Can I Prepare Affidavits if I'm Not an Attorney?

Full question:

I do independent land work and review for an engineering firm as a private contractor. I am not an attorney. Is it legal to prepare simple Affidavits for them?

Category: Courts
Subcategory: Attorneys
Date: 04/07/2025
State: North Dakota

Answer:

It is possible that such services could be construed as the unauthorized practice of law. Typically, the affiant’s statement is transcribed and signed. If you were to word the statement given or advise on what to state, it would be a liability factor. There is a fine line between providing legal information and giving legal advice. Providing information is acceptable; giving legal advice is not.

The unauthorized practice of law is engaging in the practice of law by persons or entities not authorized to practice law pursuant to state law or using the designations “lawyer,” “attorney at law,” counselor at law,” “law,” “law office,” “J.D.,” “Esq.,” or other equivalent words by any person or entity not authorized to practice, the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in the state.

Laws vary by state. The following is an example of one state's definition of providing legal advice or services to another:

* Preparing any document in any medium intended to affect or secure legal rights for a specific person or entity;
* Preparing or expressing legal opinions;
* Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitrations and mediations;
* Preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or
* Negotiating legal rights or responsibilities for a specific person or entity.

FAQs

What is the independent contractor rule?

The independent contractor rule determines the relationship between a worker and a business. An independent contractor is typically self-employed and works under a contract for specific tasks, without being controlled by the employer in how those tasks are completed. This means they have more freedom compared to employees, but they also bear more responsibility for their taxes and benefits. The IRS uses various criteria, such as behavioral control and financial control, to classify workers as independent contractors or employees.

What not to do with an independent contractor?

When working with independent contractors, avoid treating them like employees. This includes not dictating how they perform their work or requiring them to follow a strict schedule. Additionally, do not withhold taxes from their pay or provide employee benefits, as this could misclassify them and lead to legal issues. Ensure clear contracts are in place to outline the scope of work and payment terms.

What makes an independent contractor independent as opposed to an agent?

An independent contractor operates under a contract to perform specific tasks and is not subject to the control of the employer regarding how the work is done. In contrast, an agent acts on behalf of another party (the principal) and may have authority to make decisions or enter contracts for them. The key difference lies in the level of control and the nature of the relationship with the hiring party.

What makes an independent contractor independent?

An independent contractor is considered independent due to their autonomy in how they complete their work. They typically set their own hours, choose their methods, and work for multiple clients. This independence distinguishes them from employees, who are subject to the employer's control and direction. The IRS and state laws provide criteria to help determine this classification.

What is the 2 year contractor rule?

The '2-year contractor rule' often refers to a guideline used by some states regarding the classification of workers. It suggests that if a contractor has been working for the same client for more than two years, they may be considered an employee rather than an independent contractor, depending on the nature of the work and control exercised by the client. However, specific rules vary by state, so it's essential to consult local laws.

How do I prove I am an independent contractor?

To prove you are an independent contractor, maintain clear documentation of your contracts, invoices, and communications with clients. Show evidence of your business structure, such as a business license or tax ID. Additionally, keep records of your work methods, client relationships, and financial independence, such as having multiple clients and setting your own hours. This documentation can help establish your status if questioned.