Unauthorized Practice of Law - Lawyers

1 22 Arizona Attorney u January 1999 UnauthorizedPractice ofLawShould We Just Give Up?by Robert B. Van Wyck and Lynda C. ShelyThis article is the first in a series of articles pertaining to theunauthorized Practice of law (UPL) in Arizona. This inaugu-ral article will cover: 1) the basics of what constitutes UPL; 2)why there allegedly is no regulation of UPL; 3) what the State Bar andother entities actually are accomplishing in consumer protectionagainst UPL; and 4) what Bar members ethically are obligatedto do when confronted with UPL articles on UPL will be provided from differentsections of the Bar, the bench and non- Lawyers .

2 Topics will in-clude current developments from around the state, detailing suc-cesses in protecting the public from the harms caused by UPL as wellas recommendations on how to assure that members of the public receivecompetent legal BY ROBERTA HANCOCKJ anuary 1999 u Arizona Attorney 2324 Arizona Attorney u January 1999 What Is the Unautho-rized Practice of Law?There is no specific definition of UPL . Courts have struggled with theconcept but have clearly defined whatis the Practice of law. [T]he prac-tice of law is a matter exclusivelywithin the authority of the Judiciary.

3 Hunt v. Maricopa Cty. Emp. Merit Sys-tem Com n, 127 Ariz. 259, 261, 1036 (1980).There is no statutory definitionfor the Unauthorized Practice oflaw. The Practice of law is definedin case law as preparing legal docu-ments, giving legal advice or simplynegotiating a legal matter for some-one. See In Re Fleischman, JC-96-003(March 1997), citing State Bar of Ariz. Land Title & Trust Co., 90 , 95, 366 1, 14 (1961), mod. othergrounds, 91 Ariz. 293, 371 P. 2d 1020(1962). These cases clearly confirmthat the Practice of law is not limitedto conduct occurring in a courtroom.

4 The Practice of law may take placesimply by preparing a legal documentfor someone Supreme Court Rule31(a)(3) provides: Except as hereinafter provided insubsection 4 of this section (a), noperson shall Practice law in thisstate unless he is an active mem-ber of the state bar, and no mem-ber shall Practice law in this stateor hold himself out as one who maypractice law in this state, whilesuspended, disbarred or on disabil-ity inactive status. Thus, anyone other than an attor-ney or someone supervised by a mem-ber of the Bar who prepares legal docu-ments, gives legal advice or attemptsto negotiate a legal matter for some-one is engaged in the unauthorizedpractice of who employ paralegals orother non-lawyer support staff to as-sist in the Practice are required by and ER to supervise those em-ployees to assure that they do notengage in UPL.

5 If such staff prepareslegal documents, it is not the unautho-rized Practice of law so long as the at-torney reviews the Did We Get toThis State of Affairs?In 1933 the Arizona legislaturepassed a statute making the unautho-rized Practice of law a 1984, the Arizona legislature andthe Arizona Supreme Court had a dis-agreement over the legislature spower to involve itself in State Barmatters. The Supreme Court con-cluded that regulation of the practiceof law was within its exclusive prov-ince. As a result all statutes in Title32 of the Arizona Revised Statutes re-lating to the Practice of law weresunsetted.

6 Included in the sunsettingwas the misdemeanor statute on theunauthorized Practice of 1984 the State Bar and thelegislature have tried a number oftimes to seek some form of consumerprotection regulation against UPL. In1990 the State Bar Board of Governorscreated a Task Force on UPL, whichmet for two years, holding publichearings on the subject. Ultimately,based upon hearing testimony anddocumented incidents of harm, theTask Force recommended to theBoard of Governors that a Non-law-yer Practice Commission be createdto regulate the provision of certainlegal services by paralegals directly tothe public.

7 The Commission wouldestablish educational requirementsand standards of conduct for the regu-lated paralegals. In 1994, the Board ofGovernors submitted a petition to theSupreme Court to amend the Court srules to create the Commission. TheCourt never issued a formal opinionon the the 1993 legislative session,Senator Marc Spitzer introduced abill that would have restored crimi-nal sanctions to UPL. The bill wouldhave made such conduct a Class 5felony. The bill died after the SenateCommerce Committee significantlydiluted its last legislative attempt to regu-late UPL came in 1995, when JohnGreene, then president of the ArizonaSenate, introduced Senate Bill bill proposed making UPL aClass 6 felony.

8 The bill contained sev-eral exceptions to the definition ofUPL that would have permitted non- Lawyers to prepare certain the wake of vigorous lobbyingagainst the bill by both members of theBar and non- Lawyers , the bill died inthe House Judiciary Bar leadership supported boththe 1993 and 1995 legislative at-tempts as important consumer pro-tection measures. The Bar learnedthree valuable lessons from thesefailed efforts at consumer protection:1) the legislature does not perceivethat there is consumer harm fromUPL; 2) non-lawyer businesses are ca-pable of presenting a unified, effec-tive lobbying effort to protect theirbusinesses.

9 And 3) we must somehowachieve a consensus by Bar memberson what to do about a 1997 survey of Bar membersregarding UPL, 43 percent of Barmembers wanted to eliminate UPL,39 percent wanted to regulate non- Lawyers , and 14 percent prefered thatthe Bar not spend any time or energyon this subject. In the same survey ofthe public, a majority of the public er-roneously believed that the Bar al-ready regulated document preparersand independent the divergence in views of ourown Bar members, and misperceptionsby the public about who is authorizedto Practice law in Arizona, it appearsthat the Bar must engage in some sig-nificant groundwork before seekingany form of regulation in this Anybody DoingAnything About UPL?

10 As noted above, there is tremen-dous misunderstanding about UPL byboth the public and Bar members. Citi-zens believe that if a document prepa-ration business is operating, then it is legal. They also think that the Barregulates anyone engaged in the prac-tice of law. Bar members believe thatnothing is being done about UPL,which is only partially true. The firstobjective in doing something aboutUPL must be to further educate ev-eryone who has some contact withthe problem. The second objective isJanuary 1999 u Arizona Attorney 25to use those enforcement mechanismsthat currently exist to protect thepublic from the harms caused by un-regulated, unaccountable businessesattempting to Practice ,Education, EducationThe State Bar s Consumer Protec-tion Committee will be creating pub-lic service programs that will provideconsumer groups with informationabout how to obtain legal informa-tion and who is authorized to give le-gal advice in Arizona.