In California, only attorneys licensed with the State Bar Association are permitted to practice law. The unauthorized practice of law is a crime under Business & Professions Code 6125. A conviction is punishable by
- up to one year in county jail and
- a fine of up to $1000.00.
The California crime of unauthorized practice of law is not always well-known. Many people are not aware that practicing law—or just representing oneself as a lawyer— without an active bar membership or other authorization can lead to serious criminal penalties in California. 1 2
Examples
Criminal penalties for unauthorized practice of law could be assessed in, for example, the following situations:
- A recent law school graduate who is studying for the California bar exam enters into a deal with a friend who is starting a company: she will help him draft legal documents for his company in exchange for a free room in his apartment.
- A paralegal who works for a busy litigation attorney drafts and files a litigation pleading for him, without him reviewing it first, on a day when he is traveling and unavailable; and
- A trusts & estates attorney who has been suspended from California State Bar membership continues to do some legal practice work for her clients in order to finish wills and estate plans she began for them earlier.
Penalties
The penalties for unauthorized practice of law in California—set out in Business & Professions Code 6126—are surprisingly harsh.
A non-lawyer who presents him/herself as an attorney, or practices law, faces California misdemeanor penalties. These may include a fine of up to one thousand dollars ($1,000), up to one (1) year in county jail, or both.3
And the penalties are even steeper for former attorneys who have
- been involuntarily shifted to “inactive” membership in the State Bar,
- been suspended from membership in the State Bar,
- been disbarred, or
- resigned from the State Bar of California with criminal charges pending.4
In these cases, unauthorized practice of law is a wobbler in California law—which means it may be charged as a misdemeanor OR a felony. The potential felony jail sentence can go as high as three (3) years.5
Legal defenses
Unauthorized practice of law charges often take people by surprise. While defendants often have a legal education or some experience with the legal system, they are frequently unfamiliar with the California criminal justice system.
That is where an experienced California criminal defense attorney can come in handy. S/he can help navigate both the criminal pretrial process and the criminal jury process.
And a good criminal defense lawyer understands the common legal defenses to unauthorized practice of law charges that can help get the charges dismissed or get you acquitted. These include:
- Your actions didn’t meet the legal definition of practicing law; and
- You didn’t know you had been involuntarily placed on inactive bar membership status.
In order to help you better understand the law, our California criminal defense attorneys will address the following:
- 1. How does California law define the unauthorized practice of law?
- 2. What are the penalties under Business & Professions Code 6126?
- 3. What are the most common defenses?
- 4. Related Topics
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Practicing law—or just representing oneself as a lawyer— without an active bar membership or other authorization can lead to serious criminal penalties
1. How does California law define the unauthorized practice of law?
The crime of unauthorized practice of law in California consists simply of:
- Either advertising or holding oneself out as practicing or entitled to practice law, OR actually practicing law,
- While one is not an active member of the California State Bar or otherwise authorized to practice law by a statute or court rule.6
This sounds simple enough—but, in fact, some of the terms in the legal definition of unauthorized practice of law require further explanation.
Practicing law
The California Business & Professions Code does not provide a definition of “practicing law.” But California courts have determined that it includes:
- Performing legal services in court cases/litigation,
- Providing legal advice and counsel, and
- Preparing legal instruments and contracts that secure legal rights—even if the matters involved don’t have anything to do with lawsuits or the courts.7
Example: Eleanor failed the California bar exam on her first try and is studying to take it a second time. She plans to open up a solo practice after she passes the bar.
In order to start drumming up business, she makes contact with people on the internet who have legal questions and offers them her advice on those questions.
Even though Eleanor is not representing anyone in court, she is a non-attorney offering legal advice—and so may be committing the crime of unauthorized practice of law.
Here are some concrete examples of activities that California courts have determined constitute the unauthorized practice of law, punishable under Business & Professions Code 6126, when they are done by non-lawyers:
- Creating and selling subscriptions to a software program that will prepare bankruptcy filings for customers;8
- Representing people in state administrative hearings (such as professional license suspension proceedings);9
- Giving advice about the law of other states or a foreign country;10 and
- Preparing stipulations and releases.11
Advertising or holding oneself out as authorized to practice law
It is important to note that criminal penalties for unauthorized practice of law in California apply not just to the actual practice of law—but also to the act of holding oneself out as authorized to practice law.12
In other words, you can be guilty of the unauthorized practice of law even if you have not actually engaged in any legal work.
Example: Scott was a practicing lawyer for several years before starting a successful trucking company. He has let his state bar membership lapse to “inactive” status.
Scott is trying to get his child admitted to a prestigious private school. As part of the application, he tells the school that he would be happy to provide it with “pro bono” (free) legal advice if his son is admitted.
Technically, Scott may have just committed the crime of unauthorized practice of law—since he inaccurately represented that he was authorized to practice law in California.
While one is not an active member of the California State Bar
It also bears repeating that, in order to practice law in California, you must either
- be an active member of the California State Bar, an administrative arm of the California Supreme Court, or
- be authorized to practice law by another statute or court rule (such as the rule permitting California companies to hire in-house lawyers who are members of other states’ bars13).
Otherwise, you are committing the offense of practicing law without a license.14
If you are not a member of the California State Bar or otherwise authorized to practice law, it doesn’t matter whether you
- have a law degree,
- used to be a member of the California State Bar, or
- are a member of the bar of another state or a foreign country.
Knowledge that you have been involuntarily placed on inactive status
For some California lawyers accused of unauthorized practice of law, there is a requirement that you knew that you were on inactive status and so ineligible to practice law. If the prosecutor can’t prove that you acted knowingly, you will not be guilty of this crime.15
This requirement of knowledge applies only to lawyers who:
- Have been involuntarily placed on inactive status; and
- Were placed on inactive status after a “default” in their disciplinary proceedings—that is, they failed to file an answer to the notice of disciplinary charges, or failed to show up at their disciplinary proceeding before the California State Bar Court.16
2. What are the penalties under Business & Professions Code 6126?
The penalties for practicing law without a license in California vary depending on whether you are
- someone who has never been admitted to the California Bar, or
- someone who was once a member of the California State Bar but has lost your active membership status involuntarily.17
2.1. Unauthorized practice of law by non-lawyers
For people who have never been admitted to the California State Bar (or let their membership lapse voluntarily), unauthorized practice of law is a misdemeanor. The potential penalties include:
- Misdemeanor (summary) probation ;
- Up to one (1) year in county jail; and/or
- A fine of up to one thousand dollars ($1,000).18
In addition, if you are convicted of unauthorized practice of law in California a second time—and any subsequent times—you are required to serve at least ninety (90) days in county jail, unless the judge finds that this is an “unusual case” where the interests of justice would not be served by such a sentence.19
2.2. Unauthorized practice of law by suspended or disbarred lawyers
California law imposes a harsher sentence for unauthorized practice of law by people who were formerly licensed attorneys and members of the California State Bar but have
- been suspended from membership,
- been disbarred,
- resigned with criminal charges pending, or
- been involuntarily enrolled as an inactive member (for example, because of mental illness, a drug or alcohol problem, or a finding that the attorney’s conduct poses a threat of harm to the interests of his/her clients).20
For people in these categories, unauthorized practice of law is a wobbler. This means that a prosecutor may choose to charge it as either a misdemeanor or a California felony, depending on the defendant’s criminal history and the circumstances of the case.21
If it is charged as a misdemeanor, this kind of unauthorized practice of law is punishable by up to six (6) months in county jail.22
But if it is charged as a felony, potential penalties will include:
- Felony (formal) probation ;
- Sixteen (16) months, two (2) years or three (3) years in county jail; and/or
- A fine of up to ten thousand dollars ($10,000).23
Example: Ramona, a real estate & foreclosure attorney, is charged with mortgage fraud for activities related to her work with homeowners facing foreclosure. While she is fighting the charges, the State Bar places her on involuntary inactive status.
Because she believes she is being wrongfully charged with a crime, Ramona continues to represent clients and help them fight for their rights.
But this just leads her to be charged with the unauthorized practice of law. She is eventually acquitted of mortgage fraud—but she is convicted of unauthorized practice of law and ends up with a felony penalty of 2 year in jail!
3. What are the most common defenses?
Most people charged with unauthorized practice of law in California know something about some area of law—but many of them are unfamiliar with criminal law and the criminal court system. An experienced criminal defense attorney is an invaluable asset when you are facing charges as serious as these.
Some of the legal defenses that an attorney can help you use to fight unauthorized practice of law charges include:
Your actions didn’t meet the legal definition of practicing law
According to Pasadena criminal defense attorney Neil Shouse24:
“Determining whether certain activities constitute “practicing law” can be tricky—especially nowadays. Companies like Nolo and LegalZoom are using the internet to help people avoid the need to hire a traditional lawyer. Meanwhile, lawyers are under increasing pressure to cut costs for their clients, which can lead to creative staffing solutions in which non-lawyers play a big role.”
California law provides a fairly ambiguous, non-specific definition of “practicing law.”25 If the behavior you are accused of is not the traditional “lawyering” that consists of representing clients in front of a judge or jury—then you may have room to argue that you should not be convicted of unauthorized practice of law.
You didn’t know you had been involuntarily placed on inactive bar membership status
As we discussed above, some California attorneys are hit with unauthorized practice of law charges after they have been placed on inactive status due to “defaulting” in the attorney discipline process—that is, not responding to a notice or failing to show up at their proceeding.26
In these particular cases, the prosecutor is required to prove that you knew you were practicing law, or holding yourself out as able to practice law, without authorization.
Proving knowledge can be quite difficult—and prosecutors know it. In these cases, it may be possible to get the charges dismissed.
Note that barred attorneys in one state may be able to practice law in another state on a limited basis through the pro hac vice process.
4. Related Topics
Other topics in California criminal law that may be of interest to someone facing unauthorized practice of law (BPC 6125) charges include:
4.1. Unauthorized practice of medicine
As with the unauthorized practice of law, California law also makes the unauthorized practice of medicine a crime.27 In this state, you may not practice, or advertise yourself as practicing, any kind of healing or treatment without an appropriate license.28
Unauthorized practice of medicine is in all cases a wobbler in California. If it is charged as a misdemeanor, it may be punished by one (1) year in county jail. If it is charged as a felony, it can earn a defendant
- sixteen (16) months,
- two (2) years or
- three (3) years in prison.29
4.2. Criminal convictions and attorney discipline in California
Many unauthorized practice of law cases occur after a California attorney has faced attorney discipline due to a criminal conviction.
California attorneys typically face disbarment when they are convicted of crimes involving moral turpitude.30 This includes most California fraud crimes—and a long list of other offenses as well.
But they may also face disbarment or suspension of their license for “other misconduct warranting discipline,” in the discretion of the Supreme Court.31
Also see the California Rules of Professional Conduct and Professional Responsibility and the American Bar Association (ABA).
Legal References:
- California Business & Professions Code 6125 – Necessity of active membership in state law [to avoid unauthorized practice of law charges]. (“No person shall practice law in California unless the person is an active member of the State Bar.”)
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties. (“(a) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record. (b) Any person who has been involuntarily enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, 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 himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or in a county jail for a period not to exceed six months. However, any person who has been involuntarily enrolled as an inactive member of the State Bar pursuant to paragraph (1) of subdivision (e) of Section 6007 and who knowingly thereafter practices or attempts to practice law, or advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or in a county jail for a period not to exceed six months. (c) The willful failure of a member of the State Bar, or one who has resigned or been disbarred, to comply with an order of the Supreme Court to comply with Rule 9.20 of the California Rules of Court, constitutes a crime punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code or in a county jail for a period not to exceed six months. (d) The penalties provided in this section are cumulative to each other and to any other remedies or penalties provided by law.”)
- See same.
- See same.
- See same. See also Penal Code 1170(h) PC. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense [including unauthorized practice of law] shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties, endnote 2, above.
- People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535. (“While these provisions have particular relation to the practice of the law in courts of justice, the term has not been generally thus confined. In the case of Eley v. Miller, 7 Ind. App. 529, 34 N. E. 836, which involved the violation of a statute prohibiting county auditors from practicing law, the court said: ‘As the term is generally understood, the practice of the law [including unauthorized practice of law, potentially] is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.’”)
- In re Reynoso (9th Cir. 2007) 477 F.3d 1117.
- Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61.
- Bluestein v. State Bar (1974) 13 Cal.3d 162, 174.
- In re Garcia (9th Cir. BAP 2005) 335 B.R. 717, 728.
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties, endnote 2, above.
- See California Rule of Court 9.46 – Registered in-house counsel [allowing in-house counsel to avoid unauthorized practice of law charges].
- California Business & Professions Code 6125 — Necessity of active membership in state law [to avoid unauthorized practice of law charges], endnote 1, above.
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties, endnote 2, above.
- See same. See also Business & Professions Code 6007(e). Involuntary treatment or confinement; involuntary inactive enrollment [as basis for unauthorized practice of law charges]; restoration to capacity; effect on disciplinary investigations or proceedings; membership fees not to accrue; interim remedies.
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties, endnote 2, above.
- See same.
- See same.
- See same. See also Business & Professions Code 6007. Involuntary treatment or confinement; involuntary inactive enrollment [as basis for unauthorized practice of law charges]; restoration to capacity; effect on disciplinary investigations or proceedings; membership fees not to accrue; interim remedies.
- Business & Professions Code 6126 – Unauthorized practice [of law] or attempted practice; advertising or holding out; penalties, endnote 2, above.
- See same.
- See same. See also Penal Code 1170(h) PC, endnote 5, above. See also Penal Code 672 PC — Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [including felony unauthorized practice of law], in addition to the imprisonment prescribed.”)
- Our Pasadena criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending a variety of California white-collar crimes.
- People v. Merchants Protective Corp. (1922) 189 Cal.531, endnote 7, above.
- See Business & Professions Code 6007(e). Involuntary treatment or confinement; involuntary inactive enrollment; restoration to capacity; effect on disciplinary investigations or proceedings; membership fees not to accrue; interim remedies.
- Business & Professions Code 2052 – 2052. Practice, attempt, or advertising without certificate; punishment; conspiracy or aiding and abetting; punishment. (“(a) Notwithstanding Section 146, any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision. (c) The remedy provided in this section shall not preclude any other remedy provided by law.”)
- See same.
- See same.
- Business & Professions Code 6101 – Conviction of crime; notice of pendency of action; record of conviction; proceedings. (“(a) Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension [and hence to unauthorized practice of law charges]. In any proceeding, whether under this article or otherwise, to disbar or suspend an attorney on account of that conviction, the record of conviction shall be conclusive evidence of guilt of the crime of which he or she has been convicted.”)
- In re Kelley (1990) 52 Cal.3d 487, 494. (“Our inquiry into the possible grounds for discipline [including suspension or disbarment that could then lead to unauthorized practice of law charges] does not end with the foregoing statutory language [Bus & P C 6101 and 6106]. Although the review department found petitioner’s conduct did not involve moral turpitude, it concluded the conduct constituted ‘other misconduct warranting discipline. ‘ The ‘other misconduct warranting discipline’ standard permits discipline of attorneys for misconduct not amounting to moral turpitude as an exercise of our inherent power to control the practice of law to protect the profession and the public.”) SEE ALSO California Business and Professions Code Section 6100 (“For any of the causes provided in this article, arising after an attorney’s admission to practice, he or she may be disbarred or suspended by the Supreme Court. Nothing in this article limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.”)