Information on the crime of unauthorized practice of law, also called practicing law without a license, is found at California Business and Professions Code sections 6125, 6126(a), and 6126(b). This article serves as a brief overview of the law, the penalties, and the defenses related to the crime of unauthorized practice of law. This information should not be treated as a substitute for legal advice from a licensed attorney. If you have been charged with a crime, including the crime of unauthorized practice of law, contact a licensed criminal defense lawyer without delay.

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The Law

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BP 6125: No person shall practice law in California unless the person is an active licensee of the State Bar.

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BP 6126(a): Any person advertising, or holding herself out as practicing, or entitled to practice law, or otherwise practicing law, who is not an active licensee of the State Bar is guilty of a practicing law without a license (BP 6126(a) Abbrev.).

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BP 6125(b): Any person who has been involuntarily enrolled as an inactive licensee of the State Bar, or whose license has been suspended, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds herself out as practicing, or otherwise entitled to practice law, is practicing law without license (BP 6126(b) Abbrev.).

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Note: What is considered practicing law is not always clear. However, it is clearly the practice of law to do any of the following: Represent another person’s legal interest, attend court or an administrative proceeding as another person’s legal representative, draft legal contracts or stipulations for another person or entity, litigate a legal position for another person or entity, draft legal arguments for another person or entity, advise another person or entity as to a legal position, and more.

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Examples of practicing law without license are usually found among the following scenarios:

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• Students of the Law: Law school students who have some legal education and want to use their legal knowledge to assist friends or family who cannot otherwise afford an attorney. A well-minded law school student who merely refers another person to a particular helpful law or statute, without more, is probably not “practicing law” under BP 6125(b). However, when unlicensed law school students draft legal documents for another person, give legal advice to another person, file legal documents in court, advertise themselves as being a licensed attorney, appear in court for another person, or even pretend to be lawyers, while knowing that another person might rely on that false representation, is violating BP 6125.

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• Legal Secretaries: Legal secretaries and paralegals usually know more about the law in a particular field than the average person. For example, a legal secretary who has prepared hundreds of divorce filings for a family law attorney would know a great deal more about divorce law than the average person. Legal secretaries and paralegals sometimes find themselves in violation of BP 6125 and 6126 when they attempt to assist a friend of family who might not be able to afford an attorney. These well-minded legal secretaries and paralegals are probably not in violation of BP 6125 or 6126 when they merely refer a person to documents related to the another person’s request. However, when a legal secretary or paralegal prepares a legal document for another person, gives legal advice to another person, falsely advertises that he or she is a licensed attorney, attends court for another person, or even pretends to be an attorney, when that representation is likely to be relied upon, is a violation of BP 6125 and 6126.

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Note: Legal document preparation alone and without legal advice, such as in family law document preparation, is not equal to the practice of law.

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• Disbarred or Suspended Attorneys: Disbarred or suspended attorneys sometimes find themselves in violation of BP 6126(b) when they continue to practice law despite the fact that California has revoked that privilege. It is probably not a violation of BP 6126(b) where the attorney is either unaware of her revoked or suspended law license, or where she has lingering advertisement of her status as a lawyer and where she is unaware that the advertisement remains in existence.

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The above listed examples represent some of the more common ways in which a person finds herself in violation of BP 6125, 6126(a), & 6125(b); but remember, anytime a person without a law license gives legal advice to another person is technically violating the law. This technicality can sometimes lead to some absurd results. Consider the following: A non-licensed attorney who tells another person to remain silent in the face of criminal accusations is, technically, giving legal advice without a law license in violation of BP 6125. For this reason, whether or not a person is practicing law without a license is viewed in the totality of the circumstances. With that said, some types of conduct are clearly in violation of BP 6125, including appearing on behalf of another person as the other person’s legal representative, especially in any court of law.

 

Note: The word “attorney” means to legally act or stand in the place of another (Fr.) or to transfer authority to another person (Latin). Perhaps no place more clearly demonstrates that transfer of legal authority than when a person speaks for another person or entity in court.

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Note: It is not a violation of BP 6125, 6126(a), or 6126(b) for a person to represent himself or herself in a legal matter. For example, many litigants involved in uncontested matters of divorce do not use the services of a divorce attorney; rather, the litigants in these situations commonly represent themselves as either pro se or pro per litigants (Pro per meaning "for one's self" Lt.)

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The Penalties

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Incarceration: BP 6126(a) is classified as a misdemeanor. If found guilty of the unauthorized practice of law pursuant to BP 6126(a), the defendant could face up to 180 days in a county jail. BP 6126(a) is charge where the defendant was never licensed to practice law in California.

 

Note: BP 6126(b) is charged either a misdemeanor or as a felony (wobbler). When BP 6126(b) is charged as a misdemeanor the defendant could face up to 180 days in the county jail. When BP 6126(b) is charged as a felony the defendant could face up to 3 years in the county jail.

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Note: Triad sentencing in BP 6126(b) cases is 16 months, 2 years, or 3 years of jail depending on the presence of any mitigating or aggravating sentencing factors. This means that the judge could sentence the defendant to the mitigated jail term (16 months), the presumptive jail term (2 years), or the aggravated jail term (3 years) depending on the facts of the case, the defendant’s criminal history, and more. This assumes the defendant is not granted a probation sentence after a conviction of BP 6126(b). Sometimes, a misdemeanor jail sentence associated with the unauthorized practice of law may be served out-of-jail and on work release even when the defendant is not granted a probation sentence (See probation sentence below).

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Probation Sentence: A probation sentence is an alternative to jail that is available in some BP 6126(a) and 6126(b) cases. A probation sentence includes a period of supervision for the defendant. That supervision is either provided by the court (misdemeanor cases) or by a probation officer (felony cases). Probation sentences come with terms (conditions) of probation that must be obeyed by the defendant. Failure to obey terms of probation could lead to a probation violation.

 

In some cases, a probation sentence can include a short jail sentence as a term of probation; however, when a jail sentence is ordered as a term of probation in most BP 6126(a) or 6126(b) cases, the defendant may usually serve that jail sentence alternatively on an out-of-custody work release or house arrest program.

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PC 1170(h) Sentencing: New California law allows for some felony incarceration sentences to be served in a county jail (as opposed to a state prison). Felony BP 6126(b) is one of those felonies. As such, if the defendant is not granted a probation sentence after a conviction for BP 6126(b), he may still be allowed to serve his incarceration in a local county jail. Additionally, any jail sentence ordered after a conviction for felony BP 6126(b) might be served partially in jail and partially out of jail on work release (split sentence), or the jail sentence might not have to be served at all, so long as the defendant complies with certain out-of-custody conditions (suspended sentence). Whether or not the court allows a split or suspended sentence after a conviction for felony BP 6126(b) is usually determined by the defendant’s criminal history, the egregiousness of the crime, the disposition of any plea agreement with the district attorney, and more. For more information, see PC 1170(h) Sentencing.

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Strike Offense: The crime of unauthorized practice of law is not considered a serious or a violent offense as those terms are defined in the penal code (PC 1192.7 Serious Offenses & PC 667.5 Violent Offenses); therefore, BP 6126(b) is not considered a strike offense under California's Three Strikes Law.

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Additional Penalties: In addition to any possible incarceration, if found guilty of BP 6126(a) or 6126(b), the defendant could face any of the following punishments: loss of the right to own or possess a firearm (felony cases), loss of the privilege to practice in a profession (doctor, dentist, therapist, psychologist, nurse, lawyer, etc.), fines, court fees, restitution, civil lawsuits, loss of the right to enter the armed services (Space Force, Navy, Air Force, Army, Marines), possible deportation from the United States (for non-US citizens), and more.

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The Defenses

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The most common defenses to a charge of practicing law without a license include: statute of limitations (1 year for misdemeanor and 3 years for felony BP 6126 cases), coerced confession, mistake of fact, illegal search and seizure, and more.

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Note: The term practicing law can be confusing as to what will qualify as a violation of the statute. Clearly, standing in court and speaking for another person in front of a judge is practicing law. The same could be said for preparing and filing legal briefs on behalf of another person or drafting any type of contract for another person; however, court-running (filing documents for lawyers) and document preparation alone without legal advice are not usually considered practicing law, even though those types of activities are practiced by licensed attorneys every day. The ambiguity in what it means to practice law can support good arguments for defense in many cases.

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Important: It is not a defense to a charge of practicing law without a license to prove that the defendant did not receive compensation for his “legal” work. It is also not a defense to any BP 6126 crime to prove there is no injury to the victim or that no person actually relied on the defendant’s “legal” advice or advertising.

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Contact our legal team any day of the week to learn more about common defenses to BP 6126 charges. We offer free consultations for anyone charged with the unauthorized practice of law (aka practicing law without a license). We have successful handled hundreds of misdemeanor and felony criminal cases in San Bernardino County. Call today!

 

909-913-3138

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