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Essay on Unauthorized Practice of Law
Current bans on unauthorized practice of law by lay competitors are sweeping in scope and unsupportable in practice. Nonlawyers who engage in law-related activities are subject to criminal prohibitions that are inconsistently interpreted and unevenly enforced. The definition of illegal activities varies by jurisdiction, and attorneys in some states have a monopoly over routine services like completion of real estate closing forms that nonattorneys perform effectively in other states or even in other parts of the same state. The dominant approach is to prohibit individuals who are not members of the state bar from providing personalized legal assistance. For example, independent paralegals may type documents but not answer even the simplest legal questions. Courthouse facilitators are instructed to provide legal "information" but not advice and to refrain from answering "should" questions, such as "Which form should I file?" The American Bar Association recently voted to increase enforcement of unauthorized practice laws, a decision inconsistent with the prior recommendations of its own expert Commission. According to its Model Rules of Professional Conduct, "whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons." "How well" and "at what cost" are questions too often overlooked. (Ralph C. Cavanagh and Deborah L. Rhode, 86, 1976)
As experts have long noted, many nonlawyer specialists are equally or more qualified than lawyers to provide assistance on routine matters. These specialists are a diverse group. Some, like accountants or real estate brokers, already are subject to licensing requirements. Their work often involves assistance on legal issues, and competent performance necessarily involves technical violations of unauthorized practice prohibitions. Other nonlawyer providers are independent paralegals or former legal secretaries with considerable expertise in areas like uncontested divorces and administrative agency representation. Comparative research finds that.......
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