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In the state of California, the California State Bar is in charge of deciding who is permitted to practice law. People who practice law when they have not been authorized by the State Bar can be subject to criminal charges. The California Business and Professions Code Section 6126(a) BPC makes law practice by non-members of the State Bar illegal.
In order to prove a defendant’s guilt, prosecutors must prove the following beyond a reasonable doubt:
This particular statute does not include a definition of what “practicing law” means. However, courts have ruled in the past that providing services in litigation and court cases counts as a violation. Other violations include giving legal advice, preparing legal contracts, or preparing any other legal documents.
An individual wishes to start a business which can provide basic legal services and information to people. This individual creates advertisements which state that they can help people with their legal problems for a small cost. However, the individual is not licensed with the California State Bar. They do not receive any clients. Even though they never secured a client, they can still be charged with unauthorized practice of the law due to the advertisements misrepresenting them as an individual who is authorized for law practice in the state.
A woman has recently graduated from law school, but she hasn’t taken the bar exam yet. Her friend is about to sign a new business contract. The friend asks the woman to double check the contract for correct legal terms. The woman does so, giving her friend legal advice about amendments that should be added to the contract. Even though no money exchanged hands, this woman could technically be prosecuted for engaging in law practice before becoming a member of the California State Bar.
Because Section 6126 doesn’t actually include a definition of what “practicing law” means, in many cases the argument can be made that there is insufficient evidence of unlawful practice. Non-lawyers can provide certain services regardless of whether they’re licensed by the State Bar. When the defendant has not engaged in actions that meet the minimum established requirements for “practicing law,” they will have strong defenses against a criminal charge.
Unlawfully engaging in law practice when an individual is not licensed with the State Bar is considered a misdemeanor offense. If an individual is convicted of this crime, they can be sentenced to up to six months in jail. They will also have to pay court fines and adhere to whatever probation conditions the judge imposes.
If the defendant has already been convicted of this type of offense previously, they will be required to spend at least 90 days in jail. In unusual cases, the jail requirement might be excused. This excuse only applies when justice would be better served by the imposition of a monetary fine or a lesser overall sentence.
There are similar code violations that an individual may be charged with on top of their 6126(a) violation charge. Alternatively, they may be charged with these crimes instead of being charged with a 6126(a) offense. Similar crimes are as follows:
In the case of the practice of law by an inactive member of the State Bar, an individual may still be charged with a Section 6126 violation. However, this crime pertains to Section 6126(b) rather than Section 6126(a). Section B refers to individuals who were previously licensed and authorized with the California State Bar, but whose authorization has lapsed for any number of reasons. Even if they’ve practiced law legally in the past, they cannot legally practice law now, and therefore may be charged with a misdemeanor.