a very specific area and does not give rise to the definitional problems which a general prohibition on giving all and any legal advice would.)

Answer 1

Jurisdiction washington.

RCW 2.48.180 gives the relevant prohibition, against "unlawful practice of law" (which is a crime). It specifically enumerates 5 categories:

(2) The following constitutes unlawful practice of law:

(a) A nonlawyer practices law, or holds himself or herself out as entitled to practice law;

(b) A legal provider holds an investment or ownership interest in a business primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business;

(c) A nonlawyer knowingly holds an investment or ownership interest in a business primarily engaged in the practice of law;

(d) A legal provider works for a business that is primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business; or

(e) A nonlawyer shares legal fees with a legal provider.

"Nonlawyer" is defined as either one who has limited authorization to practice law but exceeds that authorization, or who has no authorization to practice law, and "legal provider" is anyone operating within the scope of authorization of the state supreme court.

State court rule 24 generally holds that

The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law.

There are 4 listed subcases, hedged with the provision "not limited to"

(1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.

(2) Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).

(3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).

There are exceptions and exclusions for persons with limited licenses and those with other forms of authorization, but also an exclusion for

(4) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.

(5) Participation in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements.

(6) Providing assistance to another to complete a form provided by a court for protection under RCW chapters 10.14 (harassment) or 26.50 (domestic violence prevention) when no fee is charged to do so.

(7) Acting as a legislative lobbyist.

and especially

(11) Such other activities that the Supreme Court has determined by published opinion do not constitute the unlicensed or unauthorized practice of law or that have been permitted under a regulatory system established by the Supreme Court.

Since only the state supreme court is constitutionally authorized to regulate the practice of law, the legislature cannot redefine "practice of law".

The meaning of "practice of law" is further indirectly defined by this part of the rule:

(d) General Information: Nothing in this rule shall affect the ability of a person or entity to provide information of a general nature about the law and legal procedures to members of the public.

Hence Law SE is not illegal in Washington State. A relevant case that applies this exclusion is State V. Yishmael, where defendant argued that treating UPL as a strict liability crime

would criminalize the everyday actions of "bank tellers, receptionists, nurses, and police officers, all of whom explain legal principles to persons as part of their daily work"

but the court rejects this contention because

providing general information about the law is not, by definition, the practice of law. GR 24(d).

The driving instructor has therefore not engaged in the unlawful practice of law, when he says that it is against the law to ignore a stop sign: this is general information about the law.

The restriction against "giving legal advice" i.e. practicing law is indirectly related to the authorization requirement. The court only authorizes those who are admitted to the state bar association to practice law, and the state bar sets the standards for being "qualified".

Answer 2

How do you define legal advice?

According to this source:

Legal advice is the giving of a professional or formal opinion regarding the substance or procedure of the law in relation to a particular factual situation.

...

Legal advice is distinguished from legal information which is the reiteration of legal fact. Legal information can be conveyed by a parking meter, sign or by other forms of notice such as a warning by a law enforcement officer [or driving instructor].

In england-and-wales, it is a "legal activity" defined by s.12(3)(b)(i) of the Legal Services Act 2007, as being:

the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes

Answer 3

In New South Wales and Victoria, australia, the prohibition of unqualified legal services is covered by the Legal Profession Uniform Law.

The prohibition is set out in section 10(1) (emphasis added):

An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

Penalty: 250 penalty units or imprisonment for 2 years, or both.

"Engage in legal practice" is defined in section 6 as the following:

engage in legal practice includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy)

The use of the word "includes" means this definition is not meant to be exhaustive.

"Legal services" is further defined as:

legal services means work done, or business transacted, in the ordinary course of legal practice

And so the definition is circular: legal services is basically what a qualified legal practitioner ordinarily does.

Answer 4

Jurisdiction: england-and-wales

TLDR: The concept of legal advice as a legal activity lacks a narrow definition. However, in my view it excludes general statements of law (e.g. "Doing X is illegal") and is limited to the application of the law to particular cases (e.g. "In the specific circumstances of your case, you should do X because the law is Y").

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As noted in Rock Ape's answer, legal advice is a "legal activity" for the purposes of the Legal Services Act 2007 (albeit not a reserved legal activity hence it can be carried out by a layperson), and the definition there is fairly broad. Much legislation is deliberately phrased in this way in order to allow the law to be flexible and adaptable. In such cases the only way to narrow down the definition is to find a binding ratio in a court decision. As generic legal advice is not regulated in E&W my guess is that the issue hasn't arisen yet in the courts.

However, as you've noted in your question, the provision of certain specific types of legal advice is regulated in england-and-wales. While not directly applicable to the generic category of legal advice in the LSA 2007, I believe it is useful to examine the definitions of legal advice in these specific cases to see what the approach is. As far as I'm aware there are only two such types: immigration, and claims management.

Immigration advice

Section 84(1) of the Immigration and Asylum Act 1999 provides:

No person may provide immigration advice or immigration services unless he is a qualified person.

Section 82(1) defines immigration advice as:

[...] advice which — (a) relates to a particular individual; (b) is given in connection with one or more relevant matters; (c) is given by a person who knows that he is giving it in relation to a particular individual and in connection with one or more relevant matters; and (d) is not given in connection with representing an individual before a court in criminal proceedings or matters ancillary to criminal proceedings;

"Relevant matters" here simply refers to a list of topics (e.g. asylum claims, leave to remain) and so is not important for the purpose of defining what is meant by advice.

So, in the context of immigration, a mere statement such as "Doing X is illegal" or "In order to achieve Y, procedure Z must be followed" is not legal advice because it does not relate to a particular individual. On the other hand, if someone approaches you with the specific facts of their case and asks you what they should do in order to claim asylum, then you would be giving legal advice if you helped them in a non-generic way.

Claims management advice

Section 19(1) of the Financial Services and Markets Act 2000 provides:

No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is (a) an authorised person; or (b) an exempt person.

Section 22(1B) provides:

An activity is also a regulated activity for the purposes of this Act if it is an activity of a specified kind which (a) is carried on by way of business in Great Britain, and (b) is, or relates to, claims management services.

Section 419A(1) provides:

In this Act “claims management services” means advice or other services in relation to the making of a claim.

The specified claims management services are set out in Part 3B of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. There are 6 specified categories: personal injury, financial services, housing disrepair, specified benefits, criminal injury, and employment. The specified activities for each of these are set out in articles 89H, 89I, 89J, 89K, 89L, and 89M respectively. Each of those articles have a sub-paragraph which follow this pattern:

Each of the following activities is a specified kind of activity when carried on in relation to a [claims management] claim — (a) advising a claimant or potential claimant; [...]

While not as specific as for immigration advice, the approach is similar: it is only regulated advice if it is being given to a "claimant or potential claimant". So, a general statement of the position of the law to someone who is not a claimant or potential claimant, will not constitute regulated advice.

Generic legal advice

Turning back to the Legal Services Act 2007, and the wording at section 12(3)(b)(i) which was referred to in Rock Ape's answer:

the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes

It seems to me that the approach here is also similar to the above two cases. To be a "legal activity" the advice needs to be either "in connection with the application of the law" or "with any form of resolution of legal disputes". In my view this means that, as with immigration and claims management, there needs to be an application to the specific facts of a particular case. Generic statements of law which do not apply to specific cases will fall outside the definition.

For example, "running a red light is illegal" is merely a statement of what the law is. It is not an application of the law, nor does it involve the resolution of a legal dispute. On the other hand, if someone runs a red light and you advise them on what their defences might be or how to conduct their trial, that is both an application of the law to the specific circumstances, and it involves the resolution of a legal dispute.

Additional comments

As you made a number of comments on the other answers, I'll try to tackle a couple of those here.

If the instructor tells the learner driver in advance about what is legal I can see that that would be "legal information" under your definition. But if the driving instructor says that a particular fact which they have just witnessed is illegal, how is that not legal advice under your definition?

As noted above, trying to pin down a narrower definition in order to definitely resolve such dilemmas is problematic because only a court can interpret the legislation definitively. In my view, your second scenario still falls short of the definition because it is not advice. Google defines advice as "guidance or recommendations offered with regard to prudent future action." Telling someone that what they did is illegal is a statement of fact, not guidance or a recommendation.

There is no definition in E&W because there does not need to be.

That's not right. After all, the law does include certain types of legal advice within the definition of "legal activity". The reason for that is because section 24 of the Legal Services Act 2007 foresees that there may be a future need to make it a reserved legal activity by way of secondary legislation. No, the correct view is that the definition is exactly how Parliament intended it to be, and any narrowing of the definition is to be left as a matter for the courts.