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
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State High Courts – Inherent Powers
Bar Association
Bar Associations History of Regulation
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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
State Courts
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Inherent Powers
Create Practice of Law Definitions
Case Law
Some States claim exclusive domain over regulation of UPL
State Statutes
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Practice of Law Definitions
Bar Association
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Regulation through attorney codes of conduct and disciplinary
proceedings
Prevent members (attorneys) from aiding or abetting a nonlawyer from performing anything that may fall within the definition
of the practice of law
Determining What Constitutes the
Practice of Law
Practice of Law Definitions
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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”
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Exceptions
E.g. Do-it-yourself books or certain computer application
software
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
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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
Quality of Service
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Lawyers must attend 3 years of school
Bar examination
Professional monitoring and CLE
Ethical Constraints
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Duty of Loyalty, Confidentiality, Diligence,
Competency, etc.
The Lawyer Monopoly
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Lawyers motivated for personal reasons
Threat to established profession
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
In General
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Struggle to Find Appropriate Balance
Between Consumer Protection and Increased
Access to the Justice System
Possible Solutions
Complete Prohibition
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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
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 nonlawyers
Restricts Public’s access to Justice
System
Texas – leading proponent of this
approach
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
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2 definitions – one applicable to lawyers and
one applicable to non-lawyers
Four-Factor Test
Case-by-case basis
Four Factors
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Reliability of Service
Potential for Conflict of Interest
Service’s potential to mislead consumers\
Whether non-lawyer has addressed privacy and
confidentiality concerns
Problems
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Flood Courts with litigation
No uniform interpretation of what constitutes UPL
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
Benefits
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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
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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
Some schools already have existing
student clinical programs
Potential student tasks
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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
Must find the appropriate Balance between
protecting consumers and providing
increased access to the justice system