Bar tackles unauthorized practice

10-point plan focuses on UPL, but board members opt not to seek any statutory changes now which would impose fines

Staff Writer

Faced with significant opposition to its proposed crackdown on the unauthorized practice of law, State Bar executives last month offered a modified plan which includes stepping up litigation in targeted cases.

At the September Board of Governors meeting, two key committees approved a 10-point plan to handle the thorny problem of unauthorized practice (UPL) but decided not to seek any statutory changes at this time.

An earlier proposal to impose stiff penalties for UPL, including felony charges and civil fines of at least $2,500, was dropped. The board's legal and discipline committees had recommended approval in principle in July.

The 10 points

Other highlights of the 10-point plan include:

"We need to talk to judges, attorneys and paralegals and figure out where the real problems are and also define ‘the practice of law,'" said Tracy Genesen, an attorney with the bar's Office of Chief Trial Counsel. "Then we'll be in a better position to propose statutes that address the concerns."

Genesen said, however, that the bar will pursue its efforts to assist law enforcement agencies and protect clients from unlicensed lawyers.

Seeking a definition

In a memo to the board, bar executives said it is crucial to define UPL before any statutory revisions can be made.

"From a practical standpoint, it is evident that the absence of a widely recognized and accepted definition of what constitutes the ‘practice of law' or the ‘unauthorized practice of law' makes enforcement activity difficult," wrote executive director Herb Rosenthal, general counsel Diane Yu and chief trial counsel Judy Johnson.

The plan also seeks to reassure paralegals, publishers of self-help books and individuals who provide low-cost "scrivener" services that they are not the target of the bar's public protection efforts.

Paralegals were outspoken in their opposition to the earlier proposal and charged that the bar was trying to put them out of business.

"The proposal gives the bar the power to pick and choose who to pursue, in effect to regulate independent paralegals," said Helen Bellamy, president of the California Association of Independent Paralegals (CAIP).

"Since the State Bar is hostile to independent paralegals, it is a conflict of interest for the State Bar to regulate them."

But bar officials said their only goal in proposing stiff penalties for UPL was to stop nonlawyers and disbarred and suspended lawyers from setting up shop as licensed practitioners.

In recent months, they said, the bar has been asked to handle complaints about abandonment of clients by a nonlawyer, sophisticated "trust mills" that target elderly citizens, a suspended lawyer who was practicing, and an out-of-state attorney, unlicensed in California and barred from federal practice in California, who represented himself as a federal court practitioner.

Two suits filed

This summer, the bar filed two landmark civil suits to shut down the trust mill and an alleged illegal lawyer referral service.

It is a misdemeanor in California to engage in the unauthorized practice of law. Before its recent actions, however, the State Bar had not investigated UPL complaints since 1985.

Despite the creation of numerous committees, the Board of Governors has been able to agree on only a few of those committees' recommendations.

The legislature tried and failed in 1994 to require legal technicians to register with the Department of Consumer Affairs.