Section 38.122 is one of the few unauthorized-practice offenses in Texas that is a felony. It is aimed at people who take money by letting others believe they are licensed attorneys.
What the Statute Says
(a) A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.
(b) An offense under Subsection (a) of this section is a felony of the third degree.
(c) Final conviction of falsely holding oneself out to be a lawyer is a serious crime for all purposes and acts, specifically including the State Bar Rules.
The Elements
- Holding oneself out as a lawyer — by words or conduct. Using the title, advertising legal services, negotiating on a client's behalf, drafting pleadings, or simply permitting a client to continue believing you are licensed.
- Intent to obtain an economic benefit for oneself. This is what separates the felony from well-meaning unlicensed help.
- Not currently licensed and in good standing. The exception requires both a current license somewhere and good standing with the State Bar of Texas and every other licensing authority. A suspended or disbarred attorney who continues to practice falls squarely within the statute.
The Notario Cases
The largest category of these prosecutions in Harris County involves immigration services. In much of Latin America a notario público is a credentialed legal professional with authority comparable to an attorney. In Texas, a notary public has no such authority. Advertising as a "notario," charging fees for immigration filings, and giving legal advice can support a charge under this section, and is frequently accompanied by allegations of theft, fraud, and deceptive trade practices.
Section 38.123 — The Misdemeanor Alternative
Section 38.123 covers the unauthorized practice of law — giving legal advice, holding oneself out as entitled to practice, or performing legal services with intent to obtain an economic benefit — and is generally a Class A misdemeanor. The distinction between the two statutes is often contested, and moving a case from 38.122 to 38.123 converts a felony into a misdemeanor.
Defenses
No holding out. Providing scrivener or translation services, preparing documents at a client's direction, or assisting with forms is not necessarily representing oneself as a lawyer. What the client was actually told, and what the advertising actually said, are the central facts.
No intent to obtain economic benefit. Assistance provided without a fee falls outside subsection (a).
Licensed and in good standing. A current license in another jurisdiction, together with good standing everywhere licensed, is a complete exception.
Mistake and reliance. Reliance on a supervising attorney's direction, or a genuine misunderstanding of licensing status, bears directly on the intent element.
Related
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.