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September 2, 2003

A Cogent Dissent on the ABA’s Approach to Defining the Practice of Law

Filed under: lawyer news or ethics — David Giacalone @ 9:30 pm

As eLawyer Blog reminded us on Aug. 30, the Section on Law Practice Management was the only ABA section that opposed the recommendations of the Task Force on the Model Definition of the Practice of Law, which were adopted by the Association in early August (see our posting 08-15-03). Richard Granat has uploaded the LPM White Paper that explains its position to the eLawyer Blog site.
The White Paper presents an excellent discussion on why the movement to define the practice of law should “set the clock forward” toward pro-consumer and pro-competition goals (to enhance innovation, creativity, competition and efficiency), rather turn the clock backwards so as to protect and expand the legal profession’s monopoly (with its resulting inefficiencies and inability to serve the needs of all Americans).   The following paragraphs represent two important themes in the White Paper:
First, on the interplay between the definition and UPL:

By defining unauthorized practice of law in terms of false claims of licensure as a lawyer, the Model Definition of the Practice of Law might be freed to be cast as a positive statement about what services lawyers provide to consumers, what value lawyers bring to transactions, and what qualifications and training individuals permitted, i.e., licensed, by the state to practice law possess.  Such a definition would not limit performance of activities covered by the definition to licensed lawyers, or suggest that performance of such activities by persons not licensed by the court to practice law should be prosecuted as UPL.

Second, on the need to avoid expanding the Lawyers’ Professional Monopoly:
Unless a Model Definition of the practice of law is carefully crafted, state regulators might misuse it to draw a circle around the legal profession, by claiming that only lawyers are permitted to engage in certain activities, and sanctioning those who intrude into lawyers’ turf.  Such as expansion of lawyers’ professional monopoly is unwarranted by the case law or the legal needs of the public.. . . It enables an inefficient monopoly to thrive, which in turn discourages innovation and the development of more consumer-oriented ways of delivering legal services.   Not only is this kind of inefficiency and monopoly counter to the ABA’s goals of improving access to legal services to the poor, it is not likely to be supported long term in view of the national trend to increase competition and protect consumers.
The fact that some states have been moving in the direction of enforcing monopoly and pursuing a course of non-uniformity is no reason for the American Bar Association to support monopoly and non-uniformity.  The Law Practice Management Section has consistently supported delivery of legal services, including electronic services, across jurisdictional boundaries.  We believe that a carefully crafted definition of the practice of law can avoid fostering efforts to expand the professional monopoly, while supporting the efficient delivery of innovative service delivery systems.
The ABA did not actually adopt a model definition of the practice of law last month.   It passed the buck to the states, with some guidelines.  I hope that the LPM White Paper will eventually lead to the ABA taking up the subject again and, in the interim, will be a source of guidance for committees in the various states as they consider this issue.  (See our posting on July 21 for links to many relevant sources)

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