Colorado § 13-93-108 - Practicing law without license deemed contempt.

§ 13-93-108. Practicing law without license deemed contempt.

Any person who, without having a license from the supreme court of this state so to do, advertises, represents, or holds himself or herself out in any manner as an attorney, attorney-at-law, or counselor-at-law or who appears in any court of record in this state to conduct a suit, action, proceeding, or cause for another person is guilty of contempt of the supreme court of this state and of the court in which said person appears and shall be punished therefor according to law. Nothing in this section shall prevent the special admission of counselors residing in other states, as provided in section 13-93-109.

Source: L. 2017: Entire article added with relocations, (SB 17-227), ch. 192, p. 699, § 1, effective August 9.

Editor's note: This section is similar to former § 12-5-112 as it existed prior to 2017.

ANNOTATION

I. General Consideration.

II. Judicial Department Controls Practice of Law.

III. Practicing Law Without License.

IV. Drafting Legal Documents.

V. Enjoining Unlawful Practice of Law.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Justice Court Practice by the Laity", see 9 Dicta 65 (1932). For article, "Who May Practice, and What Constitutes the Practice of Law", see 9 Dicta 251 (1932). For article, "Effective and Ethical Use of Legal Assistants", see 15 Colo. Law. 659 (1986). For article, "Can Robot Lawyers Close the Access to Justice Gap?", see 53 Colo. Law. 40 (Dec. 2024).

Annotator's note. Since § 13-93-108 is similar to former § 12-5-112 and laws antecedent to that section, relevant cases construing those provisions have been included in the annotations to this section.

This section is not obnoxious to § 21 of art. V, Colo. Const., providing that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title. People ex rel. Colo. Bar Ass'n v. Erbaugh, 42 Colo. 480, 94 P. 349 (1908).

Applied in Unauthorized Prac. of Law Comm. v. Grimes, 654 P.2d 822 (Colo. 1982); Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983); Unauthorized Prac. of Law Comm. v. Grimes, 759 P.2d 1 (Colo. 1988).

II. JUDICIAL DEPARTMENT CONTROLS PRACTICE OF LAW.

It is inherent in the judicial department of government under the constitution to control the practice of the law, the admission to the bar of persons found qualified to act as attorneys at law and the removal from that position of those once admitted and found to be unfaithful to their trust. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

While the judicial department cannot be circumscribed or restricted in the performance of these duties, appropriate and essential assistance in discharging them may be afforded by the enactment of statutes. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

As a general proposition, valid permission to practice law cannot be given by the general assembly except subject to the requirements for admission to the bar established by the judicial department. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

This section is not a grant of power to the supreme court or a limitation upon its inherent powers. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The judiciary has inherent and plenary powers, with or without legislative enactment, to regulate and control the practice of law to the extent that is reasonably necessary to the proper functioning of the judiciary. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

III. PRACTICING LAW WITHOUT LICENSE.

Law reviews. For article, "Unauthorized Practice of Law", see 10 Dicta 284 (1933). For comment on United Sec. Corp. v. Pantex Pressing Mach., Inc., 98 Colo. 79, 53 P.2d 653 (1935), appearing below, see 8 Rocky Mt. L. Rev. 289 (1936). For note, "May a Layman Appear Before the Colorado Public Utilities Commission", see 9 Rocky Mt. L. Rev. 188 (1937). For comment on People ex rel. Attorney Gen. v. Newer, appearing below, see 29 Dicta 153 (1952).

The basic and initial question in determining whether a particular activity amounts to the unauthorized practice of law is whether the individual's appearance is in a representative capacity to protect, enforce, or defend the rights or duties of someone else. Watt, Tieder, Killian & Hoffar v. U.S. Fidelity & Guaranty Co., 847 P.2d 170 (Colo. App. 1992).

It will be observed that the gist of the offense against which the statute is directed is one not licensed as an attorney holding himself out in any manner as being licensed, or committing the overt act of appearing in a court of record to conduct legal proceedings for another. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

One who, not having a license from the supreme court as provided by statute, advertises himself as a "lawyer", is guilty of a contempt under this section. People ex rel. Colo. Bar Ass'n v. Taylor, 56 Colo. 441, 138 P. 762 (1914).

Under this section, one who, through the medium of state, city and telephone directories, falsely holds himself out as an attorney at law, is guilty of contempt. People ex rel. Colo. Bar Ass'n v. Norton, 44 Colo. 253, 104 P. 605 (1908); People ex rel. Colo. Bar Ass'n v. Humbert, 86 Colo. 426, 282 P. 263 (1929).

One, who, not being licensed to practice law, caused his name to be printed in the city directory, on his office signs, business cards, and letterheads, followed by the words "Attorney, Solicitor of American and Foreign Patents", or by the words "Attorney, Patent Law and Counsel in Patent Causes", and who, in reply to a letter as to a divorce, replied on one of such letterheads, without stating that he was not engaged in the practice of law, violates this section. People ex rel. Colo. Bar Ass'n v. Erbaugh, 42 Colo. 480, 94 P. 349 (1908).

One may hold himself out as an attorney by writing, cards, signs, stationery, etc., but certainly may also, and perhaps even more effectively, hold himself out by his conduct. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1952).

Where one engages in the business of advising others on those important and complicated legal problems usually falling within the practice of the profession, pretending that he is qualified to do so, does it openly and constantly, year after year, by conversation and writing, and charges and collects substantial fees therefor, he could no more effectively hold himself out as having the knowledge and the necessary authority to so act. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1952).

Evidence showing unauthorized practice. People ex rel. Dunbar v. Schmitt, 126 Colo. 546, 251 P.2d 915 (1953).

The evidence adduced at the hearing established beyond a reasonable doubt that the respondent held himself out as being able to perform the services of incorporating business ventures generally required to be performed by a licensed attorney, that the respondent was not licensed to practice law in the state of Colorado, and that he prepared articles of incorporation for which he charged and received a fee in violation of this statute. People ex rel. Dunbar v. McClellan, 164 Colo. 202, 434 P.2d 126 (1967).

Since notaries public are by statute empowered to perform certain acts including making "declarations and protests" and taking "affidavits and depositions", where a notary advertises, "legal papers made", such fact is not sufficient or any proof that he intended to exceed the authority conferred upon him as a notary or of an intent to practice law. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

As to matters in which no legal principle is involved and the subject matter of the hearing has a value or represents an amount insufficient to warrant the employment of an attorney, permission is granted until withdrawn by the supreme court to permit laymen to represent others before the public utilities commission (PUC) in accordance with rule 7(b) of the PUC even though such representation may constitute practicing law. Denver Bar Ass'n v. Pub. Utils. Comm'n, 154 Colo. 273, 391 P.2d 467 (1964).

Where a considerable portion of respondent's time had been devoted to consulting with inmates of Colorado State Hospital, investigations of the legal proceedings resulting in their commitment to the institution, and advice and activities designed to bring about a release of the patients from further detention at said hospital, respondent was practicing law in violation of this section. People ex rel. Zimmerman v. Flanders, 121 Colo. 25, 212 P.2d 502 (1949).

The drawing of wills, as a practice, is the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

Where a cashier of a county bank drafted, prepared and caused to be executed a will, he engaged in the practice of the law in Colorado without having the requisite license therefor and was held guilty of contempt of the supreme court. People ex rel. Attorney Gen. v. Woodall, 128 Colo. 563, 265 P.2d 232 (1954).

For case where party was punished for contempt of the authority of the supreme court for holding himself out as an attorney at law, see People ex rel. Attorney Gen. v. Brown, 126 Colo. 222, 247 P.2d 682 (1952).

Under this section, a resident of Colorado licensed to practice law in another state, by accepting employment as an attorney in Colorado without a license to practice, is guilty of contempt. People ex rel. Attorney Gen. v. Thomas, 87 Colo. 547, 290 P. 283 (1930).

At the time respondent accepted the legal employment, he disclosed he was not a resident of the state in which he was authorized to practice law, Ohio, but was a resident of the state of Colorado, by his own admission, for a substantial period of time he had engaged in the practice of law in the state of Colorado without having a license from the supreme court so to do, in violation of the provisions of this section. People ex rel. Attorney Gen. v. Fitkin, 170 Colo. 388, 461 P.2d 436 (1969).

Services of an attorney not licensed in Colorado are compensable as attorney fees where no court appearances made and the work performed consisted of obtaining a variance from a municipal zoning code. Catoe v. Knox, 709 P.2d 964 (Colo. App. 1985).

Consulting services performed by an out-of-state lawyer do not constitute unauthorized practice of law under canon 3 of the Colorado code of professional responsibility and therefore may be compensated as attorney fees. Dietrich Corp. v. King Res. Co., 596 F.2d 422 (10th Cir. 1979).

Because a partnership is not a separate legal entity, but is only treated as such under partnership statutes for certain limited purposes, trial court should reconsider its finding of contempt based on theory that a Virginia partnership and individuals representing it in Colorado courts were engaged in the unauthorized practice of law. Watt, Tieder, Killian & Hoffar v. U.S. Fidelity & Guaranty Co., 847 P.2d 170 (Colo. App. 1992).

A partnership must be considered as an entity separate and apart from the general partners for purposes of defining parties who may appear for others in courts of record. E & A Assoc. v. First Nat. Bank of Denver, 899 P.2d 243 (Colo. App. 1994) (disapproving any inference to the contrary in Watt, Tieder case, also annotated under this section).

Where respondent violated this section, but it is apparent he did not do so intentionally, the duty of the court does not require his punishment. People ex rel. Colo. Bar Ass'n v. Ellis, 44 Colo. 176, 96 P. 783 (1908).

A person is not amenable to discipline for contempt of court for practicing law without a license, for his belief that he had the right to do certain things, which might be construed as practicing law, his intent to do them, or even for an overt act, where the doing of such act was neither charged nor admitted. People ex rel. Attorney Gen. v. Wicks, 101 Colo. 397, 74 P.2d 665 (1937).

Applied in People ex rel. Attorney Gen. v. Gregory, 135 Colo. 438, 312 P.2d 512 (1957).

IV. DRAFTING LEGAL DOCUMENTS.

The drafting of documents, when merely incidental to the work of a distinct occupation, is not the practice of law, although the documents have legal consequences. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

There are instruments that no one but a well trained lawyer should ever undertake to draw. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

There are other instruments common in the commercial world, and fraught with substantial legal consequences, that lawyers seldom are employed to draw, and that in the course of recognized occupations other than the practice of law are often drawn by laymen. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The actual practices of the community have an important bearing on the scope of the practice of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

A person who gives legal advice to those for whom he draws instruments, or holds himself out as competent to do so, does work of a legal nature, when the instruments he prepares either define, see forth, limit, terminate, specify, claim or grant legal rights. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

However, a person who is not a member of the bar may draw instruments such as simple deeds, mortgages, promissory notes, and bills of sale when these instruments are incident to transactions in which such person is interested, provided no charge is made therefor. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The preparation of simple real estate instruments, done without separate charge therefor by licensed real estate brokers only in connection with their established business, and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined as unauthorized practices of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

It would not be in the interest of the public welfare to restrain brokers from drafting the ordinary instruments necessary to effectuate the closing of the ordinary real estate transaction in which they are acting. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

Ordinary conveyancing, being part of the every day business of the realtor, may also be done by others without wrongful invasion of the lawyers' field and consequently is something of which the legal profession cannot claim that the public welfare requires restraint by judicial decree. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

V. ENJOINING UNLAWFUL PRACTICE OF LAW.

It is quite generally held that the right to practice law conferred by the state is a special privilege in the nature of a franchise and that the holder thereof may be protected from the invasion of the right thus vested in him. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The adequate remedy for such invasion is by injunction, and that is so whether the transgressor is an individual or a corporation, though, as to the latter, as contended, quo warranto would lie. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The right to practice law exists by virtue of a license from the state, and it may be protected from unlawful encroachment by injunction, though the act complained of is a violation of statute which prescribes a penalty. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

With or without statutory authorization or sanction, in a proper case, a person engaged in the unlawful practice may be punished for contempt and may also be enjoined from further similar unlawful action. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

Duly licensed members of the bar may invoke the jurisdiction of the courts to restrain the illegal practice of law by others. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

Attorneys, as officers of the court, may, both for themselves and all the affected members of their profession, institute and maintain a suit to challenge or enjoin the unlawful intrusion into their office and professional field by one who is not licensed to do so. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

In general a court of equity will grant an injunction only where there is imminent danger or irreparable injury or damage to the plaintiff. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

In order to restrain an unlicensed person from practicing a profession, it is not necessary to prove irreparable injury or the threat thereof where the suit is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

Plaintiffs, the Denver and Colorado Bar Associations, the chairmen of the unauthorized practices committee of each association and licensed attorneys who appear for themselves and all other licensed attorneys and on behalf of the public are entitled to an injunction to prevent the unlawful intrusion into their office and professional field of defendant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

In such a case, the extent of the damage to the property right is unimportant. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The existence or threat of real damage is enough to warrant relief. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).

The fact that no property or pecuniary interest of the plaintiff is involved is not an answer to a suit for an injunction to enjoin the practice of a profession without a license, where the action is in behalf of the public. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass'n, 135 Colo. 398, 312 P.2d 998 (1957).