f/k/a archives . . . real opinions & real haiku

After almost two years with no one to cover my weblogging backside on the issue of the Unauthorized Practice of Law, it is thrilling to see Carolyn Elefant at My Shingle (in “If We Can’t Beat Them, Let’s Compete With Them,” Feb. 22, 2005) and Monica Bay at The Common Scold “Three Cheers,” Feb. 24, 2005).  In addition, Lisa Stone of Legal Blog Watch has put the spotlight on her Law.com colleagues’ efforts (here and here).

Carolyn shames Illinois; Monica takes on California; earlier this month, HALT tried to set the Georgia Bar straight; and we pointed to their efforts in Virginia just last week.  The problem exists everywhere, across our dear old federalist nation.

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In addition to HALT, the most active advocates for limiting the definition of the “practice of law” — and thus the scope of ULP — have been the Federal Trade Commission and the U.S. Department of Justice.

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At HALT’s UPL page, you will find links to news items concerning treatment of UPL issues in Georgia, Conn., Nebraska, West Virginia, and more.  HALT’s position on defining the practice of law is as follows:

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One of the most effective ways to increase consumer choice in legal services would be to abolish unauthorized practice statutes. As the simple and routine legal needs of millions of Americans continue to go unmet each year, it is critical that consumers be able to utilize independent paralegals and other nonlawyer resources.
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At the core of HALT’s efforts to reform restrictions on unauthorized practice are three principles:

1.    The unauthorized practice of law means saying you are a lawyer when you are not;
2.    Innovative partnering between lawyers and nonlawyers is permissible with client consent after full disclosure of work and fee arrangements; and
3.    A client or customer complaint should be required before unauthorized practice of law proceedings can be initiated.

The Federal Trade Commission and the Department of Justice (Antitrust Division) have made numerous submissions to state bodies over the past few years concerning the definition of the practice of law.  Go here for a list that includes many examples. On March 20, 2003, the agencies submitted comments to the Georgia State Bar opposing a proposal to define the drafting of deeds and related real estate closing activity as the practice of law. The agencies argued:

“Consumers can benefit when nonlawyers compete to provide services that do not legitimately constitute the practice of law. Banning such competition is likely to increase closing costs and decrease convenience for Georgia consumers and businesses. . . . Antitrust laws and competition policy generally consider sweeping restrictions on competition harmful to consumers and justified only by a showing that the restriction is needed to prevent significant consumer injury.”

We here at f/k/a [formerly known as ethicalEsq] have long advocated for a very limited definition of the practice of law — along with increased efforts to use technology to advance the Self Help Law revolution and pro se rights for legal consumers.  See the UPL Resources Page and the Self-Help/Pro Se Page from the ethicalEsq archives.

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The following ethicalEsq work-product may interest readers who want to know more about the UPL debate:

• In the post Do Arizona’s New UPL Rules Protect Consumers or Lawyers?, we looked at Arizona’s adoption of a “certified document preparer” regime in its ULP reform efforts.
• In July 2003, we gave the Illinois State Bar Association our first “JuDee” (Judas ESQariot Award for its campaign against the unauthorized practice of law and low-cost legal  services.
• Similarly, in August 2003, we awarded a JuDee to the New York Bar Association for its online brochure (pdf.) “You and Your Lawyer“, which warns of dire consequences to pe paid by any “fool” who attempts to solve legal problems without using a lawyer.  [update: the 2008 version of the brochure contains the same warning.]
• Also, see our post DOJ & FTC Support Non-lawyers Doing Real Estate Closings in Georgia Comments made by ethicalEsq in Finding Self-Help Info on Bar Association Websites (Good Luck!) seem just as apt in the context of UPL:

If lawyers and their associations are not willing to use websites to truly inform consumers about their options, they should at least delete all the pious statements about putting the client’s interests first, living up to the highest standards of ethics, and existing to serve the public. Instead, bar association websites might conspicuously post this disclaimer:

Warning:  We are a guild, here to serve the economic interests of our members. We’ll fight (’til your last dollar) to protect you from any legal adversary and to secure your legal rights.  However, when it comes to your financial interests versus our own, we will put ours first whenever possible.

calling a big gang
down to join them…
rice field geese

yellow gang, white gang
the butterflies stake
their claims

Kobayashi Issa – translated by David G. Lanoue