Unauthorized Practice of Law Issues and the “Not Malpractice” Test

The Forbes blog has an interesting post collecting a number of recent developments in UPL.  It includes a Missouri lawyers’ class action against Legal Zoom, and cases from Kentucky and Ohio.  The post takes a generally anti-regulatory tone, with a particular stress on the vagueness of the regulatory structure, concluding as follows:

For document-preparers . . . determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.

But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out?

Actually, while I was not a source for the Forbes post, I have used a version of this definition for over five years, initially humorously, something like as follows:  If two lawyers can give you different answers to a question, and both are right, and neither is committing malpractice, that is the practice of law.  I do not think that is really that difficult a definition to apply, because if you know what you are doing, regardless of whether you are a lawyer, you know whether your answer is a matter of fact (not requiring professional skill), or one or judgment (indeed at the heart of the professional role.)  Maybe a more sophisticated version of the test is that if you need professional legal judgment to decide if something requires information or judgment, that does make it the practice of law.  What is nice about the test is that it discourages non-lawyers from providing information about which they are not certain, rather than from giving out any information at all.

I should add that one person I respect a lot, John Greacen, hates the test I have been proposing, because he says it tells court staff that they need to be a lawyer to decide whether they can answer a question from court users.  That’s not the intent, but it might be the atmospherics.  I think my answer is that this test is just the opposite and does just what it should do, tells court staff to answer questions to which they know the answer, and know that there is only one answer.  Then the only problem is ignorance.

John suggests the following:

I think an easy test today for court staff (and legal aid, library, domestic violence advocates, etc.) is the “if it is on the website it is information” test.  If the court or legal services has set forth information about the substantive law, the legal process, statutes of limitation, etc. on a website – where readers will have access to the information without having to go through a lawyer intermediary – then staff of courts and other helping institutions can provide the same information to their customers without fear of UPL

It may ultimately be that the UPL definition and the definition of what court staff can do need not be the same, although they are often discussed together, and assumed to be the same question.  But really the issue for court staff is neutrality and competence, while that for non-lawyers helping people is protection from incompetence, exploitation, and abuse.  The standards are related, but given the different supervisory and regulatory structures, and different relationship to the neutrality issue, I am coming more and more to feel that the inquiries are different.

One expert in the field told me that he thought a problem with the “not malpractice” definition was that there were some areas of law so complicated that even though there was only one “right” answer, it was reasonable to have in place a regulatory system that assured the public that only those with the skills to find and provide the answer (i.e lawyers) could do so.  There is some force to that position, and it highlights the fact that when UPL laws were put in place, that category was probably a large one.  This was partly because of the non-transparency and indeed counter-intuitive nature of much of the law back then (think about procedure before the Federal Rules), and partly because the public as a whole knew far less about everything, including the law, and had access to far fewer information finding tools.   This would suggest that these categories are inevitably in movement over time.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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4 Responses to Unauthorized Practice of Law Issues and the “Not Malpractice” Test

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  3. Tom Gordon says:

    Richard, I spoke with the Forbes reporter and mentioned your “not malpractice” test (with attribution, of course!), which explains how it got into the article. While I agree with Marc that the test can be both overbroad and underbroad in some areas, its spirit captures the idea of non-lawyers being allowed to provide information, as opposed to advice.
    I think you hit the nail on the head in pointing out that rules for assistance for court staff need not be the same as those for UPL applied to the general public. Assistance from court staff should, in states where this is not already the case, be exempted from UPL restrictions. The chilling effect that UPL restrictions would place on these people – who are often the only source of information a court user has about navigating the system – far outweighs any protection UPL laws would provide those users against unequal treatment or bad advice.

  4. Marc Lauritsen says:

    I was initially attracted to the “not malpractice” test, but it later struck me as both overbroad and underbroad. There are exquisitely complicated legal questions as to which expert lawyers might have sufficient unanimity of opinion such that different answers would fairly be regarded as malpractice, but few UPL line drawers would be happy having them on the ‘okay for nonlawyers’ side. E.g., how a complex trust arrangement will be taxed under US law. And there are probably ‘simple’ questions about which lawyers *can* reasonably disagree that even ardent turf protectors would hardly foreclose non-lawyers from opining about. To my mind, the key factors in defining behavior that might legitimately be regulated by UPL rules relate not just to the content of the ‘speech,’ or even its fact-specificity, but whether it is canned or real-time, and whether or not there is an understanding of a trusted counseling relationship. Self help software should never be UPL, even if it dispenses information that might be if coming directly from a human. But there are legitimate policy reasons for disallowing people without law practice licenses to dispense advice in circumstances that imply a trusted professional relationship.

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