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.