LA City Attorney on Brown Act, upon which Davis Stirling is based. View Parts   2    3

What is the unauthorized practice of law?

California broadly defines the “practice of law” as dispensing legal advice or service, even if the advice or service does not relate to any matter pending before a court. * Legal Advice vs Legal Information * Shouse Law *    (Mickel v. Murphy (1957) 147 Cal.App.2d 718, 721.)    

Advising boards on how the statutes pertain to them or what actions would violate the law or the governing documents. * Supreme Court opinion.

1.  Advising boards about rights, duties and liabilities. That includes but is not limited to:

  • Interpreting the Davis-Stirling Act,
  • Interpretation of contract provisions,
  • Disputed maintenance and repair issues,
  • Settlement issues.

2. Preparing documents that alter rights, duties and liabilities. Managers and management companies can prepare documents that are incidental to the regular course of their business. Anything beyond that must be prepared by legal counsel. That includes but is not limited to:

  • Amendments to CC&Rs, Bylaws, and Articles of Incorporation,
  • Contracts and contract provisions,
  • Election rules,
  • Rules enforcement policies,
  • Settlement agreements, and

 

What is “Advice?”

1ato give (someone) a recommendation about what should be done to give advice to Her doctor advised her to try a drier climate.
 
bCAUTIONWARN advise them of the consequences
cRECOMMEND advise prudence
 
2to give information or notice to INFORM  advise them of their rights

intransitive verb

1to give a recommendation about what should be doneadvise on legal matters
2to talk with someone in order to decide what should be done CONSULT advise with friends  Webster * CA Courts
 
What if it’s just Information?
 
See the CA Courts treatise on this. 
 

Violation of the BJR.
Business Judgment Rule

The hourly rates for HOA lawyers typically range from $175 to $350, whereas legal advice from a manager is free. It is understandable that boards would try to save money by seeking free legal counsel from their managers. However, doing so exposes directors to significant risk. By statute, directors are protected from personal liability for errors in judgment if they follow the Business Judgment Rule, which requires that decisions by directors be:

  1. In good faith,
  2. In a manner which the director believes to be in the best interests of the corporation, and
  3. With such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. (Corp. Code §7231(c).)

If a board relies on legal counsel from a manager and things go awry, directors will have difficulty convincing a jury that seeking legal advice from a manager was prudent.     Davis Stirling.com Los Angeles County Bar Assoc. – lacba.org

Legal Document Assistant

It is unlawful for any person engaged in the business or acting in the capacity of a legal document assistant or unlawful detainer assistant to do any of the following:

(d) Provide assistance or advice which constitutes the unlawful practice of law pursuant to Section 6125, 6126, or 6127.

(e) Engage in the unauthorized practice of law, including, but not limited to, giving any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.  §6411

 Unlawful Practice of Law [6125 – 6133]

Legal advice refers to the written or oral counsel about a legal matter that would affect the rights and responsibilities of the person receiving the advice. In addition, actual legal advice requires careful analysis of the law as it applies to a person’s specific situation – as opposed to speculation based on generic facts. From a legal standpoint, the giving of legal advice is tantamount to the practice of law, In a nutshell, legal advice has the following characteristics:

  • Requires legal knowledge, skill, education and judgment
  • Applies specific law to a particular set of circumstances
  • Affects someone’s legal rights or responsibilities
  • Creates rights and responsibilities in the advice-giver

Unlike legal information – such as information posted on a street sign – legal advice proposes a specific course of action a client should take. For instance, it’s the difference between telling someone what to do (legal advice) as opposed to how to do it (legal information). Examples:

  • Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person
  • Negotiating legal rights or responsibilities on behalf of a person
  • Speculating an outcome
  • Selecting or filling out specific forms on behalf of a client

– See more at: hirealawyer.findlaw.com/

  12 page booklet from CA Courts Legal Advice vs Legal Information

Supreme Court of Florida
Supreme Court of Florida
florida.oral.argument
Oral Argument before Florida Supreme Court

4 comments on “Unlawful Practice of Law – No Free Legal Advise

      • two main points that I see:

        1. There is an item in an “Ethics Agreement” that has not been processed yet, but it scheduled to be. I am not sure who drafted it, but it states that if a Board Member disagrees with the “resolution of a matter” or it’s terms, that the Board Member must confine their comments and discussion to an Executive Session Meeting, and that they shall keep the contents of the meeting confidential.

        This seems to possibly reference topics not contained in CA Civil Code 4935, because it seems unlikely that a Board Member might have a disagreement in direct relation to one of the authorized topics in CA Civil Code 4935. If it does intend to “cover” unauthorized topics (as well as authorized), not only does it seem to ask Board Members to agree to break the above named law in the future by agreeing to only discuss those topics in Executive, it seems to also take away a board member’s right to bring up a past action/decision of the board with the intent to ask the board to rescind or reconsider an action or motion (that last part is Robert’s Rules of Order, which we have officially adopted in our By-Laws “to govern all our corporate proceedings”)

        Text: “In debate, a member cannot reflect adversely on any prior act of the society that is not then pending, unless a motion to reconsider, rescind, or amend it is pending, or unless he intends to conclude his remarks by making or giving notice of one of these motions.” (RONR, 11th ed., pg. 393)”

        I think the meaning of the above excerpt from RONR is pretty clear, and does not mention keeping anything a secret, or confining such discussion to Executive, it just shows the parmeters in which such a request can be made.

        2. If the “Ethics Agreement” was prepared by an attorney, I am not sure what to think of this issue that seems like a fairly significant blunder, but if it was not prepared by an attorney, which is what I suspect, does that mean that whoever did prepare it is possibly guilty of practicing law without a licence?

        • We don’t know who prepared the ethics agreement and if they charged for it? IMHO and I’m only allowed to give information, not advice, one can prepare their own documents, so if a Board Member did it, it doesn’t look like it’s a violation of the unauthorized practise of law. Maybe business judgement rule?

          Successful UPL prosecution under section 6126 requires that the prosecutor prove the defendant sought to “practice law,” or advertised or held himself or herself out as entitled to practice law. (§6126(a).) Neither the Business and Professions Code, nor any other California statute, comprehensively defines the practice of law http://caught.net/pdf/uplpublic.pdf

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