Unauthorized Practice of Law: How Trustees Can Accidentally Cross the Line — and the Serious Consequences That Follow

In our previous article we examined a Texas Court of Appeals decision that dismissed a trust’s appeal because its non-lawyer trustee tried to represent the trust pro se. That case is only one illustration of a much broader and often misunderstood legal concept: the unauthorized practice of law (UPL).Trustees, executors, administrators, personal representatives, and family members who step into fiduciary roles frequently stumble into UPL without realizing it. Understanding the boundaries, and the risks, is essential for anyone managing a revocable living trust, especially when the trust owns real estate or other assets that may require court action.

What Is the Unauthorized Practice of Law?

The unauthorized practice of law occurs when a person who is not licensed to practice law in a given jurisdiction performs acts that constitute the practice of law. While the precise definition varies slightly by state, the core idea is consistent: only licensed attorneys may represent the legal rights of another person or entity. An individual may appear pro se (for himself or herself), but may not appear on behalf of anyone else, including a trust, an estate, a limited liability company, or another individual.  Typical acts that courts treat as the practice of law include:

• Preparing and filing pleadings, motions, or notices of appeal
• Appearing in court or at administrative hearings on behalf of another
• Giving legal advice to third parties
• Negotiating settlements or legal rights for another person or entity

When a trustee files documents or appears in court “as Trustee of the XYZ Trust,” the trustee is acting in a representative capacity and is therefore practicing law on behalf of the trust.

Civil and Criminal Consequences of UPL

UPL is taken seriously by courts and bar authorities. Consequences can include:

Civil Consequences Include:

• Dismissal of the lawsuit, appeal, or motion (as seen in the Texas case);
• Striking of pleadings filed by the non-lawyer;
• Court-ordered sanctions, attorney’s fees, or costs assessed against the trustee personally;
• Possible personal liability for any damages caused by the unauthorized representation; and or,
• In some jurisdictions, the court may refer the matter to the state bar’s unauthorized-practice committee for sanction.

Criminal and Quasi-Criminal Consequences Include: 

• In many states, UPL is a criminal offense (often a misdemeanor; in some places a felony for repeat or egregious violations);
• Fines and, in rare cases, possible jail time;
• Injunctions prohibiting the individual from further unauthorized practice; and or,
• Contempt of court findings

Even when criminal prosecution is unlikely, the practical damage, lost cases, wasted time, and personal expense. can be severe.

Common Ways Trustees Blunder into UPLHere are real-world situations in which well-intentioned trustees  cross the line:

• Filing a Pro Se Eviction: 
  The trust owns a rental property. The tenant stops paying rent. The trustee, acting as landlord, prepares and files the eviction complaint in the trustee’s own name “as Trustee.” This is classic UPL.

• Appearing as Defendant in a Collection or Foreclosure Case: A creditor sues the trust. The trustee files an answer or appears at the hearing without a lawyer, believing “I’m just defending the trust.” Courts routinely reject this.

• Filing a small-claims action:  
  Someone owes the trust money, or the trustee seeks to recover property belonging to the deceased grantor. Filing the claim “as Trustee” in small-claims court is still UPL in most jurisdictions.

• Responding to a probate or trust contest:  
  A beneficiary challenges the trust. The trustee files pleadings or appears at hearings without counsel.

• Handling code-enforcement or zoning matters:  
  Local government issues notices against trust-owned property. The trustee responds in writing or appears at the hearing on behalf of the trust.

Special Warning for Rental Property Owners

One of the most frequent (and costly) mistakes involves rental real estate that has been conveyed into a revocable living trust.  Once title is held by the trust, the individual owner can no longer conduct evictions pro se. The landlord is now the trust, and only a licensed attorney may represent the trust in court. This is a genuine disadvantage for some property owners who previously handled their own simple evictions. Yet in today’s increasingly complex legal climate, with heightened tenant protections, procedural traps, and potential counterclaims for wrongful eviction, professional representation is generally advisable even when it is not strictly required. A lawyer is far better equipped to navigate the process correctly and protect the trust (and the trustee) from liability.

Practical Recommendations

• Assume that any court filing or appearance on behalf of the trust requires a licensed attorney.
• Budget for legal fees when the trust owns assets that may generate disputes (rental property, closely held businesses, etc.).
• Include clear language in the trust authorizing the trustee to hire counsel and pay reasonable attorney’s fees from trust assets.
• When in doubt, consult a lawyer before filing anything. A short consultation is far cheaper than a dismissed case or a UPL complaint.

Serving as a trustee is a serious fiduciary responsibility. Part of that responsibility is recognizing the limits of what a non-lawyer can do. Protecting the trust, and protecting yourself, means staying on the right side of the UPL rules.