California Bar Journal
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heralding the expertise of non-lawyers willing to offer advice about bankruptcy, immigration, divorce, wills, real estate and wrongful termination. The self-help sections of bookstores feature a wide selection of do-it-yourself manuals covering all variety of legal problems.

David LongAs the marketplace changes, new legal delivery systems are fast emerging. Designed to improve consumer access to the legal system, these alternatives-to-traditional lawyering also include advice hotlines, legal document assistants, pro per help in the courts and even multidisciplinary practices which provide one-stop shopping for the customer who wants a variety of needs met under a single roof.

Some services help people who otherwise could not afford an attorney. Many legitimately handle pro forma tasks or offer accurate garden variety advice.

But as alternative legal delivery systems grow, some ethics experts worry they are at least flirting with the unauthorized practice of law if not actually crossing the line. “These systems are largely unregulated,” says David Long, a policy analyst for the State Bar. “Who will fill that vacuum? It’s quite a public policy conundrum.”

The unauthorized practice of law (UPL) is governed by Business and Professions Code 6125, enacted in 1939, which states, “No person shall practice law in California unless the person is an active member of the State Bar.” Section 6126 makes it a misdemeanor for a non-lawyer to advertise or hold himself out as a lawyer, and a felony for a disbarred, suspended or resigned lawyer to practice law.

As a practical matter, however, the bar can only regulate lawyers, and prosecution of unauthorized practice falls to law enforcement officials who often have far more pressing concerns.

In addition, interest in protecting the public by curbing UPL abuses has been tempered in recent years by the desire to allow increased consumer access to the legal system without lawyer supervision or involvement.

But the growing number of alternatives-to-lawyers, hot button proposals like multijurisdictional practices (MJPs) and multidisciplinary practices (MDPs) and a California Supreme Court ruling two years ago interpreting who may practice law in the state have resulted in renewed scrutiny of unauthorized practice.

The California legislature currently is considering seven measures that deal in some way with who can do what in the legal field. Two are clean-up bills dealing with existing statutes governing legal document assistants, and one would extend for five years the provisions of a law permitting out-of-state lawyers to represent parties in California arbitrations.

Other proposals would:

Create a statutory definition for the term “paralegal” and would establish standards for qualification.

Create a private cause of action for individuals defrauded by “trust mills.”

Require all attorneys to include a statement that they are licensed to practice law in California in all Yellow Pages advertising and would increase the penalty for fraudulent activity by immigration consultants from $10,000 to $100,000.

Declare legislative intent that appropriate standards for reciprocal admission to practice law in California be developed and implemented by the Supreme Court.

“The fact that the legislature is considering such a large number of bills dealing with who can offer legal services in California — and how — is a clear signal that this is an area of serious concern,” says Randall Difuntorum, supervising attorney of the State Bar’s ethics hotline. “The question of public protection is obviously on their radar screen.”

In the wake of the 1998 Birbrower decision, in which the California Supreme Court ruled that a New York law firm could not collect fees from a disgruntled California client because it had practiced law in the state without a license, attorneys whose practices cross state lines have become sensitized to the issue.

State Bar President Andrew Guilford believes California’s UPL rules need to be revisited,  which he concedes is not an easy task. Those rules are not designed to address issues raised by MJPs and MDPs, which would allow not only attorneys from other states to practice here, but would permit lawyers to partner and split fees with non-attorney professionals.

David Bell, former head of the bar’s competence office and now in ethics practice, says the bar is in a difficult position when it comes to policing new legal delivery systems.

“This phenomenon is somewhat overwhelming to regulatory agencies that aren’t up to the technological curve because they don’t have the resources to be cutting-edge,” he says.

“How do you build the expertise to regulate? And how do you try to protect the public but not appear like you’re just protecting the monopoly? It’s a very difficult situation for the State Bar, so it tends to sit on the fence as this phenomenon sweeps through California.”