f/k/a . . . the archives

July 4, 2003

Unauthorized Practice of Law

Filed under: — David Giacalone @ 10:39 pm


– below are ethicalEsq postings and annotated web resources on this topic. use the Google Search Box to locate other postings covering the topic since the ethicalEsq weblog became f/k/a in May 2004 –


find our full list of annotated ethics links by clicking Ethics Resources on the Navigation Bar



FTC and DOJ on Defining “Practice of Law” The Federal Trade Comm’n and Dept. of Justice presented joint comments (12/20/02) on the ABA’s draft Model Definition of the Practice of Law. The federal antitrust agencies concluded that the proposed definition was overly broad and would injure consumers and competition. The agencies urged the Task Force to permit lay competition that is in the public interest and craft an appropriate definition after careful review of the harms and benefits of lay participation in providing law-related services.



ABA Task Force on the Model Definition of the Practice of Law  The Task Force made its Recommendation and Report in March ’03.  The Recommendations are discussed in a Posting on 7/01/03.  An appendix included State Definitions of the Practice of Law.


Lawyers Try to Reestablish Their Monopoly This article, by attorneys Stephen R. Elias and Ralph Warner, describes and decries current efforts before the ABA to define “the practice of law,” and gives a brief history of the organized bar’s efforts to keep nonlawyers from performing law-related tasks.


Lawyer vs. NonLawyer In an article appearing in Legal Times (02-03-2003), James C. Turner, Executive Director of the legal reform group HALT, argues against the ABA’s proposed model rule defining “practice of law” and its corollary of “unauthorized practice.” Turner says the proposed model rule “poses a major threat to the rights of millions of American consumers who choose to handle their routine legal tasks with the help of nonlawyer resources.” In 2002, HALT opposed attempts by Arizona attorneys to curb competition from non-lawyers by expanding the definition of the “unauthorized practice of law.”  On its UPL Project Home Page, HALT set forth its approach and principles:



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:




  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. 

Scriveners in Cyberspace In this Hofstra law review article (44 pp., pdf), Prof. Catherine J. Lanctot takes a close look at the issues raised by online document preparation (especially interactive programs that present solutions to a consumer’s individual fact situation) and the regulation of the unauthorized practice of law. Included is a detailed history of the organized bar’s attempts to prohibit nonlawyers from providing consumers with law-related information and services. 


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