Under Analysis- When is a lawyer a lawyer?

   All is quiet in the Levison Towers tonight. This is typical after a big firm function, and last week was no exception. The firm's Halloween party is one of the most anticipated events of fall. Some see it as a "pregame" to the more celebrated Christmas parties which are around the corner. Others really enjoy the opportunity to pretend to be something they are not.
   It is fitting that the Halloween season of make-believe occurs when it does. Two days after Halloween will be election day. Some would say that politicians stop pretending at that time and have to show us who they really are. I am glad that the masks come off, but more excited that the trick-or-treating for campaign funds will soon end. The respite will be brief. Politicians go back to fundraising the day after election day.
   Lawyers cannot pretend without some consequence. Barbara, the head of the litigation department, came to the party clad in pirate attire. She was chided for not dressing up because many view her as a pirate from 9 to 5 anyway. A timid young associate showed up in his suit and tie and claimed to be the "reasonable person" mentioned throughout the law. I wanted to wear my hip waders, but not as a costume. I spent the week up to my neck in documents and literally had to wade out between the piles of paper in my office to get to the free eats.
   Pretend lawyers have been in the news lately. It is a crime in almost every state to practice law without a license. (It is not a crime for a licensed lawyer to practice law poorly, but that is a different topic.) Unauthorized practice of law is prohibited to protect the public from the harm caused when a nonlawyer represents them in court or while drafting legal documents. Having slogged through law school, bar exams and continuing legal education credits, I of course support these laws. It hasn't escaped my notice however, that Bar Associations rather than defrauded clients are more likely to lodge complaints.
   Recently Marc Payen, a 28-year-old New Yorker was charged with scamming Haitian immigrants out of thousands of dollars. He met his hapless victims in United Nations Building, claiming to be an attorney with offices upstairs. The naturalization services he promised were never delivered. No word yet on whether he will be sent to Haiti to do his community service.
   My favorite pretend lawyer of the season is one "David Bomart." Not only is Mr. Bomart  a pretend lawyer, he is a pretend person. He doesn’t exist. Someone at SpongeTech company, or at least on their behalf, filed phony documents with Securities and Exchange Commission signed by Bomart. You may know SpongeTech from its stadium advertisements around the country. I tip my cap to SpongeTech. The documents which the nonexistent person pretending to be a lawyer filed were filled with references to nonexistent companies buying products from SpongeTech. Is it really the unauthorized practice of law for a fake person to pretend to be a lawyer and file fake documents with an agency that no one understands anyway? According to the real lawyers at the SEC, the answer is yes.
   Real lawyers are bound to codes of professional ethics. In most jurisdictions, these codes require practicing lawyers to report ethical breaches to the state bar association. Reporting pretend lawyers is certainly one of my ethical duties, but I confess that I have not reported on numerous occasions.   
   Municipalities in my home state are using "red light cameras" to catch lawbreakers who run lights. The cameras are a popular revenue source in this time of decreased government income. The cameras are typically owned by a vendor that receives a portion of the fines charged to lawbreakers, and fines are assessed without the safeguards one would expect in a criminal case. In fact, the car owner is presumed guilty and must prove his innocence. The fine is cleverly set in an amount much less than a real lawyer would charge in the case so most "lawbreakers" just pay the fines. Since the cameras are serving as prosecuting officer and judge, I say they are practicing law. While cameras have caused many lawyers to sweat, I have yet to see a camera with a law license.
    And then last week a client of mine told me that the settlement offer for his injury case was too low. He told me of his wife’s cousin’s plumber who had gotten twice that settlement amount for the same injury under the same circumstances. Without a lawyer. My first response was that my client should fire me and hire the plumber. Realizing that that would be encouraging the unauthorized practice of law, I kept my mouth shut. Instead, I asked my client to have his wife’s cousin's plumber call me so I could use the trial tips he would undoubtedly offer. My client decided to settle instead. Pretend lawyers may bluff, but they fold pretty quickly.

©2010  under analysis llc.    under analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He pretends to be an expert hunter and fisherman, but he is a real lawyer.  Comments or criticisms about this column may be sent c/o this newspaper or directly to the Levison Group via email at comments@levisongroup.com.

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