California Bar Journal
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California Bar Journal

The State Bar of California


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Front Page - August 2001
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News / News Briefs
MCLE deadline for Group 3 (last names N-Z) is Feb. 1
Judicial Council launches online self-help center
California lawyers honored for work for homeless, minorities and children
Coy about her future, Reno focuses on women's issues
No bias found against solos
Governor signs two-year fee bill
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Ethics update...
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Trials Digest
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From the President - Bar targets unauthorized practice
Microsoft ruling: Foundation to settle
MJP is more than alphabet soup
Letters to the Editor
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Legal Tech - A look back at six years of technology news
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You Need to Know
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MCLE Self-Study
A word from our sponsors
Self-Assessment Test
MCLE Calendar of Events
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Ethics Byte - Let's go surfin' now, everybody's learnin' how
Recovering alcoholic may get to recover his license
Attorney Discipline
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Public Comment
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Bar targets unauthorized practice
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President, State Bar of California
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Palmer Madden, President, State Bar of CaliforniaUnauthorized practice of law (UPL) is a common occurrence in California. Deciding what to do about it has proven to be a challenge to the State Bar because it must serve several masters. The State Bar represents attorneys in California. Attorneys want the bar to actively prosecute violators of the UPL laws. But the bar also must respond to the commands of the legislature and the courts.

While both the legislature and the courts support prosecution of UPL that has injured a consumer, they are not as interested in seeing the State Bar take on unlicensed people who are assisting those who cannot afford an attorney make their way though the legal process. Because of this tension, the bar literally has been debating for years what it should do about UPL.

This year, it looks as if finally the debate is over and an action plan is being adopted. Led by Maria Villa and Nancy Zamora, the board of governors is considering adopting a balanced strategy that will combine prosecution of cases where there has been consumer harm in conjunction with a commitment to work with the courts to increase access to justice. It is about time.

Defining UPL turns out to be anything but straightforward. Consider one extreme: one could say that anyone who gives advice to another about any law is engaging in UPL. Those who favor the guild model of the legal practice (i.e. those who believe that attorneys should be the sole portal though which citizens obtain access to the law) favor such a broad definition. There is a certain appealing simplicity to such a bright line definition. But there is zero chance of the courts or the legislature adopting such a definition because it would eliminate many activities that are today commonplace and regarded as socially useful.

In today's world, citizens have access to a variety of alternative ways of obtaining legal advice. Consider the most important investment decision made by people today, a transaction that occurs in a setting that is dense with legal issues and fraught with peril, the purchase of a home. In California every year, hundreds of thousands of people go to real estate agents, title companies and their accountants to obtain guidance about how to proceed through the legal thicket of a real estate purchase. Attorneys are rarely involved.

Similarly, people go to accountants to get advice about how to structure their finances to conform to the tax laws. Financial advisors guide people about managing 401K investments, another area surrounded by legal implications. Increasingly, middle class people, unable to afford attorneys, are turning to self-help books to guide them through legal issues. It is no longer only the poor who turn to unlicensed individuals who hold themselves out as family law or bankruptcy advisers. The middle class is increasingly seeking such assistance.

Even if the courts and the legislature wanted to put a stop to all such nonattorney advisors, they could not do it. But, most importantly, neither the courts nor the legislature wants to put a stop to such alternatives. To the contrary, both the courts and the legislature are increasingly exploring newer ways of opening up more channels for non-attorneys to provide low cost legal help to people.

For example, the courts are experimenting with legal kiosks in courthouses where nonattorneys will offer help about court procedures. The legislature has created new laws that authorize nonattorneys to provide advice in areas such as landlord-tenant law.

If the State Bar were to decide that it wanted to prosecute any unlicensed person who was advising about the law, the legislature and the courts would stop such folly. Given this reality, any approach by the State Bar that seeks to take a hard line attack on broadly defined UPL is doomed to failure. The courts and the legislature would not put up with it.

That said, both the courts and the legislature have heard horror stories about consumers who have been injured by unlicensed advisers.

The board of governors believes that both the courts and the legislature will support prosecution of UPL when there is proof of harm. With that thought in mind, the board is going to authorize the expenditure of dues funds to begin prosecution of UPL where there is proof of harm. The board also will explore the option of a dues check-off to support UPL prosecution.

At the same time the bar begins enforcement actions against UPL violators who are harming consumers, it also will press forward with efforts with the court to explore innovations that make it possible for consumers to obtain low-cost help with legal problems.

Some of these efforts will include considering rule changes that would allow attorneys to work under court supervision without some of the conflicts constraints that currently exist. Other efforts will look at ways of regulating nonattorneys who are providing consumers with assistance.

Attorneys have long criticized the State Bar for not prosecuting UPL violators. The bar is listening to its members and is moving towards a policy that will focus on prosecuting UPL violators who have harmed consumers.

It is going to take some time before we can see if this new policy is effective. But it is encouraging that the State Bar seems to have found a way to balance the sometimes conflicting goals of our members, the courts and the legislature.