UNAUTHORIZED PRACTICE OF
LAW
(FOURTH & THIRD DEGREE)
(N.J.S.A. 2C:21-22) model jury charge
Count
____ of the indictment charges the defendant with the offense of the
unauthorized practice of law. (Read the count from the indictment). The statute upon which this charge is based
reads in pertinent part:
A person is guilty of a crime...if the
person knowingly engages in the unauthorized practice of law.
In
order for you to find the defendant guilty of the unauthorized practice of law
the State must prove beyond a reasonable doubt each of the following four
elements:
(1) The defendant engaged in the practice of law;
(2) The defendant knew he/she was engaged in the practice of law;
(3) The defendant's conduct was not authorized by
law;
law.
The
first element that the State must prove is that the defendant was engaged in
the practice of law. A person is
considered to be practicing law when that person's conduct whenever and
wherever it takes place is of such a nature that legal knowledge, training,
skill and ability are required. This
definition of the practice of law is not limited to the conduct of cases in
court.[1] In this case the State specifically contends
that defendant engaged in the practice of law (state specific allegations made by State). You may not find that the defendant engaged
in the practice of law in some manner other than that as specifically alleged
by the State. You must consider whether
the State has proven the specific conduct charged beyond a reasonable doubt and
whether such conduct constitutes the practice of law as I have just defined it
for you. [If appropriate charge: Defendant alleges_______________________].
The
second element that the State must prove beyond a reasonable doubt is that the
defendant knew he/she was engaged in the practice of law. A person acts knowingly with respect to the
nature of his/her
conduct or the attendant circumstances if he/she is aware that his/her
conduct is of that nature or that such circumstances exist, or he/she is aware of a high probability of their existence. A person acts knowingly with respect to a
result of his/her
conduct if he/she is aware that it is practically certain that his/her
conduct will cause such a result.
Knowledge
is a condition of the mind which cannot be seen and can only be determined by
inferences from conduct, words or acts.
A state of mind is rarely susceptible to direct proof, but must
ordinarily be inferred from the facts.
Therefore, it is not necessary, members of the jury, that the State
produce witnesses to testify that an accused said he/she had a certain state of mind when he/she engaged in a particular act. It is within your power to find that such
proof has been furnished beyond a reasonable doubt by inferences which may
arise from the nature of his/her
acts and his/her
conduct, and from all he/she said and did at the particular time and place and from all
of the surrounding circumstances.
The
third element that the State must prove beyond a reasonable doubt is that the
defendant's conduct was not authorized by law.
An individual is authorized to practice law if that individual has
obtained a license to practice law issued by the Supreme Court of New Jersey
and is in good standing at the time of the conduct alleged by the State,[2] or
if that individual's conduct fits within the scope of a recognized exception
authorizing the practice of law without a license.[3]
The
fourth element that the State must prove beyond a reasonable doubt is that the
defendant knew that his/her
conduct was not authorized by law. I
have already defined knowingly and knowledge for you.
If
the State has proven each of these four elements beyond a reasonable doubt you
must find the defendant guilty of the crime of the unauthorized practice of
law. If the State has failed to prove
any of these elements beyond a reasonable doubt you must find the defendant not
guilty.
[Now
give the following Third Degree charge if appropriate]
If
the State has proven beyond a reasonable doubt the four elements of the
unauthorized practice of law you must consider if an additional element has
been proven beyond a reasonable doubt: that defendant [charge as appropriate]:
(1) Created or reinforced a false impression
that
the
person is licensed to engage in the practice
of
law; or
(2) Derived a benefit; or
(3) In fact caused injury to another.[4]
[Choose
as Appropriate]
You
must decide whether the State has proven beyond a reasonable doubt the
additional element that the defendant created or reinforced the impression that
he/she was licensed to engage in the practice of law, that the
impression was untrue, and that defendant did so knowingly. I have already defined knowingly for you.
[OR]
Benefit
derived means the loss resulting from the offense or any gain or advantage to
the actor, or co-conspirators, or any person in whom the actor is interested,
whether the loss, gain or advantage takes the form of money, property,
commercial interests or anything else the primary significance of which is
economic gain.[5] I have already
defined knowingly for you. You must
decide whether the State has proven beyond a reasonable doubt the additional
element that the defendant knowingly derived a benefit from engaging in the
unauthorized practice of law.
[OR]
For
present purposes, injury to another is defined as any ascertainable loss of
monies or property, real or personal, as a result of any action or inaction by
a person who knowingly engaged in the unauthorized practice of law. Proof that the injury was suffered is
sufficient; it is not necessary that the injury be knowingly caused.[6] You must decide whether the State has proven
beyond a reasonable doubt the additional element that defendant caused injury
to another by knowingly engaging in the unauthorized practice of law.
[RESUME
CHARGE]
If
the State has proved the additional element charged, as well as that defendant
engaged in the unauthorized practice of law, beyond a reasonable doubt, then
you must find the defendant guilty of the unauthorized practice of law while
having [choose appropriate alternative].
However, if you find beyond a reasonable doubt that defendant engaged in
the unauthorized practice of law, but that the State has failed to prove beyond
a reasonable doubt the additional element of [choose appropriate alternative], you must find defendant guilty,
instead, only of unauthorized practice of law.
Of course, keep in mind, as I told you previously, that if you find the
State has failed to prove beyond a reasonable doubt any of the elements of the
crime of the unauthorized practice of law, you must find defendant not guilty.
NOTE
The
practice of law can take so many forms that it is impossible to render an all
inclusive definition, and there are many exceptions to the general prohibition
on the unlicensed practice of law. Each
matter must be handled on a case by case basis, with the jury instructed to
view the conduct of the defendant and then determine if such conduct
constitutes the unauthorized practice of law.
The following is a list of some, but by no means all, of the possible
scenarios in which an unlicensed individual can "practice law"
without violating this criminal statute.
It
is important to note that these exceptions authorizing the unlicensed practice
of law often involve very limited circumstances, which must be clearly defined
for the jury. An excellent source
regarding these exceptions can be found at Chapter 39 of Michels, New Jersey
Attorney Ethics (Gann 2013). When
charging exceptions, the court must instruct the jury, as always, that the
burden remains on the State to prove beyond a reasonable doubt that defendant's
conduct was not authorized by law and that defendant knew that his/her
conduct was not authorized by law.
1.
Pro
Se. R.1:21-1(a) In re Baker, 8 N.J. 321, 339 (1951) N.J.
Comm. on Unauth. Pract. Op. 21 (Dec. 22, 1977), Unauth. Pract. Op. 13
(Jan. 9, 1975).
2.
Pro
Hac Vice. R.1:21-2.
3.
Real
party in action or guardian of that party. R.1:21-1(a).
4.
Law
school graduates. R.1:21-3(a).
5.
Third
year law students. R.1:21-3(b).
6.
Out
of State attorneys employed by legal assistance programs. R.1:21-1(e) R.1:21-3(c).
7.
Appearance
by a non attorney in a contested case before the Office of Administrative Law
or an administrative agency. R.1:21-1(f).
8.
Persons
admitted to practice as an attorney in a foreign country rendering limited
legal services in this State. R.1:21-9.
9.
Out-of-state
attorneys who are not suspended in their home jurisdiction practicing on a
pro-bono basis following a major disaster. R.1:21-10.
10.
In
house counsel R.1:27-2.
11.
Preparation
of residential sales contracts and leases by real estate brokers. New Jersey State Bar Association v. New
Jersey Association of Realtor Boards, 93 N.J. 470, 475-76 (1983).
12.
Re-negotiation
of a mortgage by those who are certified or duly licensed by certain government
agencies. N. J. Advisory Comm. 716
and N. J. Comm. on Unauth. Pract. Op. 45 (joint op.) (June 26,
2009).
13.
Preparation
of estate tax return allowing certified public accountants licensed in New
Jersey to file New Jersey Inheritance Tax returns. In Application of New Jersey Soc. of CPA’s,
102 N.J. 231, 241-42 (1986).
14.
Out
of state attorneys representing a party in an American Arbitration Association
proceeding in New Jersey. Unauth. Pract. Comm. Op. 28 (December 19,
1994).
15.
Preparation
of Corporate Organizational Documents. N.J.
Comm. On Unauth. Pract. Op. 47 (June 13, 2011).
16.
Employee
Benefit Planning. N. J. Comm. on
Unauth. Pract. Op. 22 (Mar. 22, 1979).
17.
Marketing
of Legal Forms. N. J. Comm. on Unauth.
Pract. Op. 20 (Oct. 6, 1977).
18.
A
nonlawyer engaged in the practice of another profession may apply his or her
general knowledge about the law to a problem arising in his or her field
without violating the rule prohibiting unauthorized practice of law. Auerbacher v. Wood, 142 N.J. Eq.
484, 485-86 (E. & A. 1948).
19.
Through
the Media. N. J. Comm. On Unauth. Pract. Op.4 (Apr. 8, 1971).
20.
Activities
of Collection Agencies. Unauth.
Pract. Comm. Op. 8 (Feb. 10, 1972).
21.
Out-of-State
Attorneys in New Jersey. RPC 5.5, et. seq.
22.
Out-of-State
Bond Counsel. In re Opinion 33, 160
N.J. 63, 80 (1999).
23.
Out-of-State
attorneys appearing before Federal agencies.
Unauth. Pract. Comm. Op. 27 (Mar. 1, 1993).
24.
Paralegals.
In re Opinion No. 24, 128 N.J. 114, 123 (1992).
25.
Licensed
Public Adjusters involving matters of property damage. Unauth. Pract. Comm.
Op. 30 (Jan. 19, 1998).
26.
“South Jersey Practice.” In re Opinion No. 26 of the Committee on
the Unauthorized Practice of Law, 139 N.J. 323 (1995).
