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
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
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
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
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.