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legal advice

Legal advice is oral or written advice on a legal matter that would affect the rights and responsibilities of the person receiving the advice. Providing legal advice requires the attorney to apply the applicable law to the specific facts of the client’s situation, and recommend a course of action. This is distinguishable from the providing of legal information, which generally includes summary statements of the law on a question or legal topic, with the qualification that the legal outcome or proper course of action may vary depending on the specific facts of the situation.

Only a lawyer may give legal advice—but anyone may recite or offer legal information. And it is generally illegal and considered the unauthorized practice of law for someone who is not a lawyer to offer legal advice or represent someone other than himself (including a corporate entity or LLC) in a court or other legal proceeding.

In Texas, legal advice is considered the application of legal principles and judgment to the circumstances or objectives of an individual, which is a service that can only be provided by a person who is licensed to practice law. According to the Texas Government Code, specifically Title 2, Subtitle G, Chapter 81, the unauthorized practice of law is prohibited. This means that individuals who are not licensed attorneys are not permitted to give legal advice, represent others in court, or otherwise engage in activities that constitute the practice of law. The distinction between legal advice and legal information is critical; while legal advice requires a specific application of the law to an individual's situation, legal information can be provided by anyone and consists of general statements of the law without application to particular facts. Violating these regulations can result in penalties, including injunctions, fines, and even criminal charges for the unauthorized practice of law.


Texas Statutes & Rules

Government Code, Title 2, Subtitle G, Chapter 81, Subchapter G, Section 81.101 - Unauthorized Practice of Law
This statute defines what constitutes the practice of law in Texas and who may engage in it, which is relevant to understanding the distinction between legal advice and legal information.

In Texas, the practice of law is defined as the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. The statute explicitly states that the practice of law does not include the design, creation, publication, distribution, display, or sale, by means of an Internet website, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This provision allows for the dissemination of legal information as long as it is not personalized legal advice. Only a person licensed to practice law in Texas or a person otherwise authorized by statute or by the Supreme Court of Texas may practice law in the state.

Government Code, Title 2, Subtitle G, Chapter 82, Subchapter B, Section 82.037 - Practice of Law by Corporation or Association
This statute addresses the prohibition against corporations or associations practicing law, which is relevant to the unauthorized practice of law by entities.

Under this section, it is unlawful for a corporation or association to practice law in Texas or to offer legal services or advice unless it is through an individual who is a licensed attorney. The statute prohibits a corporation or association from representing that it has the authority to practice law or to prepare legal documents, except as specifically allowed by law. This statute is designed to prevent entities from engaging in the unauthorized practice of law, which includes providing legal advice.

Penal Code, Title 8, Chapter 38, Section 38.123 - Unauthorized Practice of Law
This statute criminalizes the unauthorized practice of law, which includes providing legal advice without a license.

Section 38.123 of the Texas Penal Code makes it a criminal offense for a person to practice law or represent themselves as an attorney at law without having been licensed to practice law by the appropriate state authority. This includes holding oneself out to the public or any individual as being entitled to practice law. Violations of this section can result in a range of penalties from a Class A misdemeanor to a third-degree felony, depending on the circumstances and whether the individual has previously been convicted under this section.

Occupations Code, Title 2, Subtitle G, Chapter 953 - Legal Document Assistants
This statute provides for the registration and regulation of non-attorney legal document assistants, which is relevant to the provision of legal information.

Chapter 953 of the Texas Occupations Code establishes the requirements for non-attorney legal document assistants who are authorized to provide assistance in preparing legal documents for a person representing themselves in a legal matter. These individuals are not permitted to provide legal advice but may offer legal information. The statute requires legal document assistants to register with the county clerk, post a bond, and clearly disclose to customers that they are not attorneys and cannot provide legal advice or represent them in court. This statute helps to delineate the boundary between providing legal information and legal advice.

Federal Statutes & Rules

Unauthorized Practice of Law
This is relevant because it outlines the legal boundaries of who may provide legal advice and under what circumstances.

Federal statutes do not typically define the practice of law, as this is generally left to the states. However, federal law, through various court decisions and rules, recognizes that the practice of law is reserved for those who are duly licensed. For example, in Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963), the Supreme Court acknowledged that states have significant interest in regulating the practice of law within their boundaries. However, federal law may preempt state law in certain areas, such as patent law, where non-attorneys may represent clients before the Patent Office if they pass a specific exam. Unauthorized practice of law at the federal level may also be addressed in specific contexts, such as immigration law, where federal regulations specify who may represent individuals in immigration proceedings (8 C.F.R. § 1292.1). Violating these regulations can result in penalties, including fines and injunctions against the unauthorized practice.

Sarbanes-Oxley Act of 2002, 15 U.S.C. §§ 7201-7266
This statute is relevant because it includes provisions related to the responsibilities of attorneys representing public companies.

The Sarbanes-Oxley Act, particularly in sections 307 and 406, establishes standards for attorneys representing public companies, requiring them to report evidence of a material violation of securities law or breach of fiduciary duty by the company or any agent of the company to the chief legal counsel or CEO of the company. If the response is inadequate, the attorney must report the evidence to the audit committee, another committee of independent directors, or the full board of directors. This statute underscores the importance of legal advice being provided by qualified attorneys, as it imposes specific obligations on attorneys in the context of federal securities law.

Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.
This statute is relevant because it includes provisions about who can provide legal advice and representation in immigration matters.

The INA, as amended, and its implementing regulations at 8 C.F.R. § 1292.1, specify who may represent individuals in immigration proceedings. This includes attorneys in good standing with any state bar and certain accredited representatives of recognized organizations. The statute and regulations are designed to protect immigrants from the unauthorized practice of law and ensure that they receive competent legal advice and representation. Violations can lead to sanctions, including fines and prohibitions on future representation in immigration matters.

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. § 101 et seq.
This statute is relevant because it includes provisions about the provision of legal advice in the context of bankruptcy.

The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 includes provisions that define 'debt relief agencies' and regulate the advice they can provide to assisted persons. Under 11 U.S.C. § 526, debt relief agencies are prohibited from advising an assisted person to incur more debt in contemplation of such person filing for bankruptcy. This statute is an example of federal law directly regulating the content of legal advice and ensuring that such advice is not abusive or detrimental to the consumer.

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