UPL - Unauthorized Practice of Law or why have a license if you don't go to Court?

If you have been in practice for more than five years, you have seen the province of exclusive legal practice decline. Real Estate brokers write real estate purchase contracts (albeit within theoretically limited guidlines); financial institutions, planners and stock brokers provide estate planning; accountants do incorporations; even bar associations in some places recommend or allow the preparation of so called routine documents by non-lawyers. The State Bar of Texas attempted to confront the issue when the Board of Directors appointed the UPL Task Force. During its tenure, the Task Force has attempted to work through issues ranging from the proposed rules on Multi Disciplinary Practice (MDP) to pro bono to the inroads in legal practice by banks and accounting firms. Those who attended or participated in Task Force sessions report that the issues were serious and the contentiousness sometimes rancorous among the factions seeking influence. Two forces appear to by vying for the opportunity to appropriate the province of lawyers. One force is represented by financial and accounting institutions who wish to provide estate planning, business organization and contractual services to clients along with their other services. The State Bar is not in a financial or political position to take take on these institutions directly, and because the Texas Supreme Court claims exclusive rule-making authority on unauthorized practive, the Bar is not in a legal position to take on these institutions either. The other force are the advocates of "pro bono" (i.e., free or low cost) services. These advocates claim that the need for legal services exceeds the supply at "reasonable" cost levels and lobby for the Bar to endorse the idea that non-lawyers should be able to provide "routine" services. This kind of advocacy has resulted in the Task Force's preliminary recommendation to the Board concerning certain services in the Family Law arena. This kind of advocacy has also resulted in a substantive effort by Legal Services affiliates to post resources on line for pro se litigants: see generally this site, http://www.lawhelp.org and for Texas materials, this site, http://www.lawhelp.org/tx. These sites, remember, are brought to you by the same groups who put the Pro Bono Tax through the Texas Legislature. Here are the Bar's problems. 1. The State Bar apparently has no authority to do anything other than lobby the Texas Supreme Court. 2. The Supreme Court's activity is handled by its Unauthorized Pratice of Law Committee. The work of this committee is largely handled by volunteer attorneys. In a recent presentation one of the members of the Committee indicated that the Committee's annual budget is a mere $70,000 (as compared to the $3 million budget for a similar body in Florida). The Committee considers the problem areas to be practice by lawyers whose licenses have lapsed, immigration issues handled by non-lawyers, the sale of "living trusts," those providing legal advice under the guise of "typing services" or "pro se services," and public adjusters. Estate planning services, business entity planning and implementation, and real estate contractual advice provided by non-lawyers are apparently not considered problem areas. The Committee is under-funded by the Supreme Court, not responsible to the Bar and not prosecuting the major malfactors in this arena. 3. There is no good definition. The problem in prosecuting such areas will always be defining clearly and objectively what activity constitutes the practice of law. The American Bar Association tried its hand in September 2002 with this draft proposal (complete text here): "The 'practice of law' is the application of legal principles and judgment with regard to the circumstances of objectives of a person that require the knowledge and skill of a person trained in the law." Under this definition, the following are presumed to be the practice of law: giving advice on legal rights, selecting, drafting or completing agreements, and negotiating legal rights. You may think this is obvious enough but now there is another major problem. 4. Restraint of Trade. The United States Justice Department and the Federal Trade Commission oppose the definition as a restraint of trade. See, for example, the New York Times report here. It is fascinating to observe that substantive action against the unauthorized practice of law may well fizzle out because of the power of the opposition, internal division within the State Bar, the Bar's lack of authority to implement any remedy, the lack of a definition of the practice of law, and the opposiiton of special interests groups and the federal government to such a definition. At the same time it will be interesting to observe whether lawyers will be asked to clean up the mess that will be created by non-lawyers giving what is (whether it is called that or not) legal advice.