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."
ARGUMENT:
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."
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