1. The Unauthorized Practice of Law Balancing Need to Protect the Public and the Need for Low Income Legal Services

2. History of the Regulation of UPL Regulation of the Legal Profession in General State High Courts – Inherent Powers State High Courts – Inherent Powers Bar Association Bar Association Bar Associations History of Regulation Early on Courts UPL regulation focused on who appeared before the court Early on Courts UPL regulation focused on who appeared before the court Outside the Court Non-laywers performed what today would constitute UPL Outside the Court Non-laywers performed what today would constitute UPL Prohibitions on UPL Rose during the Great Depression along with the integration of Bar Assocations Prohibitions on UPL Rose during the Great Depression along with the integration of Bar Assocations

3. Current Regulation of UPL State Courts Inherent Powers Inherent Powers Create Practice of Law Definitions Create Practice of Law Definitions Case Law Case Law Some States claim exclusive domain over regulation of UPL Some States claim exclusive domain over regulation of UPL State Statutes Practice of Law Definitions Practice of Law Definitions Bar Association Regulation through attorney codes of conduct and disciplinary proceedings Regulation through attorney codes of conduct and disciplinary proceedings Prevent members (attorneys) from aiding or abetting a non- lawyer from performing anything that may fall within the definition of the practice of law Prevent members (attorneys) from aiding or abetting a non- lawyer from performing anything that may fall within the definition of the practice of law

4. Determining What Constitutes the Practice of Law Practice of Law Definitions State Statutes and State Court decisions determine what falls within the definition of the practice of law State Statutes and State Court decisions determine what falls within the definition of the practice of law Mostly on a case-by-case basis Mostly on a case-by-case basis Activities that constitute the practice of law Activities that constitute the practice of law Appearing before a court or tribunal on behalf of an individual Administering advice on a subject typically within the perview of “lawyer activity” Exceptions Exceptions E.g. Do-it-yourself books or certain computer application software

5. Need for Legal Services (Low Income Community) ABA study – 80% or more of low-income persons are unable to obtain legal assistance Legal Aid Segment of population that does not qualify for legal aid, yet still can not afford legal services Lawyer Referral Programs Lawyer Referral Programs UPL prohibitions restrict access to the justice system for low to moderate income individuals

6. Dangers and Risks Associated with Consumer Access to Non-lawyer Services Quality of Service Lawyers must attend 3 years of school Lawyers must attend 3 years of school Bar examination Bar examination Professional monitoring and CLE Professional monitoring and CLE Ethical Constraints Duty of Loyalty, Confidentiality, Diligence, Competency, etc. Duty of Loyalty, Confidentiality, Diligence, Competency, etc. The Lawyer Monopoly Lawyers motivated for personal reasons Lawyers motivated for personal reasons Threat to established profession Threat to established profession

7. Benefits Association With Consumer Access to Non-lawyer Services Increased Access to Justice System for Low to Moderate Income Individuals Increased Efficiency Increased Incentive to Incorporate Technology into the Legal Profession

8. Possible Solutions In General Struggle to Find Appropriate Balance Between Consumer Protection and Increased Access to the Justice System Struggle to Find Appropriate Balance Between Consumer Protection and Increased Access to the Justice System

9. Possible Solutions Complete Prohibition Proponents argue… Proponents argue… Best protects consumers from dangers of nonlawyer legal services Prevents misuse of judicial power

10. Expand the Interpretation of States Practice of Law Defintions More activities would be considered the practice of law and thus considered UPL Leaves a little room for courts to determine what activities can be performed by non- lawyers Restricts Public’s access to Justice System Texas – leading proponent of this approach

11. Narrow the Interpretation of States’ Practice of Law Definitions Reduces amount of prohibited non-lawyer activities Question – When Performing Activities That do not fall within the state’s defintion of the practice of law, are lawyers still bound by same restraints? Washington – leader in this approach 2 definitions – one applicable to lawyers and one applicable to non-lawyers 2 definitions – one applicable to lawyers and one applicable to non-lawyers

12. Four-Factor Test Case-by-case basis Four Factors Reliability of Service Reliability of Service Potential for Conflict of Interest Potential for Conflict of Interest Service’s potential to mislead consumers\ Service’s potential to mislead consumers\ Whether non-lawyer has addressed privacy and confidentiality concerns Whether non-lawyer has addressed privacy and confidentiality concernsProblems Flood Courts with litigation Flood Courts with litigation No uniform interpretation of what constitutes UPL No uniform interpretation of what constitutes UPL

13. Expand the Role of Social Workers Relax prohibitions for certain persons or professionals Individuals are more willing to bring legal issues to social workers Provide training – eventually integrate some legal training into social work master’s programs Work out of local Community Centers

14. Mandatory Paralegal Regulation Benefits Discourage overbilling for non-paralegal work at paralegal rates Discourage overbilling for non-paralegal work at paralegal rates Help address the concern of protecting public from incompetence Help address the concern of protecting public from incompetence Lead to increase access to the Justice System Lead to increase access to the Justice SystemProblems Certification Requirements may drive up costs of paralegal services Certification Requirements may drive up costs of paralegal services Work may be shifted to members of support staff that may not be qualified to perform services Work may be shifted to members of support staff that may not be qualified to perform services

15. New Approach… Expand the Role of Students in Clinical Programs Some schools already have existing student clinical programs Potential student tasks Assist in Pro-se Divorce proceedings Assist in Pro-se Divorce proceedings Represent clients in Real Estate Closings Represent clients in Real Estate Closings Simple Will production Simple Will production Estate Planning Estate Planning Build in Increased Training for Particular Subjects

16. Conclusion Must find the appropriate Balance between protecting consumers and providing increased access to the justice system