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.
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? Its 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 Bars 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 Californias 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 bars 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 arent up to the technological curve because they dont 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 youre just protecting the monopoly?
Its a very difficult situation for the State Bar, so it tends to sit on the fence as
this phenomenon sweeps through California.