Comments on: Unauthorized Practice of Law http://blogs.law.harvard.edu/ethicalesq breathless punditry and one-breath poetry with David Giacalone Fri, 11 Sep 2009 18:58:52 -0400 http://wordpress.org/?v=2.8.4 hourly 1 By: JOHN A. TATOIAN ESQ. http://blogs.law.harvard.edu/ethicalesq/unauthorized-practice-of-law/comment-page-1/#comment-88580 JOHN A. TATOIAN ESQ. Sun, 18 Nov 2007 20:06:50 +0000 http://blogs.law.harvard.edu/formerlyknownas/unauthorized-practice-of-law/#comment-88580 The purported primary purpose of UPL statutes is to protect the public from the incompetence of individuals without proper legal training. Unfortunately, the practical application of these statutes is extremely "bouncey", and the motives behind enacting them "dicey" at best( some say the real purpose behind the UPL statutes is the continued protection of the current legal monopoly). I query what would happen if states let the marketplace rule, allowing consumers freedom to choose among a myriad of legal service options. Wouldn't the practical result be the marketplace weeding out the incompetent, while the strong and competent survive? If a consumer was harmed, wouldn't they still have available to them the various other remedies currently available; civil action, administrative action from consumer protection etc. ? Seems the only difference would be an inability to criminally prosecute the alleged offender based on a statute which fails to clearly define the conduct which is prohibited. Thoughts...comments etc.?? The purported primary purpose of UPL statutes is to protect the public from the incompetence of individuals without proper legal training. Unfortunately, the practical application of these statutes is extremely “bouncey”, and the motives behind enacting them “dicey” at best( some say the real purpose behind the UPL statutes is the continued protection of the current legal monopoly). I query what would happen if states let the marketplace rule, allowing consumers freedom to choose among a myriad of legal service options. Wouldn’t the practical result be the marketplace weeding out the incompetent, while the strong and competent survive? If a consumer was harmed, wouldn’t they still have available to them the various other remedies currently available; civil action, administrative action from consumer protection etc. ? Seems the only difference would be an inability to criminally prosecute the alleged offender based on a statute which fails to clearly define the conduct which is prohibited. Thoughts…comments etc.??

]]> By: David Giacalone http://blogs.law.harvard.edu/ethicalesq/unauthorized-practice-of-law/comment-page-1/#comment-62200 David Giacalone Thu, 25 Oct 2007 16:26:07 +0000 http://blogs.law.harvard.edu/formerlyknownas/unauthorized-practice-of-law/#comment-62200 Thanks for the Comment, David. You make some factual assumptions that I cannot possibly verify. Having choices never means that consumers will always make the best choices, but it opens up possibilities that can bring quality, innovation and pricing options otherwise not available -- and create competition that improves attorney performance. Your remarks beg a couple important questions: For example, In how many of those transactions did the consumer have attorney representation? How many of those attorneys offered relevant, useful advice (and why was it ignored)? Would receiving the advice have changed the actions of unrepresented consumers? How often did the nonlawyers in fact give the kinds of explanations you are assuming were not given? By the way, in my experience, attorneys handling closings give very little advice (and have underlings perform most of the tasks). Thanks for the Comment, David. You make some factual assumptions that I cannot possibly verify. Having choices never means that consumers will always make the best choices, but it opens up possibilities that can bring quality, innovation and pricing options otherwise not available — and create competition that improves attorney performance.

Your remarks beg a couple important questions: For example, In how many of those transactions did the consumer have attorney representation? How many of those attorneys offered relevant, useful advice (and why was it ignored)? Would receiving the advice have changed the actions of unrepresented consumers? How often did the nonlawyers in fact give the kinds of explanations you are assuming were not given?

By the way, in my experience, attorneys handling closings give very little advice (and have underlings perform most of the tasks).

]]> By: David Puryear http://blogs.law.harvard.edu/ethicalesq/unauthorized-practice-of-law/comment-page-1/#comment-62197 David Puryear Thu, 25 Oct 2007 16:01:38 +0000 http://blogs.law.harvard.edu/formerlyknownas/unauthorized-practice-of-law/#comment-62197 The rash of predatory lending, that has led to the current subprime mortgage foreclosure crisis, has as one of its main underpinnings the use of non-attorneys for accomplishment of both title searching and loan closings. As a consequence of no involvement by anyone with an ethical obligation to explain the terms of the documents being signed, many borrowers signed up for outrageous loan terms. In these same transactions, fees were charged that exceeded in many instances the fees for similar services that would have been charged by licensed attorneys. Bad outcomes for consumers, no offsetting economic advantage for consumers. An object lesson in the "benefits" of nonlawyers taking over traditional legal services. The rash of predatory lending, that has led to the current subprime mortgage foreclosure crisis, has as one of its main underpinnings the use of non-attorneys for accomplishment of both title searching and loan closings. As a consequence of no involvement by anyone with an ethical obligation to explain the terms of the documents being signed, many borrowers signed up for outrageous loan terms. In these same transactions, fees were charged that exceeded in many instances the fees for similar services that would have been charged by licensed attorneys. Bad outcomes for consumers, no offsetting economic advantage for consumers. An object lesson in the “benefits” of nonlawyers taking over traditional legal services.

]]> By: JOHN A. TATOIAN ESQ. http://blogs.law.harvard.edu/ethicalesq/unauthorized-practice-of-law/comment-page-1/#comment-22197 JOHN A. TATOIAN ESQ. Wed, 25 Apr 2007 01:08:17 +0000 http://blogs.law.harvard.edu/formerlyknownas/unauthorized-practice-of-law/#comment-22197 Unfortunately, most state's unauthorized practice of law statutes are befuddling at best and unconstitutionally vague at worst. Most states subject the offender to both civil and criminal penalties, although some states, Connecticut for example, provide an exemption from criminal penalties to lawyers who are both employees of an entity within the state and licensed to practice by the highest court in another jurisdiction. However, the age old question still remains unanswered; what constitutes the practice of law? A majority of states seem to employ the "facts to law" test, specifically, the dissemination of advice whereby the actor applies substantive law to the facts of an individual's specific situation, and where such advice would substantially affect one's legal rights generally constitutes the practice of law. However, there's a lot of room for leeway in that definition, and concurrently, a lot of room for abuse of the rule itself. In sum, there is an inverse relationship between the clarity of a rule and its potential for abuse. It's not uncommon for lawyers to wield unauthorized practice of law statutes during the course of civil litigation in order to gain an unfair advantage in such proceeding, sometimes conspiring with disciplinary counsel to accomplish their avaricious result. While I support restrictions on the right to practice law in the interest of public safety and concern, I would clarify its definition in the interest of procedural due process, as well as provide some "safe harbors" for in house counsel and multi-jurisdictional practioners. Possibly statutes could provide that no complaint can be issued against an alleged offender until and unless an actual victim exists. This would prevent opprobrious lawyers from bringing forth complaints for their own self interests. Additionally, statutes should provide a complete exemption for in house counsel employed by an entity within the state provided counsel is licensed by the highest court in another jurisdiction. One last clause could provide a "safe harbor" for out of state of counsel on the condition they have a "sponsoring counsel" who takes responsibilty for the out of state counsel's work. As the old saying goes, " we dance around the circle and suppose, but the secret sits in the middle and knows." Unfortunately, most state’s unauthorized practice of law statutes are befuddling at best and unconstitutionally vague at worst. Most states subject the offender to both civil and criminal penalties, although some states, Connecticut for example, provide an exemption from criminal penalties to lawyers who are both employees of an entity within the state and licensed to practice by the highest court in another jurisdiction. However, the age old question still remains unanswered; what constitutes the practice of law? A majority of states seem to employ the “facts to law” test, specifically, the dissemination of advice whereby the actor applies substantive law to the facts of an individual’s specific situation, and where such advice would substantially affect one’s legal rights generally constitutes the practice of law. However, there’s a lot of room for leeway in that definition, and concurrently, a lot of room for abuse of the rule itself. In sum, there is an inverse relationship between the clarity of a rule and its potential for abuse. It’s not uncommon for lawyers to wield unauthorized practice of law statutes during the course of civil litigation in order to gain an unfair advantage in such proceeding, sometimes conspiring with disciplinary counsel to accomplish their avaricious result. While I support restrictions on the right to practice law in the interest of public safety and concern, I would clarify its definition in the interest of procedural due process, as well as provide some “safe harbors” for in house counsel and multi-jurisdictional practioners. Possibly statutes could provide that no complaint can be issued against an alleged offender until and unless an actual victim exists. This would prevent opprobrious lawyers from bringing forth complaints for their own self interests. Additionally, statutes should provide a complete exemption for in house counsel employed by an entity within the state provided counsel is licensed by the highest court in another jurisdiction. One last clause could provide a “safe harbor” for out of state of counsel on the condition they have a “sponsoring counsel” who takes responsibilty for the out of state counsel’s work. As the old saying goes, ” we dance around the circle and suppose, but the secret sits in the middle and knows.”

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