Drafting a Contract IS Practicing Law

There has been much debate and speculation as to whether a lay-person may draw up a contract to enforce rights between themselves and another party. While using fill-in-the-blank, lawyer approved drafts of wills, trusts, leases, contracts, and other legal instruments is not considered practicing law, drawing a legal document from scratch or modifying an existing one is under the following authorities.

Under California law, the practice of law includes the preparation of contracts and other documents that secure legal rights, whether the matter is pending in court or not. Preparation of stipulations and releases constitutes the practice of law.
(In re Garcia (9th Cir.BAP 2005) 335 B.R. 717, 728.)

As the term is generally understood, the practice of the law 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.
(People v. Merchants Protective Corp. (1922) 189 Cal. 531,535, quoting Eley v. Miller (1893) 7 Ind.App. 529 [citations omitted].)

For much of the history of this country, shambling rogues known as country lawyers became attorneys by “reading law,” with little to no formal training or schooling. There was no bar exam stopping anyone from practicing the law until the 20th century when lawyers figured out they needed to keep the poor out of power. The romantic notion of the country lawyer was a frontiersman, taking any case he could get and sticking up for the little guy. Famous country lawyers throughout history include Andrew Jackson, Abraham Lincoln, Clarence Darrow, and Robert H. Jackson, to name a few. These days, only seven states permit those who’ve read law to take the state bar exam for admission, while all other states require their lawyer-candidates to attend law school first. Getting popped for the unauthorized practice of law is a misdemeanor in California, possible jail time for up to a year.

So put your quill back in its inkwell and put your signet ring back upon your weathered finger. That document may not be enforceable and you’re going off to the pokey.

Via the Los Angeles County D.A. and the ABA.

2 thoughts on “Drafting a Contract IS Practicing Law

  1. If that’s true – and I don’t know enough about it to tell whether the CA9 got it right or not – it’s absurd as a matter of policy and the people should pass an initiative to overturn it.

    I mean, really? I as a landlord can’t write a lease from scratch, but must either use a prepared form or pay a lawyer to do it for me? Sounds like a full employment guild restriction for lawyers to me.

    I could sort of see it if the rule were used to prohibit second-party help – eg, I can’t help you write your lease, or write it for you, without practicing law. But self-help should not be governed by this kind of restriction, and even second-party help seems problematic. What, I can’t help my best friend draft a lease, even if i’m clear with him that IANAL?

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