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2002 FINAL STATELEGISLATIVE PROGRAM CORE ISSUE ISSUE: UNAUTHORIZED PRACTICE OF LAW (CLIENT PROTECTION)SUMMARY: Challenges to the exclusive privilege of attorneys to practice law have been initiated in recent years and are likely to increase in the future. Pitted against each other are two conflicting ideals: preservation of high-quality legal services (professionalism) versus provision of affordable legal advice (consumerism). Over the years there have been many examples of non-lawyer professionals seeking and getting permission to perform legal transactions. Insurance companies, banks, real estate brokers, financial services, and title companies have competed with attorneys for the right to serve the public in specific areas of the law. To a certain extent these threats to the right to practice law have ebbed recently as the various professions have carved out their respective territories and have accepted a de facto truce. But subtle erosion of some privileges, such as the attempt in Congress in 2000 to provide accountants with the confidentiality protections of lawyers, continues to be a threat. More recently, individuals with some legal training who are not lawyers (referred to as paralegals, although legal technicians, legal assistants or limited law advisors are used frequently) have sought to establish qualified legal practices. Undergraduate training and new computer software packages enable paralegals to provide legal assistance to consumers at reduced prices. Among the services that have been marketed by paralegals are: (1) preparation of documents for uncontested divorces, probate proceedings, tax matters, residential real estate transactions, name changes, powers of attorney, living wills, revocable living trusts, incorporations, and stepparent or agency adoptions; and, (2) representation of others before administrative agencies or boards such as public utility commissions, workers' compensation boards, motor vehicle administrations, environmental permit bodies, rent court, and public assistance entities. The legal community has criticized the use of non-lawyers to perform these tasks by focusing on the poorer quality of the services and the lack of protection of the public when the services are inadequate. It is unlikely that the movement questioning the monopoly of lawyers to practice law will go away. A multitude of studies have been published that document unmet legal needs. Self-help legal courses and materials are growing. An anti-lawyer activist group operating under the acronym HALT (Halt All Legal Tyranny) has been pursuing legislation to establish greater access by non-lawyers in the legal system and to deprofessionalize the practice of law by turning it into a service industry. As the affordability of legal services becomes more remote, the public may begin clamoring for a lower quality of service in return for a cheaper price. In 1994 a bill was filled to permit members of the General Assembly who are not lawyers to represent constituents in summary ejectment proceedings in District Court. This proposal failed. In 1995 and 1996, a measure was submitted that would have enabled non-lawyer advocates to provide assistance during judicial proceedings to victims of domestic violence. The MSBA supported the bill with the proviso that the lay advocates serve under the supervision of a lawyer, but the House Judiciary Committee chose to kill the bill. Another unsuccessful measure in the 1996 session would have carved out an array of actions in the small claims, bankruptcy and family law areas for non-lawyer practice. No bills concerning client protection issues were introduced in the 1997 General Assembly. In 1998, a bill passed to allow insurance companies to use non-lawyers, but only after it was amended to apply only to claims adjustment hearings. In 1999, the only piece of legislation in this area was a minor change affecting attorneys who work with Boards of Education. In the 2000 session no bills or amendments were introduced to broaden the scope of law practice by unauthorized professionals, but in 2001 legislation passed authorizing non-lawyers within state agencies to represent those bodies before the Office of Administrative Hearings. The MSBA Section of Administrative Law chose to take no position on this proposal. In some respects the unauthorized practice of law debate has become overshadowed by the multi-disciplinary and multi-jurisdictional practice issues that have arisen in recent years. The ethical and practical implications of lawyers and accountants becoming joint partners in a common professional practice in all likelihood will occupy center stage in the continuing discussions over how to best serve the needs of the public in providing legal services. And the prospect of dramatic changes in bar admission methods throughout the 50 states will be a source of concern to traditionalists who are comfortable with the present system. MSBA 2002 POSITION: Oppose all legislation that would expand the rights of non-lawyers to perform those services that have been provided by attorneys in the past. Monitor all bills dealing with paralegals with careful consideration of bills that would establish licensing of paralegals by non-judicial agencies. SAMPLE LEGISLATION:
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