the UPL posse
- originally posted as carolyn and monica join the UPL posse (Feb. 24, 2005)
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 (in “Three Cheers,” Feb. 24, 2005). In addition, Lisa Stone of
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.
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.
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:
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.
At the core of HALT’s efforts to reform restrictions on unauthorized practice are three
principles:
The unauthorized practice of law means saying you are a lawyer when
you are not;
Innovative partnering between lawyers and nonlawyers is permissible with
client consent after full disclosure of work and fee arrangements; and
A client or customer complaint should be required before unauthorized
practice of law proceedings can be initiated.
“NoYabutsS” 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.
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 Escariot) Award
for its campaign against the unauthorized practice of law and low-cost legal services.
Similarly, in August 2003, we awarded a JuDee was awarded to the New York Bar Association for its
online brochure You and Your Lawyer. which warns of dire consequence to be paid by any “fool”
who attempts to solve legal problems without using a lawyer.
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
