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The Unauthorized Practice of Law. Balancing Need to Protect the Public and the Need for Low Income Legal Services. History of the Regulation of UPL. Regulation of the Legal Profession in General State High Courts – Inherent Powers Bar Association Bar Associations History of Regulation

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the unauthorized practice of law

The Unauthorized Practice of Law

Balancing Need to Protect the Public and the Need for Low Income Legal Services

history of the regulation of upl
History of the Regulation of UPL
  • Regulation of the Legal Profession in General
    • State High Courts – Inherent Powers
    • Bar Association
  • Bar Associations History of Regulation
    • Early on Courts UPL regulation focused on who appeared before the court
    • Outside the Court Non-laywers performed what today would constitute UPL
    • Prohibitions on UPL Rose during the Great Depression along with the integration of Bar Assocations
current regulation of upl
Current Regulation of UPL
  • State Courts
    • Inherent Powers
    • Create Practice of Law Definitions
    • Case Law
    • Some States claim exclusive domain over regulation of UPL
  • State Statutes
    • Practice of Law Definitions
  • Bar Association
    • Regulation through attorney codes of conduct and disciplinary proceedings
    • Prevent members (attorneys) from aiding or abetting a non-lawyer from performing anything that may fall within the definition of the practice of law
determining what constitutes the practice of law
Determining What Constitutes the Practice of Law
  • Practice of Law Definitions
    • State Statutes and State Court decisions determine what falls within the definition of the practice of law
    • Mostly on a case-by-case basis
    • Activities that constitute the practice of law
      • Appearing before a court or tribunal on behalf of an individual
      • Administering advice on a subject typically within the perview of “lawyer activity”
    • Exceptions
      • E.g. Do-it-yourself books or certain computer application software
need for legal services low income community
Need for Legal Services (Low Income Community)
  • ABA study – 80% or more of low-income persons are unable to obtain legal assistance
  • Legal Aid
  • Segment of population that does not qualify for legal aid, yet still can not afford legal services
    • Lawyer Referral Programs
  • UPL prohibitions restrict access to the justice system for low to moderate income individuals
dangers and risks associated with consumer access to non lawyer services
Dangers and Risks Associated with Consumer Access to Non-lawyer Services
  • Quality of Service
    • Lawyers must attend 3 years of school
    • Bar examination
    • Professional monitoring and CLE
  • Ethical Constraints
    • Duty of Loyalty, Confidentiality, Diligence, Competency, etc.
  • The Lawyer Monopoly
    • Lawyers motivated for personal reasons
    • Threat to established profession
benefits association with consumer access to non lawyer services
Benefits Association With Consumer Access to Non-lawyer Services
  • Increased Access to Justice System for Low to Moderate Income Individuals
  • Increased Efficiency
  • Increased Incentive to Incorporate Technology into the Legal Profession
possible solutions
Possible Solutions
  • In General
    • Struggle to Find Appropriate Balance Between Consumer Protection and Increased Access to the Justice System
possible solutions1
Possible Solutions
  • Complete Prohibition
    • Proponents argue…
      • Best protects consumers from dangers of nonlawyer legal services
      • Prevents misuse of judicial power
expand the interpretation of states practice of law defintions
Expand the Interpretation of States Practice of Law Defintions
  • More activities would be considered the practice of law and thus considered UPL
  • Leaves a little room for courts to determine what activities can be performed by non-lawyers
  • Restricts Public’s access to Justice System
  • Texas – leading proponent of this approach
narrow the interpretation of states practice of law definitions
Narrow the Interpretation of States’ Practice of Law Definitions
  • Reduces amount of prohibited non-lawyer activities
  • Question – When Performing Activities That do not fall within the state’s defintion of the practice of law, are lawyers still bound by same restraints?
  • Washington – leader in this approach
    • 2 definitions – one applicable to lawyers and one applicable to non-lawyers
four factor test
Four-Factor Test
  • Case-by-case basis
  • Four Factors
    • Reliability of Service
    • Potential for Conflict of Interest
    • Service’s potential to mislead consumers\
    • Whether non-lawyer has addressed privacy and confidentiality concerns
  • Problems
    • Flood Courts with litigation
    • No uniform interpretation of what constitutes UPL
expand the role of social workers
Expand the Role of Social Workers
  • Relax prohibitions for certain persons or professionals
  • Individuals are more willing to bring legal issues to social workers
  • Provide training – eventually integrate some legal training into social work master’s programs
  • Work out of local Community Centers
mandatory paralegal regulation
Mandatory Paralegal Regulation
  • Benefits
    • Discourage overbilling for non-paralegal work at paralegal rates
    • Help address the concern of protecting public from incompetence
    • Lead to increase access to the Justice System
  • Problems
    • Certification Requirements may drive up costs of paralegal services
    • Work may be shifted to members of support staff that may not be qualified to perform services
new approach expand the role of students in clinical programs
New Approach… Expand the Role of Students in Clinical Programs
  • Some schools already have existing student clinical programs
  • Potential student tasks
    • Assist in Pro-se Divorce proceedings
    • Represent clients in Real Estate Closings
    • Simple Will production
    • Estate Planning
  • Build in Increased Training for Particular Subjects
conclusion
Conclusion

Must find the appropriate Balance between protecting consumers and providing increased access to the justice system