Monday, June 2, 2008

Rogue Document Preparers, UPL and the Future of the LDA Profession

A recap of ALDAP's May 30 seminar with Deputy District Attorney Tracy Hughes

First and foremost, I would like to thank Orange County Deputy District Attorney Tracy Hughes and Orange County Court Commissioner Richard G. Vogl for sharing their experience and insights regarding “Rogue Document Preparers: Unfair Competition and LDA Compliance.” Hughes’ presentation, and the subsequent “round-table” discussion offered invaluable information about how the DA’s office handles consumer protection and complaints of unauthorized practice of law (UPL) and unfair competition, and what must be done in the future.

Unfortunately, there are very few prosecutions of unregistered legal document preparers on a statewide level. When Hughes began looking into these matters and contacting prosecutors throughout California, she could find none who had handled a similar case. In 2007, she began to blaze a new trail, boldly going where no prosecutor had gone before. Orange County LDA-related investigations and prosecutions have included:

  • An unregistered legal document preparer passing out business cards and flyers in front of the courthouse;
  • A formerly registered LDA continuing to practice with lapsed registration;
  • A non-profit organization offering counseling services, but crossing the line into legal document preparation and UPL;
  • An Immigration Consultant who was unaware that his practice was “spilling over” into areas requiring LDA registration; and
  • The hybrid LDA/paralegal with a non-attorney document preparer claiming the work is attorney-supervised.
“Attorney supervision” is a gray area that can be difficult to prove and, thus, difficult to prosecute. Both Hughes and Commissioner Richard Vogl agreed that the California State Legislature needs to address this. While her research did lead her to San Diego County Bar Association Ethics Opinion 1983-7, that is obviously not enough; a local bar association white paper is hardly binding authority.

Obstacles to Prosecution of 6400 Violations

In addition to the “gray area” in the legislation, there are several challenges facing prosecutors handling these types of cases.
  • The obvious, of course, is resources. Hughes explained that they triage incoming complaints and allocate resources accordingly. The nature of LDA-related complaints requires that they be fully investigated, with field interviews and a photo line-up, similar to other complaints and allegations involving vast sums of money or harm to multiple victims. Yet, the LDA-related complaint often involves a (relatively) small sum of money and only a single victim.
  • Generally speaking, UPL cases carry more weight and are taken more seriously than unregistered LDA cases.
  • The statute of limitations for misdemeanor failure to register as an LDA is 12 months from the date of violation. A typical scenario involves a consumer who contracts with a rogue paralegal who sits on the documents for a period of time before filing them. Once filed, the client’s matter is put on calendar – sometimes months later. It is not until the hearing that the documents are rejected and the consumer is made aware that they have been duped. The complaint is then filed with the District Attorney, leaving only a couple of months (at most) to investigate and file charges before the statute runs.
  • On the other hand, the statute of limitations for unfair business practices (17200/17500) is 4 years.
  • Claims for unfair business practices (17200/17500) must have evidence of financial losses, which can make this a challenge to prosecute.
The Future of LDA Enforcement

Ongoing and future priorities include:
  • Continued enforcement and monitoring of non-attorney legal document preparers
  • Communication with the County Clerk
  • Working collaboratively with the State Bar
  • Legislative guidance for attorney/LDA collaboration

ALDAP’s Role

ALDAP has taken up this fight to protect the integrity of our profession. If we fail to police ourselves, how can we be sure that we – the legitimate service providers – won’t end up being lumped in with the criminals, disbarred attorneys and others who regularly engage in UPL? If we don’t keep our profession clean, we may find ourselves with no profession at all. We invite you to join us in this endeavor to make justice accessible to low- and middle-income families and small businesses, while also preserving our livelihood for years to come.

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