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Posts Tagged ‘UPL’

44 years after apparently being the first state to consider implementing a mandatory malpractice insurance program, the nannies at the Washington State Bar Association (WSBA) are at it again. In an article in the current NW Lawyer, the WSBA governors “recently took up the question of whether requiring malpractice insurance for lawyers as a condition of licensing is an appropriate mechanism to help fulfill the regulatory duty to protect the public.”

Invoking the latest governance-consultant babble, the board held “a generative discussion” on the topic at its May meeting. A decision whether to create a mandatory malpractice insurance task force is set for its September 28-29 meeting.

Ironically, it matters little that the same article mentioned that 85% of Washington private practice lawyers already carry malpractice insurance. Apparently, it’s time to round-up the 15%.

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d4/The_Cr%C3%A8che.jpg/320px-The_Cr%C3%A8che.jpgBecause mandatory bar membership weaponizes governing boards to over-regulate and interfere with member personal choice and member financial interest, governors deem their latitudes unbounded. And when they claim guidance from the holy spirit of public protection, they feel empowered with the grace to do almost anything. Moreover, given the Washington Bar’s history, there’s hardly a doubt the WSBA will again ‘make friends’ among its restive members. It will march down the same liberty and property infringing road as its Pacific Northwest predecessors Oregon and Idaho, the only jurisdictions in the U.S. that currently force their lawyers to buy malpractice insurance.

A Scarlet Letter

https://upload.wikimedia.org/wikipedia/commons/thumb/2/2e/The_Scarlet_Letter_%281917%29_1.jpg/302px-The_Scarlet_Letter_%281917%29_1.jpg“Forcing an attorney to have malpractice insurance to protect those who would use his services, or forcing him to disclose that he doesn’t have such coverage, will predominantly adversely impact new solo and small-firm lawyers, punishing them for a being new and financially tight. Instead of branding new uninsured attorneys with a Scarlet Letter, why not simply educate the consumer on the benefits of having a lawyer who is insured. If they are litigious, they’ll seek out the insured attorneys, I promise.

“As a profession, we already have certain protections in place to help the victims of malfeasance. Let the state Client Security Fund reimburse qualified victims. Let the Statewide Grievance Committee disbar irresponsible or criminal lawyers. Then let the criminal courts take it from there.” – Attorney Susan Cartier Liebel writing at Build a Solo Practice, LLC, “Mandatory Malpractice Insurance Only Hurts Law-Abiding Lawyers”

In 2008, the Virginia State Bar also considered mandating malpractice insurance. According to opponents in addition to the high cost on solos and small firms, “The most troubling aspect of the proposal is the concern that it would allow insurance companies to dictate who gets to practice law. While insurance might be available to lawyers with a poor claims history or a lawyer in a high-risk area of practice, the cost of that insurance might be prohibitive.

“A significant hardship would be imposed on a lawyer who is denied coverage because of a pending disciplinary complaint when ultimately the lawyer is exonerated of wrongdoing. If in the meantime his or her license to practice law is suspended because of an inability to obtain insurance coverage as a result of the pending complaint, the lawyer may suffer irreparable harm.” See “Mandatory Malpractice Insurance—It’s Time To Call The Question”

More recently, a well-heeled Nevada personal injury lawyer opined in an “Open Letter” that in addition to mandatory disclosure, Nevada’s Bar and Supreme Court need to create “a not-for-profit professional liability insurance provider for Nevada attorneys to provide competitive low-cost malpractice insurance for its members.” And if his proposal happens to exclude “some lawyers from practicing in Nevada because they may not be able to obtain malpractice insurance” — so be it.

“. . . if a lawyer’s record is so bad that they are unable to obtain malpractice insurance because the risk is too high for the insurer, is it not better that they are precluded from practicing law in Nevada than putting consumers at risk for their malpractice?” The Nevada Bar’s governing board is currently task forcing the matter. And if Oregon’s Professional Liability Fund is any barometer, don’t look for “competitive low-cost” coverage for Nevada lawyers. This year, Oregon lawyers were each assessed $3,500.00 for less bang-for-the-buck $300,000 per claim and $300,000 aggregate coverage.

Terms of Estrangement

As for Washington, it’s not like its Board of Governors hasn’t already sufficiently estranged itself from its members. In 2015, it inflicted unwelcome competitive pressures on underemployed lawyers by spearheading non-lawyer delivery of legal services by Limited License Legal Technicians. The technicians compete for lawyers’ income-generating work — without the toil and treasure invested by lawyers to obtain a Juris Doctor degree. “Who says you need a law degree to practice law?” So much for lip service paid to the unauthorized practice of law — not when you can pucker those lips around a convenient ‘access-to-justice’ exemption.

And more lately, the Board increased licensing fees from $325 in 2016 to $458. And to further pickle the wound, the Board punctuated the increase by obtaining court sanction to ignore a licensing fee referendum petition signed by 2,180 members that would have rejected the astounding 141% increase.

Evidently, member criticism doesn’t faze WSBA leadership. Despite repeated lawsuits and attempts to rein them in legislatively, the Washington Bar’s tin-eared imperiousness is seemingly boundless. Indeed, their arrogance may even exceed that of the State Bar of Arizona.

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Credits: snugglebunny, by parian, at Flickr Creative Commons attribution; The Crèche, by Albert Anker, Wikimedia Commons, public domain; The Scarlet Letter (1917), Wikimedia Commons, public domain; Sooooooooooooooooooooopa Tramp!!!!!!!!!!!!!!!!, by AndYaDon’tStop, at Flickr Creative Commons attribution.

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I recently attended a seminar where a lawyer-lobbyist opined that non-lawyers should not be lobbyists. Influence peddling, it seems, should be the sole province of lawyers. Not that much explanation was given. Perhaps none was needed. After all, most in attendance were lawyers. Somewhere in the lawyer DNA is genetically grafted an exaggerated belief that “Anything you can do I can do better; I can do anything better than you.” 

Not that it’s true — especially in lobbying where cunning, connections, comprehension and experience count as much if not more than a legal education. Nevertheless, those advocating the supposed advantages of lawyer-lobbyists over nonlawyer-lobbyists also sniff that “Nonlawyer lobbyists lack a system of obligatory ethics norms akin to the Rules of Professional Conduct.” Apparently it matters little that such self-serving smugness is undercut by the likes of former lawyer-lobbyist Jack Abramoff.

File:Theodoor Rombouts - Christ Driving the Money-changers from the Temple.jpg

Bottom line, for lawyers fiercely wedded to the medieval guild’s monopoly-has-its-privileges — free market competition sucks. Or to Ben Franklin’s “nothing can be said to be certain, except death and taxes” — add with certitude the protectionist instincts of lawyers.

The ABA takes the lead.

Under the sheltering cover of “ponderous, backward looking, and self-preserving” bar associations, licensure was the sine qua non to supposedly protect “the uninformed public against incompetence or dishonesty.” Or at least that’s what Professor Walter Gelhorn said in “The Abuse of Occupational Licensing”  where more significantly, he also pointed out how such pretextual public protection always has “the consequence that members of the licensed group become protected against competition from newcomers.”

Ah, the joys of monopoly or as Professor Gerard Clark explains in “Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession,”

“Since its founding in 1878, the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power.”

Just-us.

Lawyer regulation to protect the public sounds good. But by regulating who can practice law, lawyers also maintain a monopoly on who provides legal services. The legal establishment accomplishes this by regulating the unauthorized practice of law (UPL) either by statute or court rule. But the rub is that bar association regulators have an inherent conflict of interest. On the one hand, they’re supposed to protect and serve the public by regulating lawyers. But at the same time, they function like trade associations promoting the legal profession’s common interests.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/m/meowzeroni/04/l/1397514359cws5o.jpgThese two purposes conflict because lawyers and the public often have different interests. When these interests conflict—such as when out-of-state lawyers or lower-cost legal services wish to compete with lawyers — lawyers use their regulatory powers to stop that competition.

Last year, for example, in the aftermath of the U.S. Supreme Court’s ruling against a protectionist North Carolina Dental Board, the State Bar of North Carolina settled its suit against LegalZoom. LegalZoom is now free to offer online document services and prepaid legal services plans to North Carolinians.

Here in Arizona, examples of lawyer interests trumping public interests include the Arizona State Bar’s efforts to stop realtors in the 1960s, legal document preparers in the 1990s, and out-of-state lawyers in the 2000s from offering services in Arizona.

When it comes to access to justice, those at the temple precincts mean access to just-us.

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Credits: The governors of the guild of St. Luke, Haarlem, 1675 by Jan de Bray, Wikimedia Commons, public domain; Theodoor Rombouts, Christ Driving the Money-changers from the Temple, Wikimedia Commons, public domain; other photos via Morguefile.com, no attribution required.

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photoMandatory state bars long ago lost their ability to surprise. Just when you think tin-eared insularity reaches its limits — wait two beats — there’s always more.

Last month, for example, in his President’s Message: Task Force to Tackle Unauthorized Practice of Law, the Nevada State Bar President after first announcing a new bar task force to study the U.S. Supreme Court’s 6-3 decision against state-sponsored protectionism in North Carolina Board of Dental Examiners v. Federal Trade Commission, then surprisingly segued into a clarion call for more ways “to protect the public interest” from the unauthorized practice of law. Methinks he reached the wrong conclusion.

As a matter of fact, the North Carolina Dental Board case runs counter to self-regulated active market participants fostering anti-competitive regulations and actions for their own — not the public’s benefit. Writing for the majority, Justice Anthony Kennedy explained “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability. When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision.”

No wonder those who aren’t state bar presidents are reading the case as “a blow for consumers and economic freedom.” Others even opine it may “drill down into bar associations’ [anti-trust] immunity.”

But no worries apparently in Nevada. In fact, some mandatory bars are acting as though the ruling has no impact since mandatory bar governing boards are either under the “active supervision” of state supreme courts or because lawyer regulation comes under the state supreme court or because bars don’t define what constitutes the practice of law (UPL).

In Arizona, where what constitutes the practice of law has been progressively diluted first, by court-certified legal document preparers exempted from UPL by supreme court rule and soon by the rumored introduction of Washington State-styled Limited License Legal Technicians, I predict the besainted Arizona Bar will declare itself anti-competitively pure.

But at least one mandatory state bar association has decided to pay half attention to what happened to North Carolina’s dentists. The State Bar of Washington announced last week it was suspending some ethics opinions because of antitrust concerns.

Bright line test.

Outside the insular world of bar associations, public interest and consumer groups are also weighing in. In a letter to California’s Attorney General earlier this year, consumer interest representatives asked for an inquiry of all state regulatory bodies in California.

Calling the North Carolina decision a “bright-line minimum test,” the public interest groups wrote, “Those controlling the decisions that might restrain trade may not be “active market participants” in the trade regulated. For every agency so afflicted, the legal status of those making such decisions is clear – they are, in the words of the Court, “nonsovereign actors” who lack any state sovereign immunity whatever. Their decisions are no different than a decision undertaken by a cartel or private combination of competitors. You are invited to review the decision en toto and draw your own conclusions, or to refer it and this letter to the leading antitrust prosecutors and experts in your jurisdiction.”

Concerning lawyers and state bar associations, in a footnote the correspondents declared, “By way of illustration: State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty. Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence.

“The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”

The woes of the amici.

Before the decision, some mandatory state bars had signed onto the North Carolina Bar’s amicus brief asking the Supreme Court to overturn the Fourth Circuit. They’d claimed that upholding the Fourth Circuit would interfere with the state sovereign’s ability to regulate state-licensed professionals and state public protection laws. See “SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless.”

They cited 4 likely gloom and doom impairments:

“(1) The limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.
(2) State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.
(3) Lawyers will be reluctant to serve as bar councilors for fear of being sued—and of being held individually liable—in treble damage antitrust actions.
(4) Councilors who do agree to serve may be deterred from fulfilling their state authorized enforcement duties against defendants who threaten antitrust claims.”

Ironically, given the subsequent underwhelmed attitudes of some state bars in the case’s aftermath, the woes of the amici may have been overwrought pretense or much ado about nada. Perhaps the Justices were right to pay no mind.

Such little reaction despite all those supposed impairments. It appears the sky was never going to fall.

Or I’m wrong after all. No clue may be better than half-a-clue.

 

 

 

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Photo Credits: “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Other photos via Morguefile.com, no attribution required.

 

 

 

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Christmas nears. Visions of sugar plums and tamales dance in some heads, including mine. So imagine my dismay on news that U.S. Customs and Border Protection (CBP) had interdicted 450 carefully wrapped tamales at the Los Angeles International Airport on November 2nd. ¡Ay, caramba!

Deemed “illegal” contraband, the corn husked pork and corn meal comestibles were seized from a Mexican traveler’s luggage. Once destined for holiday feasting, the tamales were instead impounded, the traveler fined, and the tamale treats consigned for ceremonial destruction under CBP supervision. Sometimes you can’t have your tamale and eat it, too.

tamales meal #6 | by Tricia Wang 王圣捷

Tamales and mandatory bars.

This tamale-for-cake variation of the age-old idiom brings me to the other reason for this post. Whether tamales, cakes or even mandatory state bar associations, you can’t always have your cake and eat it, too. In other words, you can’t or shouldn’t try to have two incompatible things like mandatory bar associations who claim to be both public protection regulators and trade associations for lawyer interests. By doing so, they fail to heed the ancient proverb, “No man can serve two masters.”

By mere happenstance, just the other day I posted here about past lawyer dissension in Washington State. In 2012 by referendum, Bar members overcame opposition from their Bar to roll back dues by 25%.

It appears that Washington lawyer brethren and sistern are again restless with their state bar. It’s the long-running kerfuffle between Washington Bar leadership and its Practice of Law Board (POLB). The dispute is over access-to-justice and regulating the unauthorized practice of law (UPL), which are supposed to be the core missions of the POLB.

The genesis of this current brouhaha may be the September 1, 2012 state supreme court rule change that authorized non-attorneys designated as Limited License Legal Technicians who met defined educational requirements to advise clients on family law matters. The Bar’s Board of Governors consistently opposed the rule change as did many members. Well, the squabbling finally boiled over last month and triggered the mass resignations of nearly the entire POLB membership.

To air their grievances, the former POLB members released an 11-page letter written to the Washington Supreme Court where they decried the bar association’s “long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services.” They also accused Washington Bar Executive Director Paula Littlewood of pursuing “a campaign to eliminate the Practice of Law Board.”

Recognizing the inherent conflict of interest between a trade association beholden to member interests and a mandatory bar that pays lip service to public protection, the former POLB members also wrote “Independence from the Washington State Bar Association was necessary to ensure that the Board’s mission could be advanced free from undue influence by the state’s largest trade association of lawyers.”  See “Board members quit, blast Washington State Bar in fight over UPL, legal technicians.”

As for myself as we approach yuletide, it’s time to keep calm and eat tamales.

____ ____ ____ ____ ____ ____ ____ ____ ___________________________________________________________________PPhoto Credits: Contraband tamales at LAX, US Custom and Border Protection photo;”tamales meal #6,” by HI TRICIA! 王 圣 捷 at Flickr via Attribution-NonCommercial-ShareAlike 2.0 Generic license; Tamales mexicanos 25-dec-2004 Pixeltoo 22:32, 23 Mar 2005 (UTC) at Wikipedia, public domain; tamale meal at morguefile.com.

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Even in Maricopa County, Arizona where most everyone has transplanted from someplace else, no one likes hearing about how things were done elsewhere. It’s as welcome as grey-whiskered prattle about “how things were when I was a kid.” Put a sock in it.

All the same, ignore the sock hanging out my mouth while I favorably compare what my former home state of Nevada just did concerning the unauthorized practice of law (UPL).

UPL as most of you know is a tiresome pet peeve of mine. But for all my frustration, as far as Arizona’s concerned when it comes to dealing seriously with UPL, it’s rubbing fingers and playing the world’s tiniest violin.

But back in the Silver State there’s AB74, a new Nevada law effective March 1, 2014 that imposes new controls on legal document preparation services — or what lawyers think of as the unauthorized practice of law. Fortunately, instead of creating another self-perpetuating legal establishment bureaucracy like in Arizona, AB74 requires document preparation services to register with the Secretary of State; establishes qualifications for registration; requires the filing of a bond; regulates the business practices of document preparation services; authorizes disciplinary action and other remedies in specified circumstances; and provides civil and (unlike Arizona) criminal penalties.

File:Otis fence.jpgNevada’s approach is admirably distinguishable from what the ‘self-enlightened’ legal elites did in Arizona. Here the legal eagles didn’t soar to curtail the unauthorized practice of law. Instead the privileged classes ‘fixed’ it by saying it wasn’t UPL. Arizona exempted out a slew of non-lawyers from UPL by judicial fiat.

As a consequence, Also see “Immcrimination: Document preparation in Arizona in the wake of USA v. Arizona.”

No “conscious uncoupling” from the mandatory bar.

Which gets me to say something nice for a change about a state bar president, Nevada’s Alan J. Lefebvre. He’s finishing out his term and in his last several presidential epistles in the bar’s mouthpiece magazine, Nevada Lawyer, Lefebvre’s demonstrated refreshing candor — at least by complaisant state bar standards. He’s decried the current state of the legal profession, which has “done nothing to protect and rescue” newly graduated debt-indentured lawyer graduates. See “President’s Message: “Maybe Reparations are Owed?”

photoAnd unlike the self-congratulatory B.S. typically spewed by bar management milquetoast sock puppets, Lefebvre has also inveighed against the bureaucratic status quo.

Otherwise, as mandatory bar presidents go, the ones with any real cojones have been those never-say-quit anti-mandatory bar presidents in Wisconsin — three of the last four elected. Despite long odds, they’ve been fighting for a voluntary bar for many years. And trying to divorce themselves from compulsory bar membership, they’ve waged their own version of “conscious uncoupling” well before Gwyneth Paltrow was therapeutically psycho-babbling about it.

Sometime ago, one former Wisconsin bar president who’s advocated for a voluntary bar for decades even made headway based on compelled Free Speech grounds. But it was short-lived. His victory was reversed on appeal by the 7th Circuit.

To be clear, however, that guy in Nevada ain’t advocating removal of the mandatory bar yoke — that’s a furrow too far for most bar insiders. But at least he’s shooting straight on UPL and about what Nevada’s new legislation means. In his latest “Message from the President,” Lefebvre rails against “the commoditization of the practice” and how “the unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing.” See “President’s Message: Unauthorized Practice of Law: Redux …

Lefebvre’s so effusive he even signals out Lucy Flores, the bill’s author who he says, “should get a ‘lawyer of the year’ award for her foresight.”

Foresight — what a concept. But so’s candor and especially, courage.

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Photo Credits: “Whitby Sock One,” by LollyKnit at Flickr via Creative Commons-requiring attribution; 200px-Blnguyen_violin.jpg at Wikimedia Commons; Otis_fence.jpg at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”in other words, you have a big mouth,” by Vera at Flickr via Creative Commons-requiring attribution;”Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution.

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Topless lawyer wannabes? With that as a titillating lead, I’m going to tell you about a devastating critique of what passes for prosecuting the unauthorized practice of law (UPL) in Arizona.

It’s a real-life story posted last November by would-be whistle-blowing criminal defense lawyer Karyl A. Krug who until she was injudiciously shown the door had been a Capital Staff Attorney in the Arizona Death Penalty Judicial Assistance Program.

Krug is no crank. A 20-year Texas board-certified criminal law and criminal appellate law specialist turned Arizona lawyer, her experience, credentials and distinctions enviably run three pages.

LAW AND JUSTICE 63She’s a former Chair of the Criminal Law Exam Commission for the Texas Board of Legal Specialization. She Chaired the ABA Habeas Reform Subcommittee; and Co-Chaired the ABA Criminal Justice Section, Appellate and Habeas Committee. In 1996, Krug garnered the second DNA exoneration in Texas. And besides 18 reported cases, she also had the first published Vienna Convention case in Texas on behalf of a foreign national. Oh, and she also served on the ABA’s Postconviction Task Force to advise Standards Committee and done a lot more other stuff than most lawyers ever will.

Slings and arrows.

File:Sebastia.jpgBut hers is a cautionary tale. If someone so impeccably credentialed can suffer such ‘slings and arrows,’ then what of lesser mortals? More dismayingly, it also hollows out the resolve and reliability of UPL enforcement actions in the Grand Canyon state.

But before getting to her provocatively-titled story, “Arizona Is Calling All Topless Lawyer Wannabes,” which necessarily must be filed in the prodigious ‘no good deed goes unpunished’ folder, here’s some background.

A mess of things.

Politics Law & Finance 43Over the years, Arizona along with most other jurisdictions has pretty much made a mess of defining what is and what isn’t the practice of law. Indeed, more than a half-century ago, the state supreme court in State Bar of Arizona v. Arizona Land Title & Trust Co. 366 P.2d 1, 90 Ariz. 76 said “In the light of the historical development of the lawyer’s functions, it is impossible to lay down an exhaustive definition of “the practice of law” by attempting to enumerate every conceivable act performed by lawyers in the normal course of their work.”

People 1857Still, give the high court credit for trying. There is after all, an Arizona definition and while not statutory, it’s nevertheless the governing rule, Arizona Supreme Court Rule 31, “Regulation of the Practice of Law.”  And notwithstanding the rule’s 21 exceptions, it’s meaning is clear to everybody — except the lawyers and non-lawyers who’re supposed to follow it.

In Arizona, for example, non-lawyers known as certified legal document preparers can prepare pleadings/wills/other legal documents; attend administrative proceedings; handle pre-trial activities; negotiate legal matters; appear in court; attend real estate closings; participate in state administrative proceedings; and participate in alternative dispute resolution proceedings.

child silly faceLegal document preparers can also provide general legal information — but they can’t give legal advice. And when you’re able to make that distinction without a difference — let me know.

I know it when I see it.

flashlight gh 2Not that things are clearer elsewhere. In Minnesota, for instance, in a bit of unintended understatement, that state’s supreme court said, “The line between what is and what is not the practice of law cannot be drawn with precision.”

And reminiscent of what Justice Potter Stewart memorably said about knowing something when he sees it, the court added, “Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyers’ field.” See Cardinal v. Merrill Lynch Realty/Burnet, 433 NW2d 864 (Minn. 1988).

The courts, though, wouldn’t necessarily be better off applying Lord Justice Jeremy Stuart-Smith’s “well known elephant test” from Cadogan Estates Ltd v Morris. Referring to an elephant, the Lord Justice said, “It is difficult to describe, but you know it when you see it.”

Meanwhile in Arkansas, that state’s highest court threw up its collective hands and said it was “impossible to frame any comprehensive definition of what constitutes the practice of law” and added, “perhaps it does not admit of exact definition.” See Arkansas Bar Association v. Block, 323 S.W.2d 912 (1959).

UPL — Unauthorized Practice of Law.

https://i2.wp.com/cdn.morguefile.com/imageData/public/files/q/quicksandala/11/l/1384652253jvwl6.jpgAmorphous definitions or not, states do try — albeit with varying degrees of commitment but plenty of lip service to crack down on what’s supposed to be unauthorized practice. But getting arms around the spiny porcupine isn’t easy. 

Almost two years ago to modest fanfare, the Arizona State Bar announced it was partnering with U.S. Citizenship and Immigration Services and other local and federal agencies to crack down on the unauthorized practice of immigration law. However, it was all part of a nationwide public relations effort initiated not by the Arizona bar but by U.S. Citizenship and Immigration Services (USCIS).

Enforcement? What enforcement?

But without a universal probe library (UPL) or an upper prediction limit (also UPL), it’s difficult to figure how serious or successful these crack downs are to more forcefully restrain that better-known UPL, the unauthorized practice of law.

Arizona does have a statute dealing with the unauthorized practice of immigration and nationality law, although it’s hard to say how many prosecutions let alone class 6 felony convictions the attorney general has made to prevent or stop violations.

But other than this single UPL immigration statute, as Krug points out, it’s not otherwise a crime in Arizona to engage in unauthorized practice of law. The only remedies hereabouts are civil injunction, civil contempt, and a civil fine. And as for what money is spent policing UPL, good luck on that. It’s not readily known since the number’s buried in the $5MM or so the disciplinary wheels spin regulating Arizona lawyers.

All the same, according to the state bar’s website and its last update three years ago this month, only 27 UPL formal complaints have been filed; 14 UPL cease and desist consent agreements signed; and 4 contempt actions filed. By comparison, that’s a far cry from the 695 full screen lawyer disciplinary investigations performed just in 2012.

But not to pick just on Arizona, the enforcement is scatter-shot most everywhere else. It’s underfunded, under-reported and underwhelmed. Not surprisingly, some jurisdictions even have as much trouble defining UPL as they do the practice of law. If you can’t define it, is there any wonder enforcement’s so erratic?

Moreover, the last report of any consequence was almost two years ago when the American Bar Association (ABA) Standing Committee on Client Protection rolled out its 2012 Survey of Unlicensed Practice of Law Committees.

Cartoon Characters 310Here are a couple of highlights: “Twenty-three jurisdictions actively enforce UPL regulations, although some jurisdictions indicate that insufficient funding or resources make enforcement challenging. Nine jurisdictions stated that enforcement is inactive or non-existent.

“Most jurisdictions either do not have a specific annual expenditure for UPL enforcement or were unaware of the exact amount.”

Topless Lawyer Wannabes.

So getting back to Suzette Hall, the Colorado woman busted for giving topless haircuts and how that ties into practicing law in Arizona without a license. Unlike lawyers who proudly display law licenses on office walls, Suzette’s male customers apparently never bothered to ask about her cosmetology credentials. They just paid the $45 to get the topless haircut. So Karyl Krug’s point in her blog post is that “Colorado is tougher on unlicensed hairdressers than Arizona is on unlicensed attorneys.

“Colorado must be a very conscientious state. In Colorado, Suzette Hall was arrested for suspicion of practicing cosmetology without a license. I am assuming it is because she was practicing her craft sans a trendy burnout tee from the Sundance Catalog; or a shirt of any kind. Whether toplessness constitutes reasonable suspicion to believe that one does not have a license to practice one’s chosen profession in Colorado, much less probable cause for an arrest, I will leave to the authorities in Colorado.

“By contrast, you cannot get arrested in Arizona for practicing law without a license, clothed or otherwise. Since we have had a multitude of topless demonstrations in Tempe and Phoenix in the recent past, I think it might be safe to say that Ms. Hall could have declared herself a topless lawyer in Arizona without fear of arrest.

“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.

“This is in stark contrast to Texas, known as that other crazy, red, Wild West state. I have been licensed to practice law in Texas for 20 years. It is a third degree felony to practice law without a license and get paid to do so, punishable by two to ten years in prison. In Arizona, it is a violation of Arizona State Bar Rules, but it is not a crime.”[1]

The rest of Krug’s legal reality story describes what happened to her after she outed a non-lawyer colleague working as a ‘Capital Staff Attorney’ in the Arizona Death Penalty Judicial Assistance Program. Both were dispensing legal advice to “trial judges statewide on the law in death penalty cases” and writing “proposed orders and legal memoranda.” Only thing is Krug’s colleague wasn’t a lawyer although she held herself out to be one and was actually called one!

And after fulfilling her ethical precepts by telling near everyone that needed to know from the state bar to the court to the Attorney General to the FBI and including possibly God Almighty that this was not only UPL but what she strongly believed to be grant fraud, Krug figuratively got her head handed to her for her troubles.
Meanwhile those both derelict and accountable for what took place got what’s tantamount to the sound of crickets chirping — nothing. Read the rest of her story here.

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[1] Excerpted with express permission of author Karyl Krug at LiberalAmerica.org

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CB023204Perched in air so rarefied the real economy doesn’t incongruously offend the pure oxygenated respiration provided by his laissez-faire advocating employer, the Goldwater Institute’s Clint Bolick looks down his chin at the lawyer polloi and gushes how he “would love to see the entire UPL regime disappear.”

 

For those who think “UPL” refers to a lawyer’s “Upper Profit Limit,” — no, here we’re talking about the “Unauthorized Practice of Law,” which is supposed to be a ‘No-No’ in Arizona — that is, unless you’ve been given a special exemption.

Bolick believes in doing away with any pesky remaining impositions on the unauthorized practice of law so that non-lawyers can dispense even more legal services in Arizona. Libertarian free-marketer and all that, he believes it would be a good thing. And unlike Oliver Twist, he’s neither shy or unabashed about wanting more of it.

Indeed, this was the topic of his Op-ed this month in Arizona Attorney Magazine, the state bar’s house publication.

The easiest pain to bear.

And why shouldn’t Bolick want more legal services deregulation? When you’ve insulated yourself as he has from the concerns of solos and small firms who make up the majority of Arizona’s lawyers, it’s easy to overlook their entrepreneurial worries over such trifles as making expenses; facing competition; overcoming business downturns and generating revenues. Paraphrasing François de La Rochefoucauld’s famous maxim about having “strength enough to endure the misfortunes of others,”[i] in Bolick’s world, the easiest pain to bear is another lawyer’s.

Colorful images of man giving okay sign uid

So now that the Goldwater Institute has cornered the well-heeled and well-funded niche that purports to defend the economic freedoms of those they deem oppressed from those they deem accursed, Bolick pines for more deregulation of legal services while at the same time declaring how happy he is “to live in a state that recognizes that more choices lead to greater access to legal services.”

But has greater access translated into the delivery of “enormously valuable legal services to ordinary people at low cost” as Bolick maintains? Well, it might also depend on what you mean by “low cost” since some of the non-lawyers charge upwards of $100 per hour for their services. But I guess if you’re comparing yourself to one of those $1,000 per hour guys, then charging 1/10th of that must be a bargain — even if those high-priced swells did go to law school.

File:Twain1909.jpgSolo lawyers, however, are a different subject. They’re not knocking down those kinds of bucks — not even close. In fact, I know some solos, for instance, who draft simple wills for about the same price as the document preparers who never saw the inside of a law school.

So without empirical data in support, Bolick’s argument that “the market is able to provide low-cost, high-quality paraprofessional services” serves only to recall what Mark Twain once wrote, “I am not one of those who in expressing opinions confine themselves to facts.”[ii]

Mama mia!

Deregulate the practice of law and lower consumer costs by increasing competition from non-lawyers? Who says? Have consumer costs really been lowered? And where are the empirical assurances that minimum competency requirements have been met and are continuing to be met?

Deregulation is not a new idea. But if taken to its logical consummation, it would undercut the legal academy and legal cartel’s raison d’être. Indeed, last year, two like-minded think tankers while opining about how more jobs and lower prices would be the end result from deregulating the provision of legal services,[iii] belittled the need for law schools and bar exams.[iv]Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality,”[v] they further proclaimed.

photoBut unfortunately for their argument, we already know how well deregulation has worked before — for air transportation and electric utility customers, for example. And of course we’re still bent over the chair suffering the burdens visited upon us by the “Mama Mia” of all screw-ups, the deregulated financial markets that triggered the worst global financial crisis since the Great Depression.

No, the truth is that the facts on the ground are much different. Never mind that Bolick scoffs at the “hundreds of bar complaints” against legal document preparers — because they came from his peers — as though a lawyer’s ethical duty of candor and truthfulness is trumped by informing against a competitor.[vi]

Or is a lawyer’s action in compliance with Arizona Ethical Rule 8.3’s duty to report professional misconduct involving other lawyers or judges[vii] also to be accorded similar discredit?

The reality is that lawyers who have tried to repair the incompetent delivery of services provided by legal document preparers don’t have to conjure up a parade of horribles to make the case that consumers aren’t being protected “by choice, competition, transparency, and the enforcement of fiduciary relationships.”

                              

Crisis in the profession.

Moreover, the legal environment is in the throes of radical transformation, thanks in large part to the economic recession; globalized outsourcing of legal services; and the increased digital delivery of online legal services via such providers as LegalZoom, RocketLawyer, JustAnswer, LawBidding, Law Pivot and MyLawyer.com. Not to mention the job-eliminating efficiencies of predictive coding used to perform technology-assisted document review in complex litigation.[viii]

business woman frustrated

The other reality is that there is a glut of lawyers and that there are fewer jobs for them. And so there is a fundamental restructuring taking place in the delivery of legal services. Adapt or perish. The landscape is being transformed. And with the bankruptcy, for example, of the storied firm of Dewey & LeBoeuf, the end of the old law firm business model is also nigh.

Irrespective of the crisis-deniers in the legal academy, the story is out. This past March, for instance, even the ABA Journal featured a Paradigm Shift Series, to show “how traditional U.S. legal education paradigms, driven by federal loan underwriting, are not responding to the market forces as law schools continue to add students and raise tuition rates in a mature legal services industry.[ix]

Indeed, facing external pressures over allegations of having supposedly condoned misleading law school post-graduation employment numbers, this past summer, the American Bar Association finally clarified the grim nationwide post-graduation employment picture for law school graduates. It is worse than previously thought.

Jobless and indebted.

Only 55% of the class of 2011 had full-time, long-term jobs that required a law degree nine months after graduation. This past July, the New York Times editorialized, “These numbers are far worse than jobs data going back a generation and should be a deep embarrassment to law schools, which have been churning out more graduates than the economy can employ, indulging themselves in copious revenues that higher tuitions and bigger classes bring in. A growing list of deans acknowledge that legal education is facing an existential crisis . . . .” [x]

Back breaking tuition increases, which over the past 20 years have outstripped the inflation rate[xi], have escalated so much at both private and public law schools that according to a recent Pew Research Study reported by the Los Angeles Times, “the share of American households affected by student debt has more than doubled in the last two decades, soaring from 9% in 1989 to a record of nearly one in five in 2010.” [xii]

And according to the previously mentioned New York Times Op-ed, “As tuition has soared, so has student debt. Nearly 9 out of 10 graduates have sizable debt, with $98,500 the average for the class of 2010, about $1,200 a month in loan payments over 10 years. Most schools and many students have banked on students’ being able to pay back enormous loans with ample salaries, but that flawed model is irretrievably broken.” [xiii]

A ‘Golden Age’ for consumers?

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/b/b8/The_Golden_Age.jpg/320px-The_Golden_Age.jpg

So here’s the rub, Bolick’s unsupported paean to deregulation Utopia notwithstanding, with so many underemployed and unemployed lawyers, the excess capacity ought to be driving down prices and increasing competition — without opening the non-lawyer floodgates further. We should be on the brink of a golden age for consumers even now.

The laws of supply and demand should be operative in the face of a glut of supply; of ascendant multi-jurisdictional practice; and of relentless advances in technology. But that’s not the case — not when jobless young lawyers are saddled with six-figure nondischargeable tuition debt and lack the timely ability to pay it back.

File:Perrault1.jpgSo at the intersection of Bolick’s deregulation fantasy, the more reasonable debate ought to be not about how to allow even more “paraprofessionals” to engage in what for all intents and purposes, (mandatory disclaimers notwithstanding), looks like, swims like, and quacks like a law-practicing duck.

No, the better debate should be — what to do about all those trained, credentialed and available young lawyers. And parenthetically, we should be asking how to lead the transformation occurring in the practice of law. Will it require, as law professor Paul Campos suggests, fewer law schools and the “return to the faculty student ratios and faculty compensation structures of three decades ago”?

photoOr will it mean an even more radical revolution in the way lawyers are educated; in how they finance and pay for a legal education; and finally by a legal establishment that at long last decides to truly adopt and not dodge a model definition of the practice of law?

And instead of more deregulatory pipe dreams, how about a model definition of the practice of law based on a narrow definition that provides greater assurances of competence in the delivery of legal services to consumers.[xiv]


[i] François, duc de La Rochefoucauld. The Moral Maxims and Reflections of the Duke de la Rochefoucauld, 2nd ed. London: Methuen & Co. Ltd., 1912.

[ii] Mark Twain, What Is Man?, The Complete Essays of Mark Twain. Ed. Charles Neider. New York: Da Capo Press, 1991. But even more on point may be the other famous quote long attributed to Twain, “Never let the facts get in the way of a good story.”

[iii] Clifford Winston and Robert W. Crandall, Time to Deregulate the Practice of Law, Wall Street Journal, August 21, 2011, http://online.wsj.com/article/SB10001424053111903918104576502132536596092.html

[iv] Ibid.

[v] Ibid.

[vi] Ironically, notwithstanding Bolick’s implication that lawyers ought to be disqualified from complaining about nonlawyer document preparers, his hymn to a deregulated Eden finds possible support thanks to an apparent absence of consumer complaints in Arizona. The American Bar Association, Standing Committee on Client Protection, 2012 SURVEY OF UNLICENSED PRACTICE OF LAW COMMITTEES, Chart III, was blank for Arizona’s response to the survey query: “Has Your jurisdiction received complaints re: nonlawyer providers? (Describe).” But before popping the champagne cork, also see List of Revoked and Suspended Certifications.

[vii] Rules of Professional Conduct, Arizona State Bar Website, 8. Maintaining the Integrity of the Profession, ER 8.3.   Reporting Professional Misconduct, (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law.  (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. http://www.azbar.org/Ethics/RulesofProfessionalConduct/ViewRule?id=60 (last visited October 1, 2012).

[x] Lincoln Caplan, Editorial, An Existential Crisis for Law Schools, New York Times, July 14, 2012, http://www.nytimes.com/2012/07/15/opinion/sunday/an-existential-crisis-for-law-schools.html?_r=0

[xiii] Caplan. op. cit.

[xiv] See Soha F. Turfler, A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach To Defining the Practice of Law, 61 Wash. & Lee L. Rev. 1903 (2004),

http://scholarlycommons.law.wlu.edu/wlulr/vol61/iss4/13

See generally Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules – Forbes and Richard Granat’s comments at Draft Model Definition of the Practice of Law.

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Photo Credits: “Mark Twain,” in public domain via Wikipedia; “Possible plumber,” by Tony Alter, Tobyotter, at Flickr via Creative Commons-licensed content requiring attribution; “Unemployed,” by Misha Dontsov at Flickr via Creative Commons-license requiring attribution;Illustration de ma mère l’Oye, par Gustave Doré, public domain via Wikipedia; The Golden Age by Lucas Cranach the Elder (1472–1553) at Wikimedia Commons, public domain;Kongen av eventyrland / The King of Fairy Tale Land, by National Library of Norway at Flickr via Creative Commons-licensed content requiring attribution; Zombies 023, by Jhayne Foxtongue at Flickr via Creative Commons-license requiring attribution.

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