OPINION 97-102

SUBJECT: Unauthorized practice of law by public and certified public accountants and other unlicensed persons before the Register of Wills and the Orphans' Court Division of the Courts of Common Pleas of the Commonwealth of Pennsylvania.

It is the OPINION of the Unauthorized Practice of Law Committee of the Pennsylvania Bar Association that the preparation and filing of Petitions for Probate and other documents relating to a decedent's estate with the Register of Wills and the Clerk of the Orphans' Court of the various counties and otherwise assisting personal representatives with the Administration of Decedent's Estates constitutes the Unauthorized Practice of Law as set forth in 42 Pa. C.S.A. � 2524, et seq.

BRIEF IN SUPPORT OF OPINION 97-102:

It has come to the attention of the Committee that Public and Certified Public Accountants and other persons not licensed to practice law have been preparing and filing Petitions for Probate and other documents relating to a decedent's estate with the Register of Wills and Clerk of the Orphans' Courts of the various counties and otherwise assisting personal representatives in the Administration of Decedent's Estates without the personal representatives having retained legal counsel.

It has likewise been reported that Public and Certified Public Accountants and other persons not licensed to practice law have been filing Original and Amended Inheritance Tax Returns with the Register of Wills as Agent for the Department of Revenue of the Commonwealth of Pennsylvania without the advice and direction of legal counsel for the personal representative.

Furthermore, Public and Certified Public Accountants and other persons not licensed to practice law have been publicly advertising the preparation of Inheritance Tax Returns alone or in conjunction with estate planning services, without an express disclaimer in the advertisement that the person is not authorized to practice law in the Commonwealth of Pennsylvania.

ISSUES PRESENTED:

I. Does the preparation of a petition for probate, or other document relating to a decedents estate, by a public or certified public accountant or other person not licensed to practice law, acting in a fiduciary capacity and not acting pro se, constitute the unauthorized practice of law?

Suggested Answer: Yes.

II. Does the preparation of an inheritance tax return by a public or certified public accountant or other person not licensed to practice law acting in a fiduciary capacity and not acting pro se, without the advice and direction of counsel for the personal representative, constitute the unauthorized practice of law?

Suggested Answer: Yes.

III. Does the public advertisement of preparation of inheritance tax returns, alone or in conjunction with the advertisement of estate planning services, by a public or certified public accountant or other person not licensed to practice law, constitute a misleading public representation that one is qualified to perform legal services?

Suggested Answer: Yes.

BACKGROUND:

I. REGULATION OF THE PRACTICE OF LAW IN THE COMMONWEALTH OF PENNSYLVANIA

The Office of Attorney-at-Law is limited to those "[p]ersons admitted to the Bar of the Courts of this Commonwealth..." 42 Pa. C.S.A. � 2521. "The power to regulate and define what constitutes the practice of law is vested in the judiciary, and not in the executive or legislative branches of government". In re Matter of Arthur, 15 B.R. 541, 545 (U.S. Bankruptcy Court E.D. Pennsylvania 1981, applying Pennsylvania Law). This does not prevent the Legislature from imposing additional penalties against persons engaged in the Unauthorized Practice of Law. Id.

The penalty for engaging in the Unauthorized Practice of Law is set forth in 42 Pa. C.S.A. � 2524, as amended, which reads in pertinent part:

(a) General Rule - Except as provided in subsection (b), any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer, attorney at law, attorney and counselor at law, counselor or the equivalent in any language, in such a manner as to convey the impression that he is a practitioner of the law of any jurisdiction, without being an attorney at law or a corporation complying with 15 Pa. C.S.A. ch. 29 (relating to professional corporations), commits a misdemeanor of the third degree upon a first violation. A second or subsequent violation of this subsection constitutes a misdemeanor of the first degree.

(b) Injunction - In addition to a criminal prosecution, unauthorized practice of law may be enjoined in any County Court of Common Pleas having personal jurisdiction over the defendant. The party obtaining such an injunction may be awarded costs and expenses incurred, including reasonable attorney's fees, against the enjoined party. A violation of subsection (a) is also a violation of the act of December 17, 1968 (P.L. 1224, No. 387), (73 P.S. Section 201 - 1, etc.) known as the Unfair Trade Practices and Consumer Protection Law.

However, restraining the Unauthorized Practice of Law is not limited to the imposition of Statutory Penalties. The Courts of this Commonwealth have recognized that, in most cases, the imposition of a criminal penalty alone is not sufficient to protect the public from the continued unauthorized practice of law. See Dauphin County Bar Assoc. v. Mazzacaro. 465 Pa. 545 (1976).

Additionally, the Courts of this Commonwealth have held that duly licensed members of a profession, including licensed attorneys, have standing to file an Action in Equity to enjoin the unauthorized practice of that profession. See Childs v. Smeltzer, 315 Pa. 9 (1934); Shortz v. Farrell, 327 Pa. 81 (1937); Dauphin County Bar Assoc. v. Mazzacaro. supra.

II II. CONSUMER PROTECTION AFFORDED BY THE PROHIBITION AGAINST UNLICENSED PRACTICE.

The purpose of prohibiting the Unauthorized Practice of Law is not to "secure to lawyers a monopoly, however deserved, but by preventing the intrusion of inexpert and unlearned persons in the practice of law, to assure to the public adequate protection in the pursuit of justice...which society knows no loftier aim." Shortz, supra at 91. When representations of competence to practice law are "made by persons not adequately trained or regulated, the dangers to the public are manifest." Dauphin County Bar Assoc. v. Mazzacaro, supra, at 551.

"A layman who seeks legal services often is not in a position to judge whether he [or she] will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he [or she] is subject to the regulations of the legal profession."

Id. citing E.C. 3-4 Code of Professional Responsibility. Furthermore, the "client" may be left without any way to recover for their losses in the event of malpractice by an unlicensed individual.

III. JURISDICTION OF THE REGISTER OF WILLS.

The Constitution of the Commonwealth of Pennsylvania lists the Register of Wills as one of the several Enumerated County Officers. PA. CONST. ART. 9, � 4, adopted April 23, 1968. The jurisdiction of the Register is set forth in 20 Pa. C.S.A. � 901, as follows:

"Within the County for which [he or she] has been elected or appointed, the Register shall have jurisdiction of the probate of Wills, the Grant of Letters to a Personal Representative, and any other matters as provided by law."

The Register of Wills has long been recognized as a Judicial Officer of a Court not of record. See Morris v. Vanderen, I Dall. 67 (1780). Pennsylvania Supreme Court Orphans' Court Rule 10.1 dictates "The practice, procedure and forms used before a Register of Wills, shall be in substantial conformity with the practice, procedure and forms approved by the Supreme Court of this Commonwealth or, in the absence thereof, the practice, procedure and forms approved by the local Orphans' Court Division."

Furthermore, Pennsylvania Supreme Court Orphans' Court Rule 10.2 dictates "Appeals from Judicial Acts or proceedings of the Register of Wills and the practice and procedure with respect thereto, shall be prescribed by local rules." All Appeals and proceedings from the Register are filed with the Clerk of the Orphans' Court Division.

IV. JURISDICTION OF THE CLERK OF THE ORPHANS' COURT.

The Constitution of the Commonwealth of Pennsylvania provides that:

"...The Clerk of the Orphans' Court in a judicial district now having a separate Orphans' Court should become the Clerk of the Orphans' Court division of the Court of Common Pleas, and these officers shall continue to perform the duties of the office and to maintain and be responsible for the records, books and dockets as heretofore. In judicial districts where the Clerk of the Orphans' Court is not the Register of Wills, he shall continue to perform the duties of the office and to maintain and be responsible for the records, books and dockets as heretofore and otherwise provided by law." PA. CONST. ART. 5, Section 15.

Additionally, 42 Pa. C.S.A. � 2771, et seq. establishes a Clerk of the Orphans' Court division of the Court of Common Pleas in each county or multi-county Judicial District of this Commonwealth, and provides inter alia that the Clerk shall be the keeper of the record and seal of the Orphans' Court Division."

I. THE PREPARATION OF A PETITION FOR PROBATE OR OTHER DOCUMENT RELATING TO A DECEDENT'S ESTATE BY A PUBLIC OR CERTIFIED PUBLIC ACCOUNTANT OR OTHER PERSON NOT LICENSED TO PRACTICE LAW ACTING IN A FIDUCIARY CAPACITY, AND NOT PRO SE, CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW.

A. DEFINITION OF THE PRACTICE OF LAW.

The Supreme Court of this Commonwealth has repeatedly held that the boundaries of the practice of law are without precise definition. Furthermore, the Court recognized that "An attempt to formulate a precise definition [of the practice of law] would be more likely to invite criticism than to achieve clarity." Shortz v. Farrell, supra at 84.

While a precise definition has not been articulated, it is clear that an attorney-at-law applies [his or her] knowledge in three principal professional activities:

(1) The attorney instructs and advises clients in regard to the law, so that they may properly pursue their affairs and be informed as to their rights and obligations.

(2) The attorney prepares client's documents requiring familiarity with legal principles beyond the ken of the ordinary layman...

(3) The attorney appears for clients before public tribunals to whom are committed the function of determining rights of life, liberty and property according to the law of the land, in order that [he or she] may assist the deciding official in the proper interpretation and enforcement of the law...

Shortz, supra. at 84-85.

Furthermore, in considering when activity is encompassed within the scope of the practice of law, the type of tribunal or character of the proceeding is unimportant. "Where the application of legal knowledge and the technique is required, the activity constitutes [the practice of law] even if conducted before a so-called Administrative Board or Commission. It is the character of the Act and not the place it is performed which is the decisive factor." Id. at 85.

"When a person holds [himself or herself] out to the public as competent to exercise legal judgment, [he or she] implicitly represents that [he or she] has the technical competence to analyze legal problems and the requisite character qualifications to act in a representative capacity." Dauphin County Bar Assoc. v. Mazzacaro, supra at 551.

B. PRACTICE BEFORE THE REGISTER OF WILLS AND THE ORPHANS' COURT.

Practice before the Register of Wills and the Orphans' Court involves much more than rote preparation and filing of pre-printed forms. The form "Petition for Probate and Grant of Letters" approved by our Supreme Court, clearly recognizes this fact as it specifically provides a location for the personal representative's attorney to enter his or her appearance of record. See Pa. O.C. Rule 10.1, together with the Section Comment and corresponding published form.

The preparation and filing of a Petition for Probate, and all of the other documents relating to a Decedent' Estate, requires an intricate knowledge of the Probate, Estates & Fiduciaries Code, (20 Pa. C.S.A. Section 102), the Supreme Court Orphans' Court Rules (42 Pa. C.S.A. � 101 et seq.,) the Local Orphans' Court Rules, and the Inheritance and Estate Tax Law (72 Pa. C.S.A. � 1701, et seq.). Determining who is entitled to Letters, the type of Letters to be requested, the requirements of Notice to Beneficiaries and Government Agencies, and whether Letters are required or a Small Estate Petition is desirable, are only a few of the preliminary issues a personal representative must understand prior to filing any Petition with the Register or the Clerk.

Further, Supreme Court Orphans' Court Rule 3.1 provides that ... "the pleading and practice shall conform to the pleading and practice in equity of the local Court of Common Pleas".

Supreme Court Orphans' Court Rule 6.12(a) specifically states that in the situation when the administration of an estate has not been completed within two (2) years of the decedent's death, "the personal representative or counselor" shall file ... a report with the Register of Wills showing the date by which the personal representative or counsel reasonably believes administration will be completed".

Supreme Court Orphans' Court Rule 6.12(b) provides that "Upon completion of the administration of an estate, the personal representative or his, her, or its counsel shall file with the Register of Wills a report..."

Supreme Court Orphans' Court Rule 6.12(e) states that "Upon the grant of letters, the Register shall give a copy of this Rule to each personal representative and his, her, or its counsel".

Supreme Court Orphans' Court Rule 6.12(f) provides that "after at least ten (l0) days prior notice to a delinquent personal representative and counsel, the Clerk of the Orphans' Court shall inform the Court of the failure to file the report required by this Rule with a request that the Court conduct a hearing to determine what sanctions, if any, should be imposed".

The form of STATUS REPORT UNDER RULE 6.12 requires the signator of that form to indicate whether they are the "personal representative" or "counsel for personal representative".

Supreme Court Orphans' Court Rule 13.1 provides that "A foreign distributee or claimant may be represented by counsel who possesses a valid duly authenticated Power of Attorney executed by the distributee or claimant".

Supreme Court Orphans' Court Rule 13.3, pertaining to a REPORT BY FIDUCIARY pertaining to the unknown existence, identity or whereabouts of a distributee, etc. provides that ... "the fiduciary or his counsel shall submit ... a written report ...".

When a Public or Certified Public Accountant or other person not licensed to practice law solicits for hire the preparation and filing of a Petition for Probate or other document related to a Decedent's Estate or attempts to give legal advice to the personal representative during the Administration of the Estate, that person expressly or impliedly holds himself or herself out to the personal representative as being qualified to analyze and interpret the Probate, Estate & Fiduciaries Code, Supreme Court and Local Orphans' Code Rules and Inheritance and Estate Tax Law. A Public or Certified Public Accountant or other person not licensed to practice law is not qualified by education or expertise to render such advice and counsel and is not a legal counsel as set forth in the Pennsylvania Supreme Court Orphans' Court Rules.

In Re: Graham, 30 Pa. D. & C. 53 l (Erie. Co. 1937) (en banc) directly addressed these issues. In Graham, the Respondent, a Justice of the Peace, regularly prepared Wills, Inventories, Inheritance Tax Returns, Petitions for Guardians, Petitions Sur Audit, and advertised himself as "Agent" in many estates. The Respondent also filed papers before the Register of Wills, advertised in the newspaper the drawing of legal papers, and even appeared in open Court. See Graham, supra, at 533 - 534. President Judge Waite, speaking for the Graham Court. held that the Orphans' Court had "the authority to pass upon persons appearing before it" and the Register of Wills, who is the Clerk and Record Keeper of the Court". Id. at 532. The Court denounced Respondent's conduct as constituting the Unauthorized Practice of Law and entered its Decree enjoining him from further violation as follows:

(1) That Respondent be and he is hereby enjoined from drawing Wills or preparing or giving legal advice with respect to Wills, Inventories, Inheritance Tax Returns, Personal Property Tax Returns, Accounts, Petitions Sur Audit, and without limiting the foregoing, preparing for others, all Petitions or papers incidental to the practice of law in the Orphans' Court or before the Register of Wills;

(2) That Respondent be and he hereby is enjoined from advertising or holding himself out as [an] attorney or one authorized to draw legal papers; and

(3) That Respondent be and hereby is enjoined from the practice of law, without prejudice, however, to his right to act solely in his personal business...

Graham, supra, at 534.

Although the Register of Wills has been replaced by the Clerk of the Orphans' Court, as official keeper of the record, protection of the public interest requires today, as it did then, that unlicensed persons be enjoined from the practice of law before the Register of Wills and the Clerk of the Orphans' Court. There is no less restrictive alternative. Compare Commonwealth v. Heydt. 47 Pa. D.& C. 287 (Lebanon Co., 1943) (Preparation of Statement of Claim by Justice of the Peace, constitutes the Unauthorized Practice of Law); Walker v. Kahn. 31 Pa. D & C 620 (Allegheny Co. 1938) (Preparation of Liquor License Application by Insurance Agent where issues requiring legal interpretation enjoined as the Unauthorized Practice of Law); Blair et al. v. Motor Carriers Service Bureau. Inc. et al., 40 Pa. D. & C. 413 (Phila. Co. 1939), (appearance before Pennsylvania Public Utility Commission, preparation of documents for said pleadings, and rendering advice concerning the construction of statutes by a corporation service enjoined as the Unauthorized Practice of Law.)

Furthermore, any fee generated in the performance of "legal services" by a person not authorized to practice law will be subsequently ordered "disgorged" or "refunded" as a matter of public policy. See In Re: Arthur, supra, at 548; See also In Re: Pine Grove Bank, 7 Sch. Reg. 136, 141 (1939).

C. UNAUTHORIZED PRACTICE OF LAW BY ACCOUNTANTS

The CPA Law as amended 1966, Dec. 4, P.L. 851 No. 140, is found in 63 P.S. � 9.1 etc.

The term "public accounting" is defined in � 9.2 as "offering to perform or performing for a client or potential client: (1) Attest activity. (2) Other professional services involving the use of accounting skills, including, but not limited to, management advisory or consulting services, business valuations, financial planning, preparation of tax returns or furnishing of advise on tax matters by a person holding out as a certified public accountant, public accountant or firm."

Section 9.3(a) pertaining to the "Examination and Issuance of Certificate" provides that the written examination by an individual for their obtention of a certificate of certified public accountant must cover business law and professional responsibilities, auditing, accounting, reporting and financial accounting and reporting.

Section 9.4 entitled "Education Requirements" provides that an individual is permitted to take the examination provided that he has graduated with either a Baccalaureate Degree from an approved college or university and has completed courses in accounting, auditing, business law, finance and tax subjects of a content satisfactory to the State Board of Accountancy, as well as other courses.

Section 9.4(a) entitled "Experience Requirements" sets forth the amount of experience that is required which must be in public accounting or as an internal auditor or an auditor with a unit of Federal, State or Local government and must include a minimum number of hours of Attest Activity.

The term "Attest Activity" is defined in � 9.2 to mean "an examination, audit, review, compilation or other agreed-upon procedure with respect to financial information, together with the issuance of a report expressing or disclaiming an opinion or other assurance on the information. "

Section 9.8(b) provides for the issuances of biennial licenses to engage in the practice of public accounting.

Section 9.9(a) entitled "Grounds for Discipline" in � (a)(16) provides for discipline for those engaging in unprofessional conduct.

Section 9.9(a)(c) defines "unprofessional conduct" to mean the undertaking to perform professional services that the certified public accountant, public accountant or firm cannot reasonably expect to complete with professional competence, failure to exercise due professional care and the performance of professional services, failure to adequately plan and supervise the performance of professional services, the failure to obtain sufficient data to afford a reasonable basis for conclusions or recommendations in relation to any professional services performed, or failure to comply with any standard promulgated by any recognized public or private standard-setting body that is applicable to the professional service being performed.

49 Pa. Code � 11.1 etc. contains the Rules and Regulations of the State Board of Accountancy

Section 11.1 entitled "Definitions", defines the following:

(1) Attest Function- A written communication that expresses a conclusion about the reliability about a written assertion which may take the form of an audit, review or compilation of a financial statement or an examination of perspective financial information.

(2) Client- The person or entity which retains a licensee for the performance of professional services.

(3) Financial Statement- A statement and footnotes related to the statement that purport to show a financial position which relates to a point in time or changes in financial position which relate to a period of time. The term includes statements which use a cash or other incomplete basis of accounting. The term also includes balance sheets, statements of income, statements of retained earnings, statements of changes in financial position and statements in changes in owner's equity. The term does not include incidental financial data included in management advisory services reports to support recommendations to a client, tax return or supporting schedules.

(4) Practice of public accounting- The offering to perform, or the performing, for a client or potential client services involving the use of accounting or auditing skills, management advisory or consulting services, preparation of tax returns or furnishing of advice on tax matters, while holding ones self in a manner that states or implies that one is a licensee.

(5) Professional service- A service performed or offered to be formed by a licensee for a client in the course of the practice of public accounting.

Section 11.8 entitled "Use of the Designation "Certified Public Accountant" and the abbreviation "CPA" in the practice of public accounting indicates that only the identified individuals may use the designation Certified Public Accountant, the abbreviation CPA, and other designations which suggest that the user is a Certified Public Accountant in the practice of public accounting.

Section 11.7 entitled "Use of the Designation "Public Accountant" and the abbreviation "PA," provides that only the identified individuals and entities may use the designation Public Accountant, the abbreviation PA and other designations which suggests that the user is a public accountant.

Section 11.23 entitled "Competence" provides that a licensee may not undertake any engagement for the performance of professional services which he cannot reasonably expect to complete with due professional competence including compliance, when applicable, with �� l 1.27 and 11.28 (relating to auditing standards and other technical standards; and accounting principles).

Section 11.26 entitled "Incompatible Occupations," provides that a licensee may not concurrently engage in the practice of public accounting and in another business or occupation which impairs his independence or objectivity in rendering professional services.

Section 11.32 entitled "Acting Through Others" provides that a licensee may not permit others to carry out on his behalf, either with or without compensation, acts which, if carried out by the licensee, would place him in violation of this Chapter or of the Act.

Section 11.53 entitled "Classification of Candidates" provides that candidates who hold either Baccalaureate Degrees or Master Degrees must have minimum semester credits in accounting subjects and qualified experience in public accounting or as an auditor with a unit of government.

Section 11.5 entitled "Qualified Experience" provides that a minimum of 800 hours of total qualified experience must be obtained in (1) audits of financial statements in accordance with GAAS, (2) reviews of financial statements in accordance with SSARS, (3) compilations of financial statements with complete disclosure in accordance with SSARS, (4) internal audits in an established internal auditing department which meet accepted standards, (5) training sessions on the attest function, (6) other auditing in accordance with accepted standards which leads to the expression of a written opinion, including: (i) reviews regarding internal control, (ii) government audit agencies rendering an opinion and report, (iii) operations audit review, (iv) compliance audits and (v) expressing an opinion on financial forecasts and projections.

Section 11.55 provides that the remaining hours of qualified experience may be obtained in one (1) or more of the following: (1) preparation of income and non-profit tax returns, (2) tax research which is properly documented, (3) representation before a government agency on a tax matter, (4) financial forecasts, analysis and projections, (5) management advisory services which meet AICPA standards, (6) management and supervision of accounting functions and preparing financial statements for profit or not-for-profit entities, and (7) professional accounting-related work in an accounting firm.

Section 11.63 entitled "Continuing Education Subject Areas" identifies acceptable areas for continuing education to be (1) accounting and auditing (2) advisory services, (3) management, (4) professional skills development, (5) specialized knowledge and applications, (6) taxation.

Section 11.65 entitled "Criteria for Continuing Education Programs" provides that in order to qualify as a continuing education program, a program shall be a program of learning which contributes directly to the maintenance of professional competence of a certified public accountant or public accountant or offer subject matter enumerated in � 11.63.

A review of all of the above unequivocally indicates that the Profession of Accountancy is confined to those matters set forth in � 11.55 as matters customarily undertaken by accountants, whether public or certified public accountants. There is nothing in either the Licensing Act or the rules and regulations, which suggest that a public accountant or a certified public accountant is authorized or qualified to represent clients in court or before court related officers or to provide legal advice to clients.

II. THE PREPARATION OF AN INHERITANCE TAX RETURN BY A PUBLIC OR CERTIFIED ACCOUNTANT OR OTHER PERSON NOT LICENSED TO PRACTICE LAW, ACTING IN A FIDUCIARY CAPACITY AND NOT ACTING PRO SE, WITHOUT THE ADVICE AND DIRECTION OF LEGAL COUNSEL FOR THE PERSONAL REPRESENTATIVE, CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW.

The preparation of Inheritance Tax Returns requires specific knowledge of the Probate, Estates & Fiduciaries Code of the Commonwealth of Pennsylvania, as well as the Inheritance and Estate Tax Act. See Statutory Cross References, supra.

For example, there are instances when a Decedent's Will directs the payment of specific and general legacies (taxable and charitable) in excess of available funds. There are also instances where property identified in a Will is no longer owned by the Decedent at the time of death. A determination must then be made whether the gift is specific or general, and whether or not ademption occurs in full or in part. In either instance, abatement or ademption occurs as set forth in the Probate, Estates & Fiduciaries Code and the identification and extent of taxable or charitable bequests cannot be determined for Inheritance Tax purposes until these matters are resolved.

Although a Public or Certified Accountant or other person not licensed to practice law may be technically competent to prepare and file an Inheritance Tax Return after all legal issues have been identified and resolved, any person not licensed to practice law who prepares and files an Inheritance Tax Return, without the advice and consent of legal counsel for the personal representative, renders legal advice, and, therefore, engages in the Unauthorized Practice of Law. See Graham, supra at 534. Compare Kountz et al. v. Rowlands, 46 Pa. D. & C. 461 (Allegheny Co. 1942) (appearance before Board of Assessors by Laymen seeking refund of tax improperly paid required statutory interpretation and were therefore enjoined as Unauthorized Practice of Law); Blair et al. v. Motor Carriers Service Bureau, Inc. et al., 40 Pa. D. & C. 413 (Phila. Co. 1939) (rendering of legal advice by laymen concerning construction of tax statute or decision affecting tax return enjoined as Unauthorized Practice of Law).

Moreover, a Public or Certified Public Accountant or other person not licensed to practice law may not claim that their conduct is immune from prosecution or injunction as the mere preparation of a legal document in conjunction with their normal course of business. Nowhere in the definition of the practice of public or certified public accounting or in the definition of the practice of any other profession, is the interpretation of statutes or rendering legal advice authorized. See Code of Professional Conduct, American Institute of Certified Public Accountants, Definitions: "Practice of Public Accounting", and the Pennsylvania CPA Law,

supra.

III. THE PUBLIC ADVERTISEMENT OF THE PREPARATION OF INHERITANCE TAX RETURNS, ALONE OR IN CONJUNCTION WITH THE ADVERTISEMENT OF ESTATE PLANNING SERVICES, BY A PUBLIC OR CERTIFIED ACCOUNTANT OR OTHER PERSON NOT LICENSED TO PRACTICE LAW WITHOUT AN EXPRESS DISCLAIMER THAT THE PERSON CAN ONLY DO SO UNDER THE ADVICE AND DIRECTION OF LEGAL COUNSEL FOR THE PERSONAL REPRESENTATIVE CONSTITUTES A MISLEADING PUBLIC REPRESENTATION THAT ONE IS QUALIFIED TO PERFORM LEGAL SERVICES.

The proper preparation of Inheritance Tax Returns requires construction and interpretation of the Probate, Estates & Fiduciaries Code and Inheritance Tax Law. Therefore, advertising the preparation of Inheritance Tax Returns alone or in conjunction with the advertisement of estate planning services, without an express disclaimer that the person can only do so under the advice and direction of legal counsel for the personal representative, implies competence and authority to engage in the practice of law.

The inherent danger to the public lies not in the words of the advertisement itself, which often appear benign, but rather in its interpretation, which when limited to the express intentions of the advertiser, thus opens the door to his or her "secret accomplishment of the prohibited purpose after the customer has been lured by the advertisement to [his or her] office." Burch et al. v. Mellor. et al., 43 Pa. D. & C. 597, 601 (1942).

If the Public or Certified Public Accountant or other person not licensed to practice law were permitted to advertise the preparation of Inheritance Tax Returns without a proper disclaimer and advice to the contrary, a personal representative could reasonably believe that the advertiser was competent to analyze relevant legal issues and was competent to give continuing legal advice on related administrative matters. This is clearly not permitted!

For example, the administration of a Decedent's Estate cannot be properly concluded without either a Formal Audit, Audit and Adjudication, or an Informal Account, indemnification, receipt and release. A Public or Certified Public Accountant or other person not licensed to practice law has neither the technical competence to prepare these legal documents nor the authority to file them with the Clerk of the Orphans' Court.

To allow a Public or Certified Public Accountant or other person not licensed to practice law to attract "estate business" without giving the perspective "client" notice that [he or she] will have to go "elsewhere and hire the services of a lawyer to [finish the job]..." constitutes a material misrepresentation that the person is competent and authorized to perform said legal services. See Burch, supra at 603.

Finally, Courts have enjoined similar activities that were believed to fall "within the shadow zone between legitimate activity and the Unauthorized Practice of Law." See Kountz, supra, at 463. Clearly, the advertisement of Inheritance Tax Return preparation, without the necessary disclaimer, falls within this "shadow zone."