## Facts

- National Legal Professional Associates (NLPA) was a legal advisory organization that sold services to criminal defendants for a flat fee and held itself out as highly knowledgeable in criminal law.
- NLPA advertised that it would not represent defendants or replace their attorneys, but that it would: (1) help ensure defense attorneys were doing their jobs, (2) provide case-status information, (3) support the defense team with additional research performed by licensed attorneys, and (4) answer defendants’ legal questions.
- NLPA also suggested that if a defendant’s attorney was unwilling to work with NLPA, the defendant should obtain a new attorney.
- Cash Whitmore and King Burden were charged in federal court in the Northern District of New York with distributing cocaine and were detained pending trial.
- The court appointed defense counsel for Whitmore and Burden.
- After NLPA contacted them, Whitmore’s mother and Burden’s mother each paid NLPA $2,500 for pretrial consultation services, which NLPA characterized as a “research fee.”
- NLPA sent Whitmore and Burden copies of their case dockets and public articles on criminal-law topics that might relate to their cases; some materials were outdated or inaccurate.
- Whitmore asked NLPA specific legal questions, stating he would have asked his lawyer but believed he lacked a way to call him; NLPA responded by sending additional articles on the topics raised and later sent an article about a recently decided case.
- Whitmore and Burden later asked the court to appoint new attorneys. The court determined their current attorneys had performed excellent work and questioned the defendants about their requests.
- After learning of NLPA’s involvement (and that NLPA had previously been enjoined in another jurisdiction), the court directed a magistrate judge to investigate and issued an order to show cause why NLPA should not be enjoined from unauthorized practice of law in the district and required to return certain fees.
- NLPA conceded it was not authorized to practice law in that federal district but argued it was not practicing law because it only provided publicly available information and general legal materials, comparable to selling a legal book, and did not appear in court or act as counsel of record.
- The magistrate judge recommended that no action be taken against NLPA, and the district court reviewed that recommendation.

## Issues

1. Whether NLPA’s paid services and communications with Whitmore and Burden constituted unauthorized practice of law in the Northern District of New York.
2. If unauthorized practice occurred, whether the court should enjoin NLPA from engaging in similar conduct in the district.
3. Whether the court should require NLPA to return the fees paid by the defendants’ families.

## Decision

- The district court adopted the magistrate judge’s report and recommendation.
- The court found the record did not establish that NLPA engaged in unauthorized practice of law in connection with Whitmore or Burden.
- The court declined to enjoin NLPA from conducting its activities in the Northern District of New York on the showing made.
- The court declined to order NLPA to return or disgorge the fees paid.

## Legal Principles

- Federal district courts have authority to regulate who may practice before them and to address unauthorized practice connected to matters pending in that court.
- Unauthorized practice generally involves acting as a legal representative in a case or providing individualized legal advice and services as a substitute for a licensed attorney authorized to practice in the forum.
- Conduct such as appearing in court, signing or filing pleadings, or communicating with the court as a party’s lawyer is strong evidence of practicing law; the absence of such conduct can weigh against a finding of unauthorized practice.
- Providing docket materials and general legal information, without more, may be treated as the distribution of public records and legal information rather than the practice of law, depending on what the provider actually does for the client.
- Prior orders against an organization in other jurisdictions may inform the court’s concern but do not, by themselves, establish a violation in a separate proceeding; the decision must rest on the evidence in the record.
- Injunctive relief and fee-return orders require a factual basis showing conduct that warrants court intervention; where the evidence does not show unauthorized practice, the court may deny both forms of relief.

## Conclusion

In this miscellaneous proceeding, the Northern District of New York concluded that NLPA’s involvement with two represented, indigent defendants—consisting largely of sending docket materials and general criminal-law articles and responding to questions by providing additional published materials—did not, on the record presented, amount to unauthorized practice of law, so the court adopted the recommendation to take no action and denied both injunctive relief and a fee-return order.


In re National Legal Professional Associates, 1:08-MC-101 (NAM/DRH) (2010)