New Jersey Section 2C:21-22a – Civil actions resulting from the unauthorized practice of law.

 

Understanding New Jersey’s Laws on the Unauthorized Practice of Law

New Jersey has strict laws prohibiting the unauthorized practice of law (UPL). Section 2C:21-22a of the New Jersey Code specifically allows for civil actions against those who engage in UPL. This section can have major implications for anyone providing legal services in the state without proper authorization. In this article, we’ll break down the key provisions, penalties, and defenses related to 2C:21-22a.

What Activities Are Prohibited Under 2C:21-22a?

The statute defines UPL broadly as “providing legal advice or services where the conduct is not authorized by law.” This includes a wide range of activities commonly performed by lawyers, such as:

• Giving legal advice or counsel
• Drafting legal documents like wills, contracts, or court filings
• Representing someone in court or administrative proceedings
• Charging a fee for legal services

Notably, the law applies to both licensed out-of-state attorneys and non-lawyers alike. The only exceptions are for authorized practice in limited circumstances, like pro hac vice admission or practice before federal agencies.

What Are the Penalties for UPL Under 2C:21-22a?

If convicted criminally, UPL is a 4th degree felony under 2C:21-22. This can result in up to 18 months imprisonment and $10,000 in fines. However, 2C:21-22a focuses on civil liability. It allows any person harmed by UPL to recover:

• Treble (triple) damages
• Legal costs and fees
• Injunctive relief

The treble damages provision is particularly impactful. It permits plaintiffs to collect three times their actual damages, making UPL an expensive mistake.

What Defenses Are Available Against 2C:21-22a Claims?

Defendants in 2C:21-22a cases may argue their conduct was, in fact, authorized. For example, an out-of-state lawyer could show they were properly admitted pro hac vice or were providing services allowed under multijurisdictional practice rules.

Other possible defenses include:

• No damages: The plaintiff was not harmed financially by the UPL.
• Statute of limitations: The claim is time-barred under the 2 year limit.
• Lack of intent: The defendant did not “knowingly” engage in UPL.
• First Amendment: The UPL laws violate free speech protections.

However, these defenses have significant limitations that a knowledgeable lawyer could explain.

Who Can Bring UPL Claims Under 2C:21-22a?

The statute allows claims by “any person who suffers any ascertainable loss.” This broad language opens the door to claims by both direct clients and third parties. For example:

• A client could sue for a refund of fees paid to an unlicensed practitioner.
• An opposing party could claim losses from an improper court filing.
• A licensed attorney could allege lost business from unfair competition by an unlicensed provider.

Even the New Jersey Office of Attorney Ethics could potentially bring claims against those engaging in systemic UPL.

What Are Some Pros and Cons of New Jersey’s Strict UPL Laws?

There are reasonable arguments on both sides of this issue:

Potential Pros

• Protects consumers from unqualified legal advice
• Upholds integrity of the courts and administrative processes
• Provides licensed lawyers a remedy against unfair competition

Potential Cons

• Limits consumer choice in selecting providers
• Restricts activities by out-of-state attorneys
• Potentially violates First Amendment rights
• Treble damages seem excessive

Ultimately, striking the right balance is a policy decision for New Jersey lawmakers and Bar regulators. But the current law demonstrates how seriously the state takes UPL.

Key Takeaways About New Jersey Section 2C:21-22a

In summary, here are some key points to remember about New Jersey’s civil UPL statute:

• It prohibits a wide range of unlicensed legal activities, with few exceptions.
• Treble damages provide strong financial deterrence against UPL.
• Both direct clients and third parties can potentially bring claims.
• Defenses are available but limited in many cases.
• New Jersey regulators actively enforce UPL laws.

The bottom line is 2C:21-22a creates serious civil liability for anyone considering providing legal services in New Jersey without proper licensure and authorization. The prudent path is working closely with an experienced lawyer to ensure compliance. Unlicensed practitioners proceed at their own risk.