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Unauthorized Practice of Law by US Attorneys


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Unauthorized Practice of Law by US Attorneys

With so many attorneys offering their services, one must wonder which ones are working and operating legally and which are not.

Obviously your safest bet as a consumer for issues in Mexico and Mexican law is to hire an attorney who has their studies here in Mexico and their professional cedula which can be verified online as well as has membership in a bar association with membership standards and requirements and mandatory continuing education.

What about attorneys from the US who are not Mexican attorneys and practice in Mexico?

Let´s look at this from another perspective and see how a US State, such as California applies their unauthorized practice of law statute and what is the opinion of the State Bar with regards to people calling themselves attorneys working in jurisdictions where they are not licensed to practice. How would a Mexican attorney be viewed working in the US? By looking at US standards we can see how these local attorneys should be acting and which rules and procedures they should adhere to.

Giving advice regarding the law of a foreign country constitutes the practice of law. A person who gives advice as to local law, federal law, the law of a sister state, or the law of a foreign country, is GIVING LEGAL ADVICE! (The lawyer from Mexico therefore is practicing law. Bus. & Prof.C. §6125; Bluestein v. State Bar (1974) 13 Cal.3d 162, 174. Aiding the conduct is a violation of CRPC 1-300(A) by the supervising attorney.)

The lawyer from Mexico should be advised to never, either orally or in writing, give advice to clients until admitted,

In California there are penalties for the unauthorized practice of law as well as the attorneys that help them who can be charged with aiding and abetting the unauthorized practice of law in violation of rule 1-300(A), Rules of Professional Conduct (CRPC). Theyd also be condemning innocent associates and out-of-state lawyers to potential admission delay or denial for engaging in the unauthorized practice of law in violation of Business and Professions Code §6125.

Or for holding out that they were entitled to practice law in California in violation of §6126(a), Section 6126(a) also provides potential criminal exposure for violating these statutes:

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.

I understand that in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 128-129, the California Supreme Court held that an attorney, not physically present in California, can virtually be in California by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer or other modern technological means,

Birbrower observed that there is no statutory exception to §6125 which allows out-of-state attorneys to practice law in California as long as they associate local counsel in good standing with the State Bar, except by pro hac vice admission. (Id., at p. 126, fn. 3; Cal.Rls. Ct. 9.40.)

Negotiating and settling claims on behalf of others may amount to the practice of law. If a law firm is retained for a matter that includes the negotiation of a contract or other agreement on behalf of a client, this conduct constitutes the practice of law. Therefore, an attorney may not delegate such functions to a non-attorney. (In re Carlos (Bkrtcy.C.D.Cal. 1998) 227 B.R. 535, 538-539.)

There is no statutory exception to §6125 which allows out-of-state attorneys to practice law in California as long as they associate local counsel in good standing with the State Bar, except by pro hac vice admission. (Id., at p. 126, fn. 3; Cal.Rls. Ct. 9.40.)

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.) Without your direct review and authorization of the documents, you are aiding the unauthorized practice of law (CRPC 1-300(A) and your non-admitted associate is engaging in the unauthorized practice of law. (Bus. & Prof. §6125.)

The courts have observed that a documents complexity is not dispositive as to whether their drafting is properly within the sphere of legal services, since the preparation of any legal document that secures legal rights is considered practicing law,

So an attorney would be safest to not to give advice or consultations for issues outside their state or jurisdiction where they are licensed, so a Nebraska attorney should stick to Nebraska law and not try Mexican law nor Nevada law.

Some good steps would be

First, any designation of the non-admitted associate in business cards, letterhead, Web sites, announcements or any other written designations should indicate that the associate is not admitted to practice in Mexico. This will ensure that the firm does not hold the person out as entitled to practice law in violation of the law.

Second, if the associates meet with clients, in person or by telephone, the clients should be told that the associate is not admitted and is not entitled to practice law yet. This, too, will clarify for clients that the person is not a lawyer and not entitled to practice law.

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There are laws in Mexico, I am trying to make an analogy, supposedly US attorneys are bound by their home states professional rules which are similar to California and which they may violate. Here in Mexico they have the same law

ARTICULO 170. SE IMPONDRAN DE UN MES A TRES AÑOS DE PRISION Y MULTA DE CIEN A TRESCIENTOS DIAS DE SALARIO MINIMO:

I. AL QUE, SIN SER SERVIDOR PUBLICO, SE ATRIBUYA ESE CARACTER E INTENTE EJERCER ALGUNA DE LAS FUNCIONES CORRESPONDIENTES;

II. AL QUE, SIN TENER TITULO PROFESIONAL O AUTORIZACION PARA EJERCER ALGUNA PROFESION REGLAMENTADA, EXPEDIDOS POR AUTORIDAD Y ORGANISMOS LEGALMENTE CAPACITADOS PARA ELLO, CONFORME A LAS DISPOSICIONES REGLAMENTARIAS DEL ARTICULO 5o. DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, INCURRA EN CUALQUIERA DE LOS CASOS SIGUIENTES:

A). SE ATRIBUYA EL CARACTER DE PROFESIONISTA;

B). REALICE ACTOS PROPIOS DE UNA ACTIVIDAD PROFESIONAL;

C). OFREZCA PUBLICAMENTE SUS SERVICIOS COMO PROFESIONISTA; Y

D). USE UN TITULO O AUTORIZACION PARA EJERCER ALGUNA ACTIVIDAD PROFESIONAL, SIN TENER DERECHO A ELLO; Y

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It takes less formal education to be a lawyer in Mexico. Becoming a lawyer in Mexico is similar to how people became lawyers in the U.S. in the old days and that was being an apprentice.

There are several Mexicans who claim to be lawyers and they are not and nobody does anything about it. I get a kick out of one man who claims to be a lawyer but he never practiced law. A person must practice law for a few years to be a lawyer in Mexico. He cannot be a lawyer here without practicing so if someone is going to lie at least get the lie straight.

In the U.S. lawyers wrote the laws and rules so that they will have no competition unlike medical doctors who do have competition. Doctors can have competition from self help groups, natural practitioners, etc., but legal clinics run by non-attorneys run the chance of criminal charges being filed.

A lawyer who is not licensed to practice in California can temporarily work under another lawyer's license. U.S. attorneys who are not licensed here can work under a Mexican attorney's license.

Is Spencer saying that a U.S. attorney is practicing here and not legally working under the license of a Mexican attorney?

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I do not think that someone can work under the license of another. In a perfect world that would mean joint meetings and the responsible attorney watching over the other person and approving their work and the non attorney not dispensing legal advice unless said statements were expressly approved by the attorney. I have seen the poor work of US attorneys trying to be Mexican attorneys. They either need to stick to US law from the state where they are licensed (only providing service to clients from that state) or go to law school here and not practice until they have their cedula, otherwise they are a danger to the community. Even then a cedula is no guarantee an attorney wont rip you off, right now I have seen cases with local attorneys who have their cedula who collect tens of thousands of pesos and do nothing or trick their clients into signing papers in Spanish so they can steal their property.

Too many people working illegally say they work under another attorney and usually this means that this person has some phantom attorney with a license and uses their name or who takes a cut or signs when the non licensed person cannot. This is an excuse, if the person cannot practice then they should not have much contact with clients as the mere association with a licensed attorney with little vigilance and the dispensing of advice by the non licensed party is a crime.

Also here in Mexico you do not need to do an apprenticeship to practice, I did 4 years of law school and for my community service worked in the courts but I also could have worked in any other government office working on things having nothing to do with the law.

To see how various states in the US define unauthorized practice, here is info from the ABA with definitions by state:

http://www.google.com.mx/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CDQQFjAC&url=http%3A%2F%2Fwww.americanbar.org%2Fcontent%2Fdam%2Faba%2Fmigrated%2Fcpr%2Fmodel-def%2Fmodel_def_statutes.pdf&ei=9riYU9SIC8jf8AHO8oHQCg&usg=AFQjCNEjr5MU1jkVyI6ljc_k4NWcCXZxqA&sig2=X8U7OkcR3qBKWq6Nw-GSfQ&bvm=bv.68693194,d.b2U

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thank for the reminder.

the last thing I want to do due business with someone practicing law illegally.

I found that in financial planning, those investment advisors that live on the fringe , our nice wonderful friendly people,

who will steal your money

thanks for the warning,

you are my hero, you saved me from getting my car impounded last year, a lawyer scammed me with false car import papers,

and you caught it..

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I think Spencer is trying to give everyone a heads up and that is appreciated. He gives factual rationale and information. Many of us are use to seeing an " attorney "sign and just assume this person was an attorney when dealing with things NOB. Personally I asked friends for a reference.

I know of 2 situations where NOB people lost a lot of money " thinking" they were dealing with legal and competent NOB attorneys here.

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Member of the bar.... well there isn´t a bar per se as a governmental organization in Mexico that regulates attorneys. There is the Federal Secretary of Education and State Office of Professions who issue state cedulas and make sure people met the educational requirements but after that they really have little role. The state office does take a registry of postgraduate courses, I have done 6 and they are all registered.

Federal SEP site to check cedulas (you need to enter first and middle and last names exactly or you wont get a proper result): http://www.cedulaprofesional.sep.gob.mx/cedula/indexAvanzada.action

State site (Good search engine, you can search using one name, i.e. Spencer): https://serviciossgg.jalisco.gob.mx/profesionesweb/wbfconsultaprofesionista.aspx

There is a good chance that next year the government will make it mandatory to belong to a College of Attorneys and be certified which means paying dues and complying with continuing education requirements and then submitting proof and the appropriate fee to the State government.

The two top Colleges or private bar associations in Mexico are the Barra Mexicana de Abogados www.bma.org.mx and ANADE (Corporate Attorneys Bar Association) www.anadejal.com, the latter of which I am a member and certified attorney.

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Under the California Bar Rules the lawyers who can practice under another attorney's license:


1. WHAT IS MJP?
MJP refers to multijurisdictional practice. New California Rules of Court 9.45, 9.46, 9.47 and 9.48 permit certain categories of attorneys not licensed in California ("non-California attorneys") to practice here to a limited extent.
2. WHICH NON-CALIFORNIA ATTORNEYS ARE PERMITTED TO PRACTICE UNDER THE MJP RULES?
Attorneys working for a qualified legal services provider and under the supervision of a California attorney working for the same provider (rule 9.45); attorneys working as in-house counsel for a qualifying institution (rule 9.46); attorneys practicing law temporarily in California as part of litigation (rule 9.47); and non-litigating attorneys temporarily in California to provide legal services (rule 9.48).
3. WHEN DID THE MJP RULES BECOME EFFECTIVE?
Nov. 15, 2004.
4. WHAT ARE THE REQUIREMENTS FOR PRACTICING AS AN MJP ATTORNEY?
An MJP attorney must be an active member in good standing of the bar of at least one U.S. state, jurisdiction, possession, territory or dependency. The other requirements vary depending on the category. Please refer to the appropriate rule of court and FAQ for additional information.
5. DO MJP ATTORNEYS HAVE TO REGISTER WITH THE STATE BAR?
Legal services attorneys and in-house counsel must register with the State Bar and file an Application for Determination of Moral Character. Litigation and non-litigation attorneys eligible under rules 9.47 and 9.48 are not required to register. MJP registration applications are available online. The moral character application is available, but must be submitted with the MJP application, not separately.

In Mexico when a student finishes high school he can apply to a law school. Most are admitted through a lottery. It is usually 5 years of law school and then he serves an apprenticeship/internship,

Perform your required trabajo social term (internship term). This internship can be completed in the last year of your formal education, as internship positions for Mexican lawyers are usually part time. You cannot graduate unless you have finished all of your course work and your work internship period. This time period is usually 6 months to 1 year, depending on the university and the internship program you have chosen.
Mexican lawyers are highly educated and many speak English. In Mexico, students enter law school after 11 years of formal education. Law school is 5 years, includes liberal arts related courses and is broader and more formal and theoretical in scope and focus than is law school in the U.S. After graduating from law school, the individual usually works for a firm or government agency as a clerk (pasante) until he or she presents an oral exam to become licensed (licenciado en derecho), after which he or she is addressed as licenciado or licenciada, abbreviated as "Lic." when written before the attorney's name. Mexican lawyers are licensed to practice throughout Mexico, not in individual states as in the U.S. There is no integrated bar or requirement to join a bar association. Some Mexican lawyers continue to study after becoming licensed and obtain their Masters in Law or Doctor of Law Degree. Like in the U.S. Mexican lawyers are slowly becoming more specialized as the volume and complexity of Mexican law grows.
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As far as the US goes, two words were mentioned, supervision and temporary. There may be provisions for attorneys to work temporarily but not skirt the requirements if they wish to permanently reside in an area and practice.

As far as studying law in Mexico, it can be from 3 to 5 years. I did it in a bit over 3. There are various options to complete the 30 something odd courses required for a law degree. Once you have completed 70% of your classes then you can do your community service at a government agency, minimum 480 hours and minimum 6 months, maximum 2 years. I really don´t get the pasante thing (many claim to be pasantes and it seems to be the purgatory between finishing law school and getting your cedula), it seems to be for people who cannot pay their school bill or pass the test.... ah the tests, well there are a few ways to get your law degree, by excelencia with a GPA of 95% or higher or taking a CENEVAL exam of multiple choice questions, doing a thesis, doing a 2 year internship, studying a masters degree or doing exams in 5 subjects (I did this option). Then you pay 12,000 pesos (2011 prices) or fly to Mexico City to get your federal cedula once the university has placed a bunch of signatures and stamps on the back of your diploma.

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I think an apprenticeship is a excellent method to train lawyers, far better than in the U.S. where a graduate gets his license and learns on his own.

Mexico doesn't have an ABA nor each state its own state bar. Being an attorney is not as regulated here by other lawyers as it is in the U.S. I don't know if that is good or bad. I do know the U.S. produced some excellent lawyers before it required law schools and licenses. Lincoln was a very successful corporate lawyer with one semester of formal education.

I guess your point is that there is someone here who is practicing law without the MX version of a license. If that person is losing his clients' cases because he is incompetent then that is important. How many licensed attorneys here screw up or lose cases also?

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There are licensed attorneys who are incompetent or just plain crooks, there are US attorneys who have no license and who do not have the education nor training to practice in Mexico, not to mention the license and as well have been committing questionable acts, both ethically and legally.

I challenge them to publish the name of the attorney they work under who will assume liability for their actions whenever someone needs to answer criminally or civilly. Most practice like a nurse would in a bad doctors office, when the doctor is out the nurse attends patients and diagnoses and plays doctor all the while saying she works for a doctor. If someone is truly being supervised then that person being supervised will work with the other, never work alone and the client will have dealings with both.

I have seen outright deception, fraud, incompetence and overcharging. Examples of these improper acts are creating a will or trust where they or a close family member or spouse) will have an interest or will receive something (something Mexican notaries are prohibited from doing), creating Mexican wills for disposition of property in Mexico which don not meet the standards of the civil code, among other acts. Also they want to be named in a power of attorney, this can be a license to steal, it is very risky and should only be used as a last resort and preferably by someone well trusted.

I am talking about many people, not just one or two. I stay away from US issues as I am not licensed there and do not have the experience so I would not be the best person so I stick to Mexican law what I know best, the others should apply my principles accordingly. Many claim ignorance and say another attorney said it was ok without mentioning names, but even then, the attorney could have been laying bricks the past 10 years or never litigated or just wants to give them the answer they want to hear as after all, they will never have to answer for their response, the other guy will who is practicing without a cedula.

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Intercasa might be able to tell us just what happens when an attorney is found to be practicing without a license in this area. Are they procecuted put in jail?? Or like most cases, the person hiring them is just up the creek.

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Guest bennie2

usually nothing happends. the lawyer may be connected, pays people off, like the judge. or the 2 sides work together to fool the clients, soak them for money. or the wealthier client pays both lawyers & wins. mexicans have had trouble too, especially those who are local. one women lost a portion of her land to her neighbor. i know several stories which were nightmares. i myself had trouble as well. for immigration there are 2 decent lawyers, spencer is one of them.

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I thought only a Notario could write a will or issue a power of attorney. There are people who are not attorneys but studied some law (Spencer you know this one person very well) who has issue POAs and write wills. None of it legal.

I agree the Mexican legal system needs to be cleaned up but without a local state bar to prosecute imposters cleaning it up is difficult to do.

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It is a bit complicated, Mexico recognizes foreign wills and powers of attorney but there may be extra requirements and when the cost is factored in, it doesn{t make sense to use a US attorney who is bending the rules when there are competent local notarios who are bound by laws and ethics. Some local scammer US attorneys prepare poorly drafted documents and then dont even give the clients an original, who knows what they may do with the document. The courts are onto the scams and recently consulted me about a power of attorney which the court denied its use as it was improperly done and probably was to be used fraudulently.

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What is your advice, if you were RIPPED OFF by a local attorney who charged an extreme fee and did nothing. When you explain this to him its not fair an you are not going to pay, he threatens to file some sort of legal papers and then you will go to jail if you don't pay him? Who do you turn to for help? Or, do you go around looking over your shoulder not opening the door to strangers, because you don't know at any minute someone could come and lock you up..

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What is your advice, if you were RIPPED OFF by a local attorney who charged an extreme fee and did nothing. When you explain this to him its not fair an you are not going to pay, he threatens to file some sort of legal papers and then you will go to jail if you don't pay him? Who do you turn to for help? Or, do you go around looking over your shoulder not opening the door to strangers, because you don't know at any minute someone could come and lock you up..

There is no state bar like in the U.S. to demand attorneys follow ethical rules.

If you paid and lost your money or you were given documents that are illegal or your attorney isn't really an attorney or he is incompetent, you are screwed.

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